McLeod, Chris --- "When privacy laws undermine democracy" [1999] PrivLawPRpr 37; (1999) 6(2) Privacy Law & Policy Reporter 16

When privacy laws undermine democracy

Chris McLeod

Where does public interest stop and the right to privacy start? That question has hung over proponents of free speech and privacy alike for many years.

There is no general right to privacy in Australian law. Various bits of State and Commonwealth legislation restrict the way in which government information and credit records can be used. Freedom of information laws supposedly make government information available for public scrutiny in some circumstances. In fact, they often have the effect of restricting access to information.

From a newspaper’s perspective, public interest remains the prime concern in making decisions about what to publish and what not to publish — what should members of the public know that will help them make informed decisions about issues that might affect them?

Legislation that bestows on someone a specific right to privacy would seem to be a good idea on the face of it. But how far should it go? The Canadian province of Quebec has adopted a Charter of Human Rights and Freedoms that guarantees its citizens a right to respect for his private life (it is to be assumed that the right applies equally to females).

The Canadian Supreme Court last year upheld the right insofar as it applied to the publication of someone’s photograph without their permission.

This seems to mirror, not surprisingly, the interpretation being put on privacy by the French courts. The Quebec case involved the publication in an arts magazine of a picture of a 17 year old girl sitting on the steps of a building in a Montreal street.

Yes, the picture was taken in a public place, but no, it wasn’t published with her permission. The court concluded that the right to ‘one’s image’ is included in the right to respect for one’s private life which is guaranteed by s 5 of the Quebec Charter. Now this is all very well, but what about freedom of expression? The Quebec Charter provides for such an exemption, but it did not apply in this case. The court provided some examples where someone should not expect to avoid being photographed: people engaged in public activity or who had acquired a certain degree of notoriety. The court qualified the circumstances further to apply this principle to those whose ‘professional success depends on public opinion’ or ‘previously unknown individuals called upon to play high profile roles in public matters’, such as in an important trial or in activities involving the use of public funds or involving public safety.

Across the Atlantic, the French have taken privacy law to extremes. The Daily Telegraph in London reported that in France, legal action for breaches of ‘the right over one’s image’ has exploded. This right, theoretically, is infringed by anyone who photographs a crowd, a group or a person without first obtaining formal consent. For example, a male nurse photographed standing behind President Chirac as he toured a hospital is suing publications that published the picture for damages, claiming he did not want to be seen near the president. A magistrate in Nanterre said recently that ‘photographing anyone without permission is a serious offence’. And it is turning into a financial bonanza, with one French lawyer saying that a new case is launched every day.

The parents of a boy photographed at the head of an anti-National Front demonstration demanded almost $50,000 from the magazine that published the picture. Three young North Africans were awarded around $7000 each after a photograph showing them holding up their identity cards at a 1989 press conference was republished six years later.

The law protecting the individual’s right ‘to respect for one’s private life’ dates from 1970, when it was dubbed the Bardot law in honour of its first beneficiary.

But the stringent application of the law these days has French photographers — not only from the press but art photographers as well — up in arms. Christian Ducasse, of the French association of journalists, reporters and filmmakers, told the Telegraph:

There’s a new case every day. In the past only celebrities sued. Now the judges have decided it’s the turn of the average man in the street. But it is impossible to ask a crowd of demonstrators if it minds being photographed.

Citing last year’s triumphant World Cup crowds as an example, he said: ‘I heard people around me say, “Let him go ahead; don’t stop him, we’ll hit the jackpot later.”’

The work of photographers such as Henri Cartier-Bresson and Robert Doisneau has virtually been ruled out of order. They are noted for the photographs of the passing scene, but if they photographed people without their permission they would now face the wrath of the courts.

Privacy and photography came to prominence around the world with the death of Princess Diana in Paris in 1997. At the height of the debate about whether photographers were to blame, a group of Hollywood actors, including Arnold Schwarzenegger, Tom Hanks and George Clooney, began lobbying the State of California for privacy protection.

They were successful. California now has some of the toughest privacy laws in the world to protect its apparently camera-shy movie stars. The laws that took effect on 1 January this year permit someone to take legal action when a person is photographed or filmed ‘in circumstances where they had a reasonable expectation of privacy’. The move has been welcomed by the celebrities, and to many it seems reasonable.

However, the California Newspaper Publishers’ Association and the American Civil Liberties Union claim it threatens the freedom of press that is actually guaranteed by the US Constitution.

The hypocrisy of the complaints by movie stars is obvious; they actively court publicity when it suits them, but when there’s a whiff of a scandal up go the shutters and out come the lawyers.

But the movie stars haven’t finished yet. Mary Bono, the widow of Senator Sonny Bono who replaced him in the Senate, is promoting a Bill that would jail or fine photographers who persistently follow celebrities. The Bill also seeks to ban ‘visual or auditory enhancement devices’ (presumably microphones and telephoto lenses).

Few people argue that there should not be laws to prevent such invasions of privacy as those committed by the NSW motel operator who planted secret cameras in the ceilings of his motel rooms, or the hotel security guards who recorded guests enjoying private moments. But a general privacy provision such as ‘in circumstances where they had a reasonable expectation of privacy’ lends itself to considerable interpretation in the courts.

In countries such as Australia, the common law develops as we go along. So it would not be out of the question that eventually a newspaper publishing a photograph of a leading politician leaving a brothel just days before a crucial vote on legalised prostitution could be sued for a breach of privacy while having done the community a huge favour. Journalists would therefore like to think there will be a public interest defence to an alleged breach of privacy.

Australian governments, State and Federal, are inching towards a tort of privacy that extends beyond government information and credit applications. Previous attempts to introduce privacy laws were linked to defamation reform. The effect of this would have been that if a breach of privacy was found, a guilty finding on defamation would have followed automatically. For the media that was an untenable situation. In the example of the politician at the brothel, his privacy certainly was breached — but surely the voting public would need to know that someone voting in favour of legalised brothels was in fact a customer.

Sanity prevailed, but privacy legislation is still on the agenda in this country. In a recent approach to state Attorneys-General Departments, a newspaper publishers’ group was left in no doubt that the only way there would be any move towards uniform defamation laws in this country would be to support the extension of privacy laws.

The problem with privacy laws is the same as the basic flaw in defamation law: it will serve to protect the lawmakers themselves from the scrutiny they should have in any democracy.

Politicians will exploit the law to suit themselves. The media will be in a no-win situation: privacy protection is marketable to voters, after all.

But it may also serve to prevent voters being told things they should know.

Chris McLeod is the Editorial Development Manager of the Herald Weekly Times, Melbourne.

This article first appeared in the PANPA Bulletin and is reprinted here by kind permission of the Pan Australian Newspaper Publishers Association.