Pearce, Dennis --- "Privacy and the press: issues of balance and perspective" [2003] PrivLawPRpr 57; (2003) 10(7) Privacy Law and Policy Reporter 132

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Privacy and the press: issues of balance and perspective

Dennis Pearce AUSTRALIAN NATIONAL UNIVERSITY

This paper was presented at the 25th International Conference of Data Protection & Privacy Commissioners in Sydney in September 2003. It is reproduced here by kind permission of the author and the conference host, Office of the Privacy Commissioner, Australia.

I have been asked to deal with one part of the broad topic with which this session is concerned — the conduct of the media in so far as it might violate a person’s privacy. This is a significant aspect of the topic, as media publication is likely to constitute the most public revelation of a person’s private affairs.

I will direct my attention only to issues relating to privacy and the printed media (which I refer to as the press). While my remarks are generally applicable to other forms of media, I have limited the examples I use to material published in the press. I have also drawn on my knowledge of the operations of the Australian Press Council from my time as its chairman to illustrate the handling of complaints of invasions of privacy. I do not have sufficient direct knowledge of the methods by which privacy breaches by radio and television are dealt with to be able to speak of them with any authority.^[1]

It should be noted at the outset that following the enactment of the Privacy Amendment (Private Sector) Act 2000 (Cth), the Press Council, in conjunction with its constituent members, developed a set of privacy standards. The standards are available at <www.presscouncil.org.au> and were reprinted in (2002) 8(8) PLPR 164.

Some examples of press invasion of privacy

Consider the following cases.

A major city newspaper published a story about the release from prison on parole of a person convicted of the abduction and murder of a small girl. Included in the article was the address where the person was residing.^[2]

Does it make any difference to your view of the case that the house where the person was residing was over the road from a primary school? Or that after the person left the address disclosed, the newspaper did not publish his new address even though it was aware of it?

A regional city newspaper published the address of the rented holiday house at which the Prime Minister was staying, together with a map showing how to get there and a suggestion that its readers visit to talk about the economic and employment problems of the city in which the paper was published.^[3]

Does it make any difference that the Prime Minister had made much of the fact that he always took his holidays in the one place as a ‘man of the people’ and had provided photo opportunities to other papers at his holiday house? Is it significant that since ceasing to holiday at his regular place, no newspaper has published any details of his holidays?

A boating accident resulted in the drowning of five members of an extended family. The principal weekend newspaper in Hobart, the city where the accident occurred, published an aerial photograph of the bodies of the victims washed up on rocks.^[4]

Does it make any difference that the identities of the individuals were not discernible but what was apparent was that none of the people were wearing life jackets? And that the newspaper had been running a campaign for some years warning of the need for life jackets and advocating the adoption of laws to make wearing jackets compulsory?

A newspaper published a story about an increase in the incidence of house burglaries. It referred to a person whose house had been broken into three times in an 18 month period. The person had been interviewed for the story but had asked that her name not be disclosed. The story identified the person by first name and suburb. It also said that she was a 26 year old public servant.^[5]

Does it make a difference that the incident occurred in Darwin, where identification of the person would be easier than in a large city?

These examples are illustrative of the most frequently occurring categories of complaints of invasion of privacy by the press. They warrant further examination.

Criminal or other conduct on the public record

The first example is concerned with the viewpoint that once a convicted person has served their sentence, their debt to society has been paid and there should be no further publicity given to their conviction. But is this correct in itself? Are there offences that are of such a nature that a person committing them should never be free of the taint of the crime?

Community views on this issue are reflected in two developments. First, spent convictions legislation has been passed in a number of Australian jurisdictions. Under this legislation, a person’s record of conviction for certain offences is not available for public access after the lapse of a specified period without further convictions. A period of 10 years seems to be the norm for adult offenders. However, the notion that a person’s record of offences should be swept clean after a specified period applies only to offences leading to less significant penalties; for example, the Commonwealth and Queensland legislation applies where the conviction resulted in a prison term of less than 30 months, while in NSW and the ACT the scheme is more restrictive, applying where the term of imprisonment was less than six months. In NSW and the ACT, conviction for some offences, including sex offences, is excluded from the operation of the scheme altogether. It is thus not accepted that a person is always entitled to a clean sheet regardless of the nature of the offence committed and the service of a sentence.

