Privacy in the information age free for all

Paul Keating

This article was published in Living Ethics: issue 81 spring 2010

Former Prime Minister Paul Keating takes issue with those who assert that privacy in modern times is dead. Mr Keating supports Australian Law Reform Commission recommendations that the law should provide recourse in the event of an unwarranted serious breach of an individual’s privacy. Here is an extract from a speech he delivered to the Centre for Advanced Journalism at the University of Melbourne on 4 August 2010.

Just about any day in the tabloids and any night on A Current Affair or Today Tonight you will see examples, including foot in the door interviews, claimed to be necessary and justified by the media’s right to know, and to publish just about anything they like.

The issue of the media and privacy is topical owing to proposals in a 2008 report by the Australian Law Reform Commission (ALRC) on Australia’s privacy laws.

media organisations should not be left entirely
to themselves in setting standards

The report, the result of two years research, consultation and analysis, runs to 2700 pages in three volumes. It put forward 295 recommendations for change with the general aim of modernising, simplifying, and streamlining laws that are generally seen to be dated, complex, confusing, fragmented and full of gaps and inconsistencies.

Four recommendations are of direct relevance to the media. None have yet received a response from the Government. They propose changes to, but continuation of, the largely self-regulatory arrangements that are a condition for the exemption media organisations enjoy from privacy law … and legislation to establish a general statutory cause of action for breach of privacy subject to a number of qualifiers to ensure the protection of other public interests.

The framework of media self regulation

Managing privacy is part of a broader framework concerning ethics and values in journalism; an essential framework given the media’s exercise of significant public power, privilege and the potential to cause harm. This framework is, in fact, key to the conditional exemption media organisations enjoy from the Privacy Act.

The case for reform

The ALRC recommended two new limitations to the exemption for acts and practices in the course of journalism: that a definition of ‘journalism’ should be introduced for the purposes of the Privacy Act and a small change made to the definition of ‘media organisation’.

The more significant recommendation was that media organisations should not be left entirely to themselves in setting standards, with the introduction of measures that would continue the exemption only where a media organisation was committed to adequate privacy standards developed in conjunction with the Privacy Commission and the Australian Communication and Media Authority. In the light of the obvious shortcomings in the current system, this seems highly sensible to me.

Scope for change

Industry leaders and the profession should acknowledge that improvements are needed. Instead of standing aggressively behind the status quo, dressed in the cloak of the Fourth Estate, they need to talk more about responsibility, more about the importance of ethics, more about improvement in the standards of journalism in all respects. We might not be able to do much about some online players, but those in the mainstream need to provide real leadership in managing themselves and any self regulatory system.

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 proposed by the ALRC for continuation of the media exemption from the Privacy Act.

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, the media would benefit from unified arrangements, consistent principles and uniform enforcement mechanisms applying to all sides: newspaper companies, journalists, broadcasting companies and internet service providers

with regard to ethics and standards, the media would benefit from unified arrangements, consistent principles and uniform enforcement mechanisms

More attention to guidance, education and training will continue to be an issue, especially while some senior journalists and those to whom they report, claim that the public interest is anything the public might find interesting. The public interest means publication or non-publication guided by what is in the interest of the public as a whole, not what readers or an audience might find interesting or titillating. It’s not always straightforward or easy to apply. But it’s claimed to be at the centre of media’s claimed right to publish generally and said to be a central determinant in deciding that publication of sensitive material is justified.

Rather than abandoning the public interest, the media needs to put more time and effort into fostering a better practical understanding of the term, including the notion of a right to privacy within its own ranks.