13 March 2009
Whether or not there should be a right to privacy looms as one of the key legal issues that legislatures or the courts need to determine. Mark Latham recently weighed into the debate, publicly calling for governments to take action to protect citizens from invasions of privacy.
Ironically, the issue has gained momentum in recent years because of the success of (amongst others) the media in reshaping defamation laws in Australia. Most importantly, public interest is no longer part of the defence of truth in a defamation claim. One can now defend a defamation action by showing that the published material was "substantially true". No longer is it necessary to show that the material is also a matter of public interest. The requirement of an element of public interest provided a constraint on what the media could report. As the media now only needs to establish that what they have published is substantially true, it is an implicit invitation to report on matters that are private.
Courts have to date proven an imperfect vehicle for determining whether a right to privacy exists (and, if so, what it should look like).
The facts that are before a court in any particular matter invariably permit the court to either avoid the question of whether a right to privacy exists or to fashion a result which is not of general application. Also by their very nature common law developments tend to be incremental. For these reasons resolution of the issue through the courts is less than perfect.
However, governments may have concerns about wading in for fear of upsetting the vested interests of the media. Hence calls by law reformers for the introduction of a statutory right of privacy have so far fallen on deaf ears.
The forces against any such change continue to be marshalled. One sees more items in the media in defence of "the public's right to know" than items expressing concern about intrusions into the private lives of individuals.
Invoking slogans such as the "public's right to know" or the protection of "freedom of speech" tends to obscure the real debate rather than advance it.
What precisely is it that the public has a right to know? Surely there are limits? Proposals by law reformers for the introduction of a statutory right of privacy would obviously not shut out the media altogether. The level of protection will vary depending on whether you are a public or private figure and the extent of the intrusion.
It is also alarmist to suggest that the introduction of a right of privacy would prevent reporting on scoundrels, shonky business people or those whose public personae is at odds with the reality of their private lives. It would not.
Inevitably were a right of privacy introduced it would lead to legal cases about the extent of such right. Serious journalism has nothing to fear from such cases. Gossip, voyeurism and other light entertainment would likely fair less well.
Suggestions that privacy should not be protected because we now live in the cyber age where some people have put their lives up for view on the internet also miss the point. We can see an argument that if person 'X' voluntarily exposes part of their life (or their body) on the internet then person 'X' may well forego a right to privacy, at least in regard to certain aspects of their life. However, why should the conduct of person 'X' have any bearing on whether person 'Y' (who has not acted in such a manner) has a right to privacy?
The greatest degree of certainty on this issue would arise from the intervention of government. What might provoke governments into action would be an egregious overstepping of the mark by the media in reporting on a matter which, whilst substantially true, is of an inherently private and personal nature. Pray it isn't you or one of your friends or family members who suffers such intrusion. But when it occurs, we will then likely see limits placed on the "public's right to know".