Second, there is growing pressure in the community for publication of registers of child sex offenders — indeed, also of the names of persons who have not been convicted but who have been suspected of the commission of such offences. Rightly or wrongly, the view is held that such persons are likely to offend again. The argument is put that the right of children not to be exposed to danger of attack is far greater than any right to privacy that such persons might have. It is said that the protection of children outweighs any arguments claiming that the service of a sentence constitutes the discharge of the offender’s debt to society.

I suggest that to take a simple stance that there can be no revelation by the press of a person’s criminal convictions after service of the punishment imposed is not an acceptable approach. To do so would be to censor information that could be relevant to a number of issues in which the public has an interest. The public is entitled to know, for example, if a person standing for election has been convicted of a serious offence. Persons who propose to invest money in an organisation are entitled to be informed if the directors of the organisation have been convicted of fraud.

Likewise with other publicly available information. Members of the public entrust themselves and those for whom they are responsible to the care and skills of other persons. They need to be able to make an informed judgment about the wisdom of so acting. If the surgeon who is proposing to operate on me has been found to have acted negligently and that is on the public record, I should not be denied access to that fact. I might still choose to proceed but I should be able to make an informed choice. Should it be any different for a newspaper to publish that information?

If a government decision maker has a financial or other interest in the outcome of a decision that can be found in public records, even where the provision of the information was compulsory, should not that conflict be the subject of public disclosure?

In the example cited above, the revelation of the place of residence of the person after his release from prison was a significant breach of privacy and resulted in unpleasant intervention by persons whose children went to the school. However, the publication of the address was considered to be justified in view of its geographical location, taking into account the offence of which the person had been convicted. Whether or not one agrees with this view, it is significant in considering whether the newspaper had engaged in an improper invasion of privacy that it did not continue the breach by revealing the place to which the person next moved.

There is also a practical matter in relation to the question of revelation of past convictions. The likelihood of the press revealing old convictions is small in the case of people who do not move into the public eye. Whether someone has a criminal record will only be of interest if it is newsworthy. Old convictions will not be revealed gratuitously because they will not be of interest unless the person concerned is convicted again or they relate to a public figure (as to which see below). In these circumstances, to proscribe the revelation of the conviction may well be a denial of an important piece of information about which the public should be aware.

Reporting of court proceedings

An issue closely connected with the use of conviction information is the reporting of court proceedings. This is a problematic area. The principle that justice is to be carried out in the public view is a basic tenet of our society. The absence of secret trials is a proud boast of our democratic system. The reporting of trials is a concomitant of this. People cannot complain if court proceedings involving them are published, even though this may give them adverse publicity. However, the ability of journalists to give an accurate report of a trial is often questionable.

Newspaper reporters seldom have legal training. They usually do not appreciate, or at least make apparent, the fact that counsel for one party will be presenting a partial view of the facts. Perhaps most importantly, many trials run over several days, not necessarily consecutively. There may be long adjournments. If each day of a trial is not covered, a very biased presentation of the evidence can occur. It is even possible that the final outcome of the trial will be missed and all that will remain published is the prosecution assertions without a subsequent acquittal being reported. (It can of course work the other way and a conviction not be reported.)

The Press Council has urged newspapers to report the outcome of cases on which they have previously reported in the interests of fairness and balance, no matter what delays have occurred in the court process and no matter what the wishes of the parties to the case.^[6] If this is not done, it is essential that a paper respond promptly to a request from a party for publication of clarifying information.

