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Sunday, July 24, 2011

Chicken little on privacy

Friday's The Australian had the front page lead "Privacy moves no risk to free press" quoting Minister O'Connor to this effect. But that paper, others in the News stable and some elsewhere didn't falter in presenting a different picture on Friday (nor did the radio shock jocks, rejoicing at "another Gillard government howler") and over the weekend. We've had assertions that a statutory right would constitute a new barrier to entry into the media business, strangle press freedom, stifle investigative journalism, and countless other dire consequences. And of course that any such proposal would only be aimed at the media. None of the issues referred to in this post have had a look in so far. Full marks to Tom Hyland in the West Australian for this good summary of reactions including some I hadn't seen. As to chicken little:
News publications

In "Undoing free speech a sop to placate Bob" Legal Editor at The Australian Chris Merritt on Friday predicted calamity in the media industry through rising costs, suggested greedy lawyers were behind all this and bizarrely, that The Australian's market position would benefit:
A privacy tort is clearly aimed at intimidating the media, particularly News Limited, publisher of The Australian, the newspaper Brown loves to hate. The effect will be to raise the cost of doing business for the entire media industry. The privacy lobby is dominated by lawyers for a reason: a privacy tort would be a rich vein for lawyers. It would replace much of the legal work that was lost when the privacy elements in the defamation defence of truth were removed back in 2005. Since those changes, the media has known that if it publishes the truth it will be protected from defamation. Before those changes, defamation operated as a quasi-privacy tort. By reversing that, the costs of running a media business will grow. That will raise the barriers to entry and entrench the position of existing media outlets such as The Australian.
In the Weekend Australian Merritt was on a roll: no case had been made for legislation, it would constitute a radical shift in media law, introduce a system of penalties that are far more onerous than anything ever experienced by the Australian media, establish a system that has the potential to be in conflict with the brand new federal shield law that protects journalists' confidential sources, negate the decision of the Labor states of six years ago to eliminate those parts of the state defamation laws that were operating as a quasi-privacy tort.... On and on and on: in sum, the ALRC had "designed a system to remedy a non-existent mischief."

Friday's greedy lawyers were forgotten by Saturday as Merritt hit upon a 2008 submission by the lawyers peak body that people already had adequate recourse to redress for breaches of privacy. (As to its opinion in the light of developments since??)

On lawyer watch, The Weekend Australian gave the supportive former High Court justice Michael Kirby a run perhaps balancing to some extent the predictable negative opinions of three media industry lawyers quoted in Friday's Australian ("Privacy tort will 'shield rich and powerful') by Joe Kelly and Siobhain Ryan (emphasis added):
Lawyer Justin Quill, who acts for News Limited and other media companies, predicted the new privacy tort would strangle press freedom while shielding the rich and powerful from scrutiny....

... media law expert Nicholas Pullen warned against "knee-jerk" political reaction to the crimes committed at the British tabloid. He said a statutory right to privacy could stifle investigative journalism, and called for the government to return to first principles and define what it meant by privacy...

Andrew Stewart, head of the Australian media and content group at Baker & McKenzie, said there were already sufficient privacy protections in media codes of practice, trespass and telecommunications laws.
(Fairfax's The Age also wheeled out one of its legal advisers Sandip Mukerjea from Minter Ellison who joined the chorus suggesting "there is little evidence that such a provision is needed"or if it were enacted that it would have any work to do. (Neither Stewart nor Mukerjea made the point that therefore all the excitement and dire predictions must be misplaced.))

News (Sydney) Daily Telegraph editorial on Saturday didn't muck about (emphasis added):
The concept of a general right to sue for privacy, as is now being softly market-tested by the government, is a jackal disguised as a dove. Written into law, it would inevitably be exploited by politicians and the powerful to conceal their activities from legitimate media scrutiny while doing nothing to enhance the security of ordinary citizens.
News (Adelaide) The Advertiser wrongly claimed that legislation would provide a defence to stop any information deemed embarrassing or compromising reaching the public.

News (Melbourne) Sunday Herald Sun "welcomes the debate on press freedoms and privacy, but does not support a privacy tort" because politicians, wealthy elites, and criminals with clued-in lawyers will be the beneficiaries. However readers might take some comfort from this rare mention of the other side of freedom:
With press freedom comes enormous responsibility and the Sunday Herald Sun and our sister News Ltd publications in Australia strive every day to uphold the highest standards.
News (Brisbane) Courier Mail thought it was more important to decry government intrusion into privacy- a good subject but not quite on song.

News (Hobart ) Mercury appears to have ignored it all so far.

Non News views
Somewhat calm and measured in comparison.

Half a hat tip at least to the aforementioned West Australian.

The Fairfax SMH editorial while pointing to all the well known complexities involved and arguing for better protection of free speech, acknowledges that "(u)unnecessary intrusions do occur, regrettably, and there are arguments to back the call for individuals to have legal redress." Tim Dick in the SMH provided some balance and suggested a negotiated statutory approach to dealing with the gap in the law was the best bet for media organisations.

Crispin Hull after this article in the (Fairfax) Canberra Times can forget about Christmas cards from colleagues after suggesting the answer was to restore the public interest test to defamation law instead of a new course of action for invasion of privacy. He seems to not appreciate the difference between the right to reputation and the right to privacy in certain circumstances.

The last word for the moment to Crikey's Bernard Keane who summed up well on Friday:
"None of the responses addressed the basic question of what any media outlet has to fear if a public interest exemption applies to any right to privacy – especially a right that, as the Australian Law Reform Commission recommended, is set to a very high test for plaintiffs. That is, what are they doing now that isn’t in the public interest?... privacy needs to be seen on a broader spectrum than merely the mainstream media, which specialises in one type of very public assault on privacy. That spectrum includes the huge new media data mining operations that power some of the biggest corporations in the world, and it also includes governments around the world, which are in the midst of a ruthless counterattack against online privacy, including our own, which has apparently taken a paint-the-Harbour-Bridge approach to extending the powers of ASIO to spy on us. In that context, a statutory right to privacy is one very small shield against a vast effort to find out everything about you.


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