In the digital age, privacy isn't what it used to be and the Australian Law Reform Commission says there is a "palpable terror" among Australians that their private lives might end up on public display. In response, the Commission has proposed a new law that would allow people to sue for damages for a serious invasion of privacy.
The Commission says that the law is not aimed at the media and that the media have nothing to fear. But media companies have been lining up to criticise - saying that the new laws would be irrelevant to most and simply provide another weapon for the rich and powerful to deploy against investigative journalists.
Is the media defending the right to know or just the right to gossip? I think that everyone has a bit of an obsession with outing celebrities. Everyone loves a bit of, a bit of titillation and that's what we've got here. But it might soon be harder for the media to serve them up, if they involve invasions of privacy like this An online porn scandal has also engulfed the pair after an ex boyfriend posted some saucy nude photos of Jess on the internet That really is the kind of egregious conduct that we would like to see caught.
This week, we're an Olympics-free zone. Instead, a special program. We're going to explore a proposal that's excited some furious comment in the press in the past couple of weeks. This must rank as one of the most hare-brained ideas to emerge from a proud institution. Whether they're celebrities, or just ordinary folk, people are finding that privacy ain't what it used to be. When my predecessor Monica Attard dealt with that sorry episode last year, Tele Editor David Penberthy was utterly unapologetic.
It is currently the second highest read story of the year so far. The readers clearly loved it so you'd better chastise them too The person who took that photo under a lavatory door could face 2 years jail. But it's highly unlikely that the newspaper which publishes it, breaches the same law. And yet the Australian Law Reform Commission has found that ordinary Australians are very concerned that what happened to Candice and Sonny Bill could also happen to them.
I mean, we found when we went around the country there was, I think it's not unfair to say, palpable terror that's emerged from people who are in change rooms, at the beach or the swimming pool and they think someone will take a photo surreptitiously with a tiny digital camera or a mobile phone and then suddenly it will appear on a website. So when, last week, the Law Reform Commission brought out its massive three volume report on privacy law reform, 'For Your Information', it had a remedy to propose - in some people's eyes, a sledgehammer.
And finally for the most outrageous cases - and only for the most outrageous cases - introducing a statutory cause of action for serious invasions of privacy. But only if the complainant had: A reasonable expectation of privacy Highly offensive to a reasonable person The Commission's President, Professor David Weisbrot, reckons the mainstream media haven't much to worry about.
Of course it does cover egregious practices by the mainstream media and those occur sometimes and they shouldn't, but they do. But it's not primarily intended at that - the sort of cases that we're talking about are really where individuals, whether they have celebrity or not, are affected by a quite outrageous breach of their privacy.
It is the, you know, the nude photos that are sent out over the internet or those kinds of things. It suggests a list of intrusions that a court might regard as serious, including: Well, if you read the defamation laws you think that's fantastic too.
All laws read really well. But in Australian newsrooms, there's cynicism. The defamation laws are designed to protect people from having their reputations destroyed. But few ordinary folk can afford to sue.
Fairfax Media's Sam North fears that a law protecting privacy will be just another weapon that the rich and powerful can deploy against investigative journalists. I mean, back in the eighties we had a lot of stuff written about Laurie Connell and Christopher Skase and we got I think Laurie Connell gave us 52, sent us 52 defamation writs, right. Not one of them got up.
Christopher Skase sent us writs. And they were just used to stop us, to stop us from printing the information about guys who were clearly shonks. Rivkin's Swiss bank scandal.
Rivkin also told the Zurich District Attorney that he had traded Australian shares through Swiss accounts on behalf of Richardson and Kennedy, according to information sighted by The Australian Financial Review.
Now that interview was a compulsory interview done in private and had to remain secret under Swiss law. Now that was leaked to a journalist in Switzerland, who gave it to us. This is what will happen when this law comes in, if this law comes in. It will be used by the rich and powerful, the people with the money and the means to try and stop journalists, prevent journalists from writing stuff about them. Last week the coalition declared: The law would be irrelevant to innocent citizens in whom the media has no interest And I think we've crafted it in such a way as not to do that.
Ah, but if you looked at the media there was only one interest. There was simply the interest in publish, publish, publish, the right, so-called right to know - mostly what they're talking about, even in their own stories, is celebrity tittle-tattle. It's not political intrigue, it's not stories about misuse of public funds, it's celebrity tittle-tattle.
It's perving on the famous that sells celebrity magazines. But Richard Walsh, who used to run a swag of them, reckons celebrities don't have much of a right to privacy anyway. I think that you you're allowed to be a private citizen but once you choose to be a public citizen you have foregone some rights The idea is that this law would only apply to invasions of privacy which are, quote, highly offensive.
For example the telephoto lens shot taken over the wall of a celebrity that's naked beside a pool, not a celebrity walking down a street. Isn't that fair enough? Yeah, I'm not for open slather Well, for example, Candice Falzon and, and Sonny Bill Williams were photographed in a toilet cubicle in a pub on a mobile phone engaging in some sort of sexual activity and those pictures found their way on to the websites of major newspapers.
These pair of people aren't people who actually again who value their privacy greatly I mean ah she did a whole Australian Story later on ah if she was a very private person I'm not sure she would have done that Candice Falzon doesn't see it that way You know without even saying it the thought of the pain that I went through, I wouldn't wish that upon anybody, even, even my worst enemies, I would not wish that upon anybody.
So are you saying that sort of thing is legitimate, that it's OK? No but I'm not sure I'm too sympathetic with them no I mean I do agree that and I'm saying there are instances which are which clearly go over the odds but What effect would a law like this have on the kind of magazines that you used to run that depend on celebrity gossip?
I think it would shut most of them down. I mean it would certainly shut them down, strangle them to death, not garrote them, because it would simply deny them interesting pictures. I mean in the end they'd be, they'd be running pictures of celebrities the celebrities want to hand out. Which aren't as interesting and Isn't this basically just the media defending its patch, defending its right to make money out of gossip?
That's true, but when you're being self-serving it doesn't I mean absolutely mean you're wrong, I mean of course you're absolutely right they are serving their own interests, but they might be right as well, it does happen. Whether that weapon is used successfully to stifle the celebrity gossip that a vast public laps up, or serious investigative journalism, or both, will depend on how judges interpret the law.
But the fact is, judges and journalists seldom see eye to eye - and free speech has no special legal status in Australia. Every other country that we can find in the Western democracies, who have a tort of privacy, every other one has a freedom of expression enshrined either through their constitution, or through statute.
In your experience how much weight do judges in this country give to freedom of expression to the media's right to free speech? They have an antipathy towards the media and freedom of expression and freedom of speech doesn't rate very highly.
So if it was up to individual judges to weigh the right of privacy on the one hand and the right of media to free speech on the other, how do you think you'd go?
I think we would go badly. At the launch of the Law Reform Commission's Report, Senator John Faulkner, the minister responsible, made it clear that the government won't even start to tackle this issue for eighteen months. You can find a lot more information - and watch extended interviews - on our website.
Check it out, and let us know what you think. Visit the Media Watch video page to watch extended versions of the interviews featured in this episode. Meanwhile, if your privacy's been invaded by the media, there's always Media Watch. We can't dish out fines or damages, but we're quick, and we're cheap, and we can be very satisfying. We'll be back next week with our own medal tally from Beijing.
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