While sloppy practices can result in concern to the persons affected, the greater public interest dictates that there can be no limitations imposed on public access to court documents and proceedings. The principle of open proceedings is too important to be curtailed. The alleged willingness of courts to make suppression orders in judicial proceedings involving the higher socio-economic classes of the community is indicative of the danger of even minor limitations being imposed on the ability of the press to report proceedings.

Public figures

The second example above is illustrative of a circumstance in which privacy is most frequently breached by the press — the public figure. Much has been written about this, particularly since the death of Princess Diana. But it has been ever thus. For as long as there has been dissemination of information there has been a desire to hear news of others, particularly of those in high places or those who present themselves to the public domain. Gossip is something on which society thrives and indeed needs if an open and free society is to be maintained.

The general rule adopted by the press is that if a person seeks publicity they cannot object if it is not always favourable. So if Naomi Campbell sells herself as a ‘celebrity’ she must expect to have some of her character traits exposed, particularly if she lies about them: see Naomi Campbell v MGN Ltd,^[7] where an action arising out of a newspaper article that revealed that Ms Campbell was a drug addict was dismissed because, for among other reasons, the article was intended to rebut her claims that she had not taken drugs. If Shane Warne presents himself as a role model and accepts payment for sponsorship of products as a result, why should his personal activities not be revealed?

Similarly, if a person publicly espouses a particular view, they cannot object if it is revealed that their own behaviour does not embody that view. If a person conducts himself or herself in a particular fashion, the implications of that for other activities in which the person engages is public fare. So if the directors of failed companies indulge in a lifestyle that is luxurious compared with that of those who have lost money as a result of the failure, the publication of that information seems reasonable, even though it may be an invasion of privacy.

However, the Press Council Privacy Standards recognise that a public figure does not forfeit all rights to privacy: ‘Intrusion into their right to privacy must be related to their public duties or activities.’ This direction is generally followed in Australia — in marked contrast to the position in the United Kingdom, where the sex lives of politicians and other ‘celebrities’ seems to dominate the pages of some papers.

But what of the partner or child of the public figure? Is it just part of life that those who are close to the famous must expect to be caught up in their aura? They often enjoy a benefit, financial or otherwise, from association with the public figure. Must they also forfeit a part of their privacy as a result?

Contrast two cases. Rodney Adler, on bail after being charged with serious offences and facing scrutiny through the HIH Royal Commission, complained to the Press Council about a photograph of himself and his son taken at an overseas airline first class counter as they were about to leave on holiday. The Council dismissed the complaint because it agreed with the newspaper that the fact that Mr Adler could take his family on an overseas holiday at the particular time was a matter of public interest and outweighed the invasion of the son’s privacy.^[8]

Compare the upholding of a complaint in relation to an article that mentioned the child of the mistress of a well known business man. The relationship between the parties had been the subject of considerable publicity. The original material was pure gossip and pandered to the interest of the community in people in high places. Its publication could not be defended as other than a titillation of the public’s interest in an unconventional marital relationship engaged in by persons who were much in the public eye. When the information was later repeated and included a reference to the child, the Council ruled that this was a gratuitous invasion of the privacy of the child.^[9]

More difficult are the husband and wife confrontation cases. The reaction of a partner to the revelation of information about a public figure is only justifiable if it is part of the story itself, as in the Rodney Adler case above. The reaction of a partner to public revelation of marital infidelity is very much a borderline case. But again it is not possible to adopt a blanket rule that such reaction is never significant. If one accepts that President Clinton’s dalliances were appropriate for public revelation and debate, was his wife’s reaction not also of relevance to the issue of his fitness to continue in office?

These cases can also raise the question of public/private space. The Council upheld a complaint relating to a photograph taken with a telescopic lens of an argument in the back garden of their house between a senator and his wife following revelation of travel rorts and infidelity by the senator.^[10] If this had occurred in the front of the house, available to public view, a different conclusion would probably have been reached. But one has to ask why the position should be different if the event is not a part of the story which is being published. A breach may be compounded by the invasive nature of the conduct used to secure the story. The action taken to get the story may itself constitute a breach of privacy. However, this should not allow attention to be diverted from the fundamental issue of whether the publication of the information relating to the person concerned can be justified.

