A big attack on free speech and freedom of the press in the name of "privacy"

It's a great pity that Australia has no equivalent of America's First Amendment to block this sort of thing. People harmed by unfair or incorrect publicity should obviously have some recourse but one would think that existing libel and defamation laws provided that. Will it now be impossible for the media to expose crooks in case the crook's "privacy" might be violated??

The NSW Law Reform Commission reckons the trouble with freedom of speech is that it comes up trumps too often. But the commissioners yesterday released plans to do something about it: give those whose privacy has been violated by the press wider and less-constrained rights than any in the world to sue for damages.


I need to confess I was one of a bunch of advisers to the commissioners as they pursued their terms of reference, "To inquire into and report on whether existing legislation in NSW provides an effective framework for the protection of the privacy of an individual." In particular they were asked to consider "the desirability of introducing a statutory tort of privacy in NSW". Their answer was a mighty yes, and nothing I said otherwise had any noticeable effect.

In the face of outrageous violations of privacy by the media, journalists are hard put to argue that those whose lives have been trashed can't turn around and sue. The hunt for some basis in law to do this has been on for some time in the courts of the English-speaking world. A very bad result for the press was the Naomi Campbell case in 2004.

The Daily Mirror in London illustrated a story about the grumpy mannequin's drug addiction with a photograph of her leaving a meeting of Narcotics Anonymous in Chelsea. Though the picture was taken of a public figure in a public place, the House of Lords ordered the paper to pay Campbell damages of £3500 and costs of £350,000, essentially for violating her privacy.

Impossible to define, ceaselessly abused by governments and thrown away by kids on Facebook, privacy is being offered fresh protection in the courts. The drift appears irresistible. All that's really been at issue round the world in the past decade or so is how to ground this new action in law while protecting free speech.

The great protection offered in countries going down this track are solid guarantees of free speech in bills and charters of rights. We have nothing like that in NSW, which frankly pleases the NSW commissioners: a former judge, James Wood, a current judge, Kevin O'Connor, and Professor Michael Tilbury. It lets them lower the bar. They write: "We can think of no reason why in Australian law freedom of expression or any other interest should be privileged above privacy."

Courts elsewhere have developed a second great protection: only those "highly offended" can sue. That formula was developed in the US and refined in Britain, New Zealand and even here in the musings of the former chief justice Murray Gleeson, who thought being "highly offended" set "a useful practical test of what is private".

But that's too tough for the NSW commissioners. They want mere offence to be enough. What's more, their report Invasion of Privacy makes it clear this wider test would include people who suffer no more than "annoyance and anxiety" at the hands of the media.

I'm not here to defend The Sunday Telegraph for publishing photographs thought to reveal Pauline Hanson in her underwear. Nor am I going in to bat for those vaudeville characters Kyle and Jackie O interrogating children on air about their sex lives. Awful stuff. But a responsible, free media annoys people all the time. Happens day in, day out. We publish things about people they'd prefer didn't see the light of day and they get annoyed. But the commissioners are suggesting the courts - after balancing all the circumstances and rejecting the merely trivial - should allow people who are annoyed with the press to sue us even when we get it right. It's quite a prospect.

They also want to do away with two ground rules: what happens in public can be photographed and what's already on the public record can be republished. Neither are absolute rules any more, but the exceptions have, hitherto, been very carefully defined. No longer. Pity the poor investigative journalist - or biographer - working under threat of a Hong Kong principle approved by the commissioners, "That the law should take account of the 'practical obscurity' of personal information that is held in public registries or that has already been disclosed." What is buried must remain buried.

The commissioners are polite, intelligent men who have lived their lives around the courts. They're happy to leave to judges the case-by-case task of working out what is "private" and who has "a reasonable expectation of privacy" and whether claims for privacy are outweighed by "competing public interest".

None of those issues are now clear. Defining them would take many years. Meanwhile, newspapers would be published and news bulletins broadcast in a strange new world where the courts could punish the media for annoying people by honestly reporting accurate material contained in public documents.

Footnotes to their report reveal opposition to the proposals from the Law Council of Australia, the media Right to Know Coalition, the Law Society of NSW and the Press Council. And, for what it's worth: me. We were all ignored.

SOURCE

Posted by John Ray. For a daily critique of Leftist activities, see DISSECTING LEFTISM. To keep up with attacks on free speech see TONGUE-TIED. Also, don't forget your daily roundup of pro-environment but anti-Greenie news and commentary at GREENIE WATCH . Email me (John Ray) here

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