Keating puts the case for some privacy in the face of "media free for all"

AAP

In a speech last night at the Centre for Advanced Journalism at the University of Melbourne, former Prime Minister Paul Keating while acknowledging the importance of freedom of expression, urged industry leaders to drop the pretence that the current framework within which the media deals with privacy issues is effective and works well; suggested some practical steps to return privacy to its proper place in the ethics, professional standards and self regulatory systems that apply to journalism; and argued the case for a statutory cause of action for a serious and unwarranted breach of privacy, as recommended by the Australian Law Reform Commission in 2008. The full text of his remarks posted by the National Times is here, and with footnotes here if you are interested (I provided some research input to the speech.) There is some coverage in Fairfax papers, including this op-ed in The Age, and the ABC today, but little so far in News publications. See also Jonathon Holmes of Media Watch, and Andrew Crook in Crikey.

Instead of standing aggressively behind the status quo, dressed in the cloak of the Fourth Estate, Mr Keating said industry and profession leaders needed to talk more about responsibility, more about the importance of ethics, more about improvement in the standards of journalism in all respects, including respect for privacy.  He said proposed changes to privacy laws announced recently by Minister of State Ludwig to allow for financial penalties for Federal government agencies and big business found to seriously breach privacy principles is likely to concentrate minds on the importance of  privacy a little more than hitherto. Media organisations currently enjoy an exemption from the Privacy Act on condition they accept self regulatory schemes. However the schemes are largely ineffectual particularly when it comes to penalties and enforcement. The industry needs to consider whether thrashing serious breaches of privacy with a warm lettuce should continue to be all that their self-regulatory systems can deliver.

Media organisations would be sending an important message about where they stand on these issues if they indicated they are prepared to work with, not against, the modest reforms to the self regulatory schemes proposed by the ALRC for continuation of the media exemption.

Mr Keating said industry and profession leaders should get back to an issue which has defied reformers for years: the idea that with regard to ethics and standards, including respect for privacy, all would benefit from unified arrangements rather than the current generally unsatisfactory system where different codes of practice and different standards apply across the broadcast and press industries.

More attention was clearly needed to guidance, education and training about privacy and the public interest for those engaged in journalism when some senior journalists and those to whom they report claim the public interest is anything the public might find interesting. The public interest requires a judgment that the community as a whole would benefit from publication, not what readers or an audience might find interesting or titillating.

On the proposed general cause of action for a serious and unwarranted breach of privacy proposed by the Commission, Mr Keating said the case for change was that dangers to privacy are escalating dramatically, driven largely by technological change; that the common law case by case exploration of whether there is recourse for breach of privacy is a slow piecemeal and fragmented process likely to lead to different approaches in different jurisdictions; that legislation would give effect to our international obligations under Article 17 of the International Covenant; and that the need for better protection of privacy is being recognised in comparable countries including traditional ‘peer law’ countries for Australia such as the UK and New Zealand, as well as Canada and parts of the US. 

With regard to the media (and the proposal was for a general cause of action and was not aimed specifically or solely at the media) the Commission proposal set a suitably high bar for any plaintiff who sought to pursue the matter through the courts. A plaintiff would have to demonstrate a serious breach of a reasonable expectation of privacy, and conduct offensive to a reasonable person, not outweighed by other important rights such as freedom of expression. As ABC Managing Director Mark Scott said last year:

With digital surveillance, location tracking and genetic tracing becoming commonplace, there is a very firm case for the law to allow people to protect thprivacy. It is a fundamental human right…the Australian Law Reform Commission proposal for a new statutory right of privacy, properly word is a sophisticated idea worthy of serious debate. To dismiss even the need to address the issue-the need to have a thoughtful and comprehensive debate – doesn’t seem to be in keeping with the openness and plurality of perspectives that media freedom should be about’.

There hasn't been much of that debate in the media since. Perhaps the Keating speech will reawaken media, and broader community interest.