People who become the news

The third example concerns the problem of the breach of the privacy of ordinary people who have become the story. It is probably the most common cause of complaint of invasion of privacy, although it is far from being the most common type of press activity that constitutes a breach. Most people in the public eye accept that they have forfeited an element of their persona by moving into the public arena; not so people who have fame or notoriety thrust upon them. And yet if the activities of such people were removed from the news, the populace would not be informed of what is occurring in their society.

The publication of the photograph of the bodies in the example above was defended on the basis that Tasmania, where the accident occurred, has a worse record of death by drowning arising from the use of small boats than the other Australian States and Territories. At the time of the accident it had no laws requiring the wearing of life jackets by users of such boats, a fact that the newspaper had been commenting on for some time. The Press Council accepted the paper’s claim that its publication was justifiable in the public interest in view of the need to warn the public of the dangers that the accident illustrated.

By way of contrast, on the same day the Council upheld a complaint against the publication of a photograph of the body of a murder victim half naked. It could see no public interest in this presentation and it constituted a violation of the woman’s privacy.^[11]

The intrusion by the press on people who have become the news, either by their own actions or as sufferers from the actions of others, presents particular privacy difficulties. Many people will want to share their position either from the excitement of it as a moment of glory or in a desire to share their grief. It should not be assumed that all people do not wish to talk about bad experiences (consider for example the mistaken view after World War II that returned soldiers would not want to share with others what they had gone through which, it is now seen, was a cause for considerable stress). The refusal by the Department of Immigration to allow access to Kosovo refugees because it would be an invasion of their privacy was just what the refugees did not want to have happen. They wished to tell their story to the world to attract support.^[12] Application of a strict privacy approach can be counterproductive.

On the other hand, the heartless ‘how do you feel?’ of the junior reporter sent on a death knock visit must be condemned. Again it is a question of judgment. People should not be harassed into talking to the press for the sake of a good story, but privacy constraints should not be erected in such a way that a barrier will stand between the public and the press preventing those who wish to speak gaining access to the means of doing so.

Particular care must be taken that governments cannot manipulate privacy protection to prevent the revelation of information that the people concerned wish to make public, as in the case of refugees in detention camps.

Identification of people

The fourth example set out above raises the issue whether different standards apply according to the likelihood of the person affected being identified. Can there be a breach of privacy if no one knows the person affected? In a small community the chance of identification is increased and the breach will be apparent. In a larger community, anonymity of numbers becomes a factor. The chance of being identified through a reference to ‘Ann of Parramatta’ is slight, but ‘Sue of Nightcliff’ is a very different matter — at least that was what the Council thought in finding the Darwin newspaper had breached the complainant’s privacy because she could be identified in the relatively small community in which she lived.

Sometimes the same issue arises in regard to publication of overseas material. The nightly parade on television of death in overseas countries evokes no concerns about invasion of privacy. How far can this be taken? The Council dismissed a complaint from a third party about a picture of a naked woman shown escaping from a fire because the event occurred in Sydney and the picture was published in Perth.^[13] It was thought that the chance of anyone being able to identify the woman was slight. Is this the correct approach? What if it could be shown that there was a person who identified the woman? The principle remains the same — it is just that it was wrong in fact.

The issue to which a publication of this kind gives rise is whether there is some sort of public interest in the protection of the privacy of others. If a person is not aware of the exposure of facts about them, can there be a breach of privacy? If the person about whom the facts are disclosed is not known in the community where the disclosure occurred, can there be a breach of privacy? If the answer to either of these questions is yes, the likelihood of breach of privacy by the press would be greatly expanded because it would extend the reach of protection to the invasion of privacy of overseas persons. At least in theory this could occur now with the Press Council because it is possible for third parties to raise breaches of the Council’s code. However, if breach of privacy was the only objection raised to an article by a person with no interest in the matter, it is probable that the Council would not pursue the complaint.

