Media doesn't do enough to police, prevent or penalise privacy intrusions

So says Mark Day in his column in The Australian today, the first mention in News Ltd publications of the Keating speech last Wednesday on the media and privacy. Day accepts "that the checks and balances of the existing system, which Keating says are self-serving and inadequate, are sometimes not enough to police and prevent privacy intrusions, or to penalise them."

He takes the same line on reform as that first suggested by ABC Managing Director Mark Scott 18 months ago, but strongly resisted to date by Day's employers: it is probably wiser that the media get into discussion now about sensible reforms to privacy law "before the legislature loses patience with the self-regulation regime and imposes standards of its own."

Day notes but doesn't have much to say about specific suggestions by Keating and the Australian Law Reform Commission for improving the media self regulatory schemes for protection of privacy generally, but focuses on the proposed cause of action for breach of privacy, and in particular the implications for conduct in the public domain. He says the idea we all have some right to privacy might be well and good,

"but how could it be enshrined in law? A photograph of a bone-jarring tackle at the footy may include, in the background, a clearly identifiable philanderer and his mistress. Would a media outlet be liable in a resulting divorce?"

The Australian Law Reform Commission Recommendation 74 answered both questions befre they were asked.

The defining elements of the Commission's proposal are that there has been a serious invasion of privacy where the person concerned had a reasonable expectation of privacy; and the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities. In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court would be required to take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).

Taking the mistress to the footy and seeking to sue because you showed up in the background in a photo of action on the field isn't likely to pass first base.

As the Commission report (74.135) says, "the cause of action only will succeed where the defendant’s conduct is thoroughly inappropriate and the complainant suffered serious harm as a result." And continues:

74.136 The characterisation of the cause of action as a ‘serious invasion of privacy’ also will clarify the types of matters intended to be covered by the action, and allay many of the concerns raised in submissions. For example, street art generally would not fall within the scope of the cause of action. A claimant simply captured in a photograph of a street scene, taken in the manner suggested in some of the submissions, is unlikely to be able to establish either that there was a reasonable expectation of privacy or that the act complained of would be highly offensive to a reasonable person of ordinary sensibilities. 

74.137 It is neither feasible nor desirable to attempt to list or limit the types of acts that may be found to be highly offensive to a reasonable person of ordinary sensibilities. As noted above, matters the ALRC previously considered to be worthy of protection through a cause of action include sensitive facts relating to a person’s individual relationships, health, home, family and private life. Acts or disclosures revealing this type of sensitive or intimate information are the most likely to meet the test of what would be highly offensive.

Media commentator Margaret Simons, in a subscription only article in Crikey on Friday, described the Keating speech as "a cool, clear and ..unassailable argument for sensible privacy legislation." Roger Clarke of the Australian Privacy Foundation in an interview on Razor's Edge says media self regulation in this area is a joke.