Privacy Law and Policy Reporter
In October, the Communications Law Centre launched its latest research paper, Privacy and the Media, by Paul Chadwick and Jennifer Mullaly. The publication of the paper coincided with intense public interest in the issue of media invasions of privacy following the death of Princess Diana.
The paper aims to demonstrate that the issue is a complex one that requires the perspectives of both journalism and the law to be taken into account. While there is a need for more effective remedies for breach of privacy, greater attention needs to be focussed on understanding the cause of media invasions of privacy and achieving changes in journalistic practice. Better management of the tension between media and privacy is part of the larger issue of better media accountability for the power it wields.
Part one sets the context by exploring theoretical understandings of privacy and concepts relevant to the media’s important function of informing the public, including free speech, public interest and the right to know. The multi-dimensional nature of privacy — encompassing privacy of place, of the person and of information, and freedom from surveillance — is particularly relevant. The media have the potential to breach each of these zones in the process of news gathering and by publication.
There is potential for tension between the media’s imperatives of investigation, disclosure and discussion, and privacy, which accords priority to individual autonomy, in particular, the ability of the individual to control personal information. The concept of the public interest is a major aspect of the process of striking a balance between speech and privacy. Media breaches of privacy can be justified where a superior public interest is served by the disclosure of the particular information. This is an important and necessary defence, but one that tends to be invoked too readily to justify any invasion of privacy and that requires more subtle analysis, particularly in relation to media disclosures about public figures.
Part two deals with the media and privacy. A complex interplay of factors contributes to the occurrence of media invasions of privacy, including changing news cultures, competition, technology, lack of training and the different demands of press, television and radio. The paper emphasises the role that effective media self-regulation can play in the prevention of privacy breaches, and discusses the privacy standards contained in codes of practice and editorial policies and the self-regulatory processes of journalists and print and broadcast media.
The third part of the paper examines the legal protection of privacy. A mosaic of common law actions, among them trespass, nuisance, defamation and breach of confidence, may provide a remedy for some media invasions of privacy. But this privacy protection is fragmentary, a by-product of the protection of different interests, such as reputation and property rights. It is also limited by the prohibitive cost of access to justice and the likelihood of further publicity resulting from legal proceedings.
The paper also considers the experience in the United Kingdom, which debated the introduction of a privacy tort following Sir David Calcutt’s 1990 and 1993 reports on privacy and media self-regulation, and in the US, which has a longstanding common law privacy tort. But it cautions that while it is important to have regard to such overseas debates and experiences, they should not be transposed automatically to the Australian context. In particular, the death of Princess Diana has the potential to distort debate in Australia about the media and privacy.
Communications Law Centre, Melbourne.
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