A further problem arises in relation to dead people. The case referred to above of the naked female murder victim was said to involve an invasion of the subject’s privacy. She would unfortunately not have been affected by the actions of the paper, so can it be said that her privacy was invaded? Is it rather a case of the family of the deceased being affronted by the picture and this being a breach of good taste?

The Press Council has dealt with a number of cases of publication of photographs of bodies. However, no consistent practice has emerged. It seems to have been assumed that some sort of right of privacy continues to exist in dead people. But this has not been applied consistently. Rather, the interests of the living have dictated the outcome. Generally the position has been that in a community where the dead person will be known, publication of pictures of the body will be condemned. If the person will simply be another member of the teeming multitude, the likelihood is that the publication will go uncriticised. This is hardly a satisfactory distinction if the feelings of the living are the determinant of whether there is an invasion of the privacy of the dead. Relatives and friends are likely to feel that there is an invasion of the dead person’s privacy no matter how large the community in which he or she lived. The test that seems to be applied is whether a significant proportion of the readership of the relevant publication will be offended by the publication. But this has not been stated as the basis for acting and reactions to the particular publication seem to have dictated the outcome.^[14]

Some conclusions from the cases

These various cases have been referred to in an endeavour to show that the position in relation to privacy invasions by the press is not necessarily clear cut. I am not suggesting that the press does not breach people’s privacy or that it should have a free rein to do so. What I do suggest is that it is important to balance a range of issues before advancing to a conclusion that an unacceptable breach has occurred. And this is not just on the basis that freedom of the press justifies the press in making an assessment whether to release information or not. (Although it must be said that the press in Australia is remarkably circumspect in the information that it does release and adheres to a much stricter self imposed code of silence, particularly in regard to public figures, than is the case in many overseas countries.)

A part of living in a society means that we must forfeit some of our privacy and we are not necessarily going to be able to determine what that portion is for ourselves. For that reason the intrusion by the press into individual’s lives has to be placed in perspective. There is a significant danger that the imposition of controls to deal with what is thought to be unacceptable conduct will result in the prevention of revelations that are necessary for the good of the community and the maintenance of the free and open society to which we are accustomed. Laws have perforce to proscribe conduct using general language. The danger is that the description of forbidden action in generic terms is likely to result in the loss of the nuances of conduct that can be seen in the cases and examples set out above.

The more that the press is controlled in what it can say, the more public decision makers will be able to act unchecked. Totalitarian countries do not need checks on the revelation of private information by the press because the press is already controlled. The constraint of content is already significant in Australia through the threat of invocation of defamation laws. The addition of strict privacy rules to the armory of those wishing to avoid accountability can only have one outcome.

There is also the need to maintain ordinary human intercourse. There is not one among us who has not shared in and passed on private information about an enemy, colleague or friend. This is termed gossip — not privacy invasion — so it is permissible. It drives social dealings. Much of the material that appears in the press is gossip. It provides interest and entertainment to many. If those persons who agree with the statement that the press is too invasive of privacy were also asked the question ‘Would you be willing to forgo information on film stars, sports men and women, royalty, pop singers and so on?’, the response would almost certainly be very different. Would newspapers sell if they contained nothing but earnest analysis of the policies of the government of the day without any discussion of the individuals involved? The magazine market would probably halve!

In this context it is worth noting that the Press Council receives 400 complaints per year on average and this figure has been maintained for many years. Claims of breach of privacy average 5 per cent of that total. In contrast, last year 24 per cent of complaints to the UK Press Complaints Commission were concerned with privacy. It should also be remembered that a complainant to the Australian Press Council does not have to be the party affected. Many complaints are made by third parties. The first two examples above were not made by the person affected. The NSW Privacy Commissioner also receives complaints about breach of privacy by the media. There are only ever one or two each year. If these complaint figures are any guide, breach of privacy by the press is not a problem of concern to many people in Australia. For this reason alone it is important that perspective not be lost in considering what steps, if any, should be taken in regard to press invasions of privacy.

