‘Public figures, privacy and the media’: Analysis of the law

The term “media” refers to the different methods and means of communication that exist to pass on information on a massive scale. The importance of the media within communities should not be undervalued, as it exists as a way to keep the individual members of that community on the same page regarding notices and public events of small and great importance. In times of disaster, media coverage is necessary to facilitate the dissemination of advisory information and to cover public addresses by local, national and international leaders. Yet neither the federal nor state constitutions of Australia guarantee free speech or freedom of the press (Australian Press Council, 2006). What does exist is a document based on the Universal Declaration of Human Rights (Article 19) called Charter for a Free Press in Australia (2006). The mission of this charter can be expressed in the following statement: “The Charter recognises […] the right to the free flow of information to enable news and opinion of public interest to be freely available to the citizens of Australia” (Australian Press Council, 2006).

In Australia, there exists no “general tort of privacy,” though it has recently been ruled by the Queensland District Court that individuals are allowed to sue for privacy invasion (Australian Press Council, 2006). It has been reported by the Australian Communications and Media Authority that the media recognize the need to strike a balance between respecting the privacy of the individual and performing their duty as public informants (ACMA, 2005). The ACMA recognises the existence of tension between the two extremes, and this tension is very often evident in media coverage of the lives of public figures (Eggins & Lederma 1997). These public figures span a wide range, which is inclusive of statesmen, celebrities, and business persons. The fame associated with these persons also exists on different levels, ranging from local to national, and even international. Certain aspects of the law deal specifically with privacy, such as the breach of confidence action and the provisions of the Privacy Act, 1988 (Steketee, M. 2001; Dimitriadis & Carlson, 2003). Other areas of the law deal with defamation, and these areas also apply to the media as they become the means for the publication of defamatory statements.

The Commonwealth's legislative controls on media ownership can be divided into two broad categories: specific and generic controls. Specific controls are related to broadcasting and contained within the Broadcasting Services Act 1992. These derive from the Commonwealth's power to make laws with respect to electronic communications under section 51(v) of the Constitution. Generic controls are related to commercial activity and contained within the Trade Practices Act 1974 and the Foreign Acquisitions and Takeovers Act 1975. These derive from the Commonwealth's powers over trade and corporations under sections 51(i) and 51(xx) of the Constitution. Thus while the Commonwealth is able to impose prescriptive conditions on broadcasting licensees, its legislative reach over print media ownership is largely limited to general competition law and foreign acquisitions (Federal Court of Australia, 2005).

It is often perceived that the media has an undue influence over the minds of the people on topics such as politics, ecology and even consumerism (Toohey, P. 2001). The media is also able to influence the way people view public figures (McCombs 1993)—indeed, some argue that it focuses too much on these persons—and this often has a significant impact on their quality of life (Ward, I. 1995; McNair, B. 1999). Other theories exist that describe the media as guardians of public ideology. Yet, though such theories are informed by Marxist ideologies, the influence of the media has hardly been denied even in non-socialist societies. (Hall 1977; Casimir, J. 1995).

However the nature of the media may be defined in different circles, the influence that such media as television, radio, newspapers and the internet have on the beliefs and behaviours of the public can hardly be denied. This influence has been exploited commercially to publicise brands for the purpose of gaining or increasing public loyalties. It has also been used to broadcast the ideas of politicians. Just as it is possible to publicise flattering information about a person or company, it is also possible to publicise regarding these entities defamatory statements or information that constitutes a breach of confidence. Defamation is defined as the tort of causing the reputation of a person or entity to decrease in public estimation through the publication of derogatory statements, pictures, or other forms of communicative data (Beyer, A. 2004). Breach of confidence refers to improper use of information that is considered private. Historically this breach-of-confidence action has been based on the disclosure of information about a person or entity when such information has been obtained in confidence. The circumstances under which the disclosure is made is considered confidential under conditions that import “an obligation of confidence” even when no contract is in existence (McDermott, 2004).

Breach of confidence and public figures

Australian law distinguishes between private and public conduct, and these delineations form the basis on which breach of confidence suits can be filed. Private conduct refers to behaviours and conversations that occur during a time or at a place where the parties involved have a reasonable expectation that their words and actions would be viewed or noted only by each other (ACMA, 2005). Though behaviours that occur in areas where unrestricted access is granted to the public are usually considered public conduct, such circumstances exist in which things done in those areas might be considered private. These circumstances often involve the handling of very personal and/or sensitive matters. It is necessary to note that private material is available for use by the media once consent has been granted by the party involved, and that the consent can come in the form of express or implied permission (ACMA, 2005).

Public figures are to be treated according to the rules of private and public conduct, and though these persons are generally more apt to be scrutinised by the media by virtue of their position, they maintain their rights to privacy as citizens of the state. In fact, the Australian Press Council reports that “Neither in the common law nor in any of the codes were politicians or other public officials required to sustain a greater burden of proof concerning criticisms of their public functions than were private individuals” (2006). Conditions do exist under which media coverage of private material concerning an individual might reasonably occur, and would therefore not constitute a breach of confidence:

“if the person has actively drawn media attention to material that would usually be considered private, and can thus be held to have consented to its broadcast

“if the private material raises questions about the person’s fitness for office or capacity to carry out his or her public duties or activities, and is accordingly warranted in the public interest” (ACMA, 2005, p. 3)

The designation of a matter as being of public interest has more stringent boundaries than its merely being interesting to the public. Though the precise definition is complex, these matters generally must have the potential to impact large portions of society. However, the media possesses certain exemptions in the Privacy Act 1988.[1] This allows them to perform in ways that are generally forbidden by the Act, as long as they publicly subscribe to a privacy code (Australian Press Council, 2006).

The media exemption to the Privacy Act exists as a means of maintaining Australian commitment to the free transfer of information to the public and of balancing that goal with the important human right to privacy. The private sector media (or any organised group that exists in order to broadcast news) is therefore not held to the provisions of the National Privacy Principles. The exemption does