In my view, it is losing perspective to look at ways of dealing with privacy invasion by the imposition of controls on content. Rather, the concentration should be on what can be done to check or sanction improper breaches of privacy.

Remedying invasion of privacy

Legal action

It had long been accepted that no legal action could be brought in Australia for damage suffered from a breach of privacy. Suggestions for legislative change had not been taken up. However, the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd^[15] indicated that the development of such an action at common law was not precluded. These statements were seized upon by Skoien J in the District Court of Queensland to rule that there can be a civil action for damages based on the actionable right of an individual person to privacy: Grosse v Purvis.^[16] His Honour considered that the essential elements of the tort are:

(a) a willed act by the defendant;

(b) which intrudes upon the privacy or seclusion of the plaintiff;

(c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities; and

(d) which causes the plaintiff detriment in the form of mental, psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which he or she is lawfully entitled to do.

Skoien J acknowledged that what he was doing was a bold step and his action has not passed without criticism.^[17] It will be interesting to see how this new foray by the courts develops — there is some suggestion in English cases that the common law there may be amenable to such an action.^[18] However, in the present context it is worth noting that the action is based on US precedent and there it has been said that the free speech guarantee in the Constitution has almost always resulted in the right of privacy being overridden.^[19] The same may happen in Australia, certainly where the implied right of political communication can be invoked.^[20]

Another constraint on the use of the courts in cases of invasion of privacy is that such an action will result further publication of the facts on which the action is based.

A final significant limitation on any breach of privacy action is the need to show damage arising from the alleged privacy breach. Mere annoyance or even distress without some resultant medical condition will not be sufficient to make a claim. There is also the significant issue of the cost of bringing an action. There is likely to be considerable difference in a victim’s medical response to being stalked by another (the circumstances of the Grosse case) and merely being annoyed by the press. However, this might not always be the case if there is a long campaign of staking out a person’s house and following them. The press will need to be aware that there may be an avenue opening to persons who are treated badly.

If, as seems likely, tort claims for breach of privacy will not loom large in the remedies available to persons who consider that they have been unfairly dealt with by the press, what else is available?

Press Council

The Press Council presently includes among its Statements of Principle under which complaints against the press will be considered:

3. Readers of publications are entitled to have news and comment presented to them honestly and fairly, and with respect for the privacy and sensibility of individuals. However, the right to privacy should not prevent publication of matters of public record or obvious or significant public interest.

As the examples cited above indicate, the primary avenue available to a member of the public to complain about an invasion of privacy is to the Council. The Council is an industry funded, self-regulatory body. Its membership comprises an independent chair, 10 industry representatives nominated by the sponsors of the Council, seven members chosen by the Council as representatives of the public, and three representatives of editors and journalists who are also chosen by the Council. The public members of the Council are selected after public advertisement with a view to achieving a geographical spread and a range of expertise, interest and background.

Of the 400 or so complaints that are received by the Council each year, about half are resolved by informal intervention by the Council secretariat. Around 20 per cent of complaints are dealt with formally by the Council. Of these, just under half are upheld. The Council’s sanction is to require its adjudication to be published by the newspaper or magazine concerned. This is always done.

The balance of numbers on the Council suggests a likely bias in favour of the press. In practice this does not happen. Industry nominees are as likely to support a complaint as public members.

The issue in the present context is whether there should be another body that determines issues of invasion of privacy. I suggest that there should not be.

Government review body

The only real alternative is a government appointed body which might or might not include representatives from the media. The danger of government oversight of the press has been clearly demonstrated by the actions of the Minister for Communications in his recent dealings with the ABC. Governments do not like an independent press. It is the first area over which control is taken by totalitarian governments. But it is the life blood of democracy as we know it. Without the right to publish freely without threat of government intervention to revoke licences or seek the imposition of penalties, the publication of the sort of material that I have referred to above, particularly in regard to public figures, would dry up. This is not the way to go.

Even if it were suggested that the resolution of privacy complaints should be undertaken by an independent person, such as the Privacy Commissioner, the likelihood is that persons making complaints would be worse off. The great advantage of the Press Council is that the industry co-operates with it. If it were required to account to another body, the press would cease to co-operate. This would result in long drawn out and expensive action on the part of the Commissioner in which the position of the complainant would take second consideration to a fight over press freedom. This too is not the way to go.

Changes to self-regulatory model

Can the self-regulatory model be improved? I think that there are some matters to which attention could be paid. The balance of representation on the Council should be changed to provide at least equal numbers of public representatives and preferably a majority. I doubt that this would make any difference to the outcomes of complaints, but it would avoid the appearance of bias.

An effort could be made to provide a hotline for communication by people who think that their privacy has been invaded to enable early intervention by the Council. Whether this would be used is another question. In 2000 the Council engaged in an extensive advertising campaign, strongly supported by the press, to bring its existence to the attention of readers. The emphasis in the advertisements was on making calls to the Council if there were concerns about press action. It resulted in no discernible increase in complaints. The problem is much the same as with most complaint points such as ombudsmen, tribunals, commissioners and so on — members of the public are not aware of their existence until they have a problem and then it may be too late to do other than try to remedy action that has occurred.

The UK Press Complaints Commission (PCC) has recently been the subject of a report by a parliamentary committee.^[21] Many of the Committee’s recommendations reflect present Australian Press Council practice but some recommendations are worth comment.

It is suggested that an independent person should be appointed to deal with procedural appeals. The role of this person is not spelled out in the report but presumably he or she would perform a function that is carried out in Australia by the Chairman of the Press Council, namely to look at representations made by either the complainant or the paper concerned that a Council adjudication was affected by procedural errors. If it is thought that there is any merit in the representations, the matter is referred back to the Council for reconsideration. This is not really an appeal procedure as the merits of the findings of the Council are not reconsidered. It does not seem that a great deal is gained by the appointment of an outsider except from the point of view of appearance. As, at present, the Chairman of the Council refuses few applications for reconsideration, it is doubtful if it is worth pursuing this issue in Australia.

Another suggestion goes to the issue whether a press complaints body should be proactive. The Council is primarily a reactive body. It does not take up matters with publications where there may have been a breach of its Principles unless it receives a complaint. It has been a point of debate from time to time, both in and outside the Council, whether this is the correct approach. The UK Parliamentary Committee recommended that a pre-publication team be established by the PCC which would handle issues that arise in advance of publication of a story. This would include claims of harassment and invasion of privacy. If thought to be significant, these would be taken up with an editor before publication. It was also suggested that the team should act when an event such as a disaster has occurred that is likely to lead to concerns about press reporting of the event and people’s reaction to it. Actions might include reminders to the press of its privacy obligations and the provision of advice to organisations that were likely to be dealing with affected persons about the role of the PCC.

The first of these suggestions has been considered above in relation to the establishment of a hotline. The second is something that the Council should consider as it is in relation to such events that the press in Australia has attracted criticism and the Council has shown little initiative.

A further issue relates to the remedy that the Council can provide a complainant where the Council finds that a breach of privacy has occurred. At present the only sanction that is open to the Council is the requirement that its adjudication be published. The Council is aware that, unless carefully drafted, the adjudication can repeat the breach. Privacy invasions present particular difficulties in this respect as any action involving the press is likely to lead to a further breach of privacy. An agreement by the paper concerned to publish an apology can cause the same problems as it opens up the question for readers of to what the apology relates.

To overcome these difficulties, the UK committee recommended that the industry agree to a fixed scale of compensatory awards to be made in serious cases (which it acknowledged would be few and far between). It said that if the amounts ‘were fixed in advance, a matter of consensus and relatively modest, we can see no reason for lawyers to be involved. Consideration could be given to making the award to a charity of the complainant’s choice rather than directly.’ This is a radical proposal in the history of press complaints bodies because they have always resisted any suggestion that awards of compensation were appropriate. Nonetheless it is worthy of consideration as a way of dealing with an intractable problem.

Another interesting recommendation of the committee related to the annotation of records. The Committee said:

We believe that annotating press archives as to their accuracy and sensitivity should be automatic in all serious cases, and certainly all upheld adjudications, and furthermore that the publication should be responsible for removing the relevant article from publicly available databases.

This obligation is recognised in the Press Council’s Privacy Standards No 6.

Conclusion

The outline of this session asks the question whether inherent privacy protection afforded by difficulty and cost has been lost with the availability of technologically improved equipment and electronic data processing. My response to this would be no. There is no indication in Australia that there has been an increase in the invasion of privacy by the press. The balance that I have suggested as being necessary when privacy is invaded has not been affected by technology. In some ways it has been improved. A reporter can, for example, more readily find out the current position in regard to court proceedings and know when a case is continuing after adjournment. The facts relating to a public figure’s activities can be more readily identified and, if appropriate, brought to the attention of the public. It may be possible to circumvent government constraints on the availability of information considered embarrassing.

The public’s right to know should not be limited without good reason. Privacy is one of the factors that must be weighed in the balance when considering what constraints should be put on the distribution of information but it cannot be the determining issue. There must be good reason for revealing information about a person and that revelation must be able to be justified. An inappropriate or inaccurate presentation of information should be corrected promptly.

The avenue for review of complaints of privacy breaches by the press should remain with the Press Council. Self-regulation, not government influenced control, is the appropriate approach. However, both the press and the Press Council must be prepared to keep their practices under review and the recommendations of the UK Parliamentary Committee should be examined carefully. l

Dennis Pearce AO is Emeritus Professor at the Australian National University, Canberra. He is a former chair of the Australian Press Council and a former Commonwealth Ombudsman.

Endnotes

[1]. For a comprehensive and valuable discussion of the full range of issues, including the activities of other forms of media, see Chadwick P and Mullaly J Privacy and the Media Communications Law Centre Research Paper No 4 of 1997.

[2]. APC Adjudication No 1054.

[3]. APC Adjudication No 957.

[4]. APC Adjudication No 1071.

[5]. APC Adjudication No 1179.

[6]. APC Adjudication No 1044.

[7]. [2002] EWCA Civ 1373; [2003] 1 All ER 224.

[8]. APC Adjudication No 1189.

[9]. APC Adjudication No 1144.

[10]. APC Adjudication No 916.

[11]. APC Adjudication No 1072.

[12]. See Australian Press Council News Vol 11 No 3 (August 1999) p 8.

[13]. APC Adjudication No 118.

[14]. For a full discussion of the Council’s approach to distasteful images see Australian Press Council News vol 14 no 4 (November 2002) p 1.

[15]. (2002) 185 ALR 1.

[16]. [2003] QDC 151 at para [442].

[17]. See for example The Australian ‘Media’ 10 July 2003 p 4.

[18]. Weatherall K ‘A Very dynamic issue: international developments in privacy in the last 12 months’ [2003] AIAdminLawF 17; (2003) 38 AIAL Forum 81 at 83.

[19]. ABC v Lenah Game Meats Pty Ltd 185 ALR at 34.

[20]. Stewart D ‘Protecting privacy, property and possums: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd’ (2002) 30 Fed L Rev 177 at 189.

[21]. ‘Privacy and Media Intrusion’ House of Commons Culture Media and Sport Committee Fifth Report of Session 2002–03 HC 458–1, 16 June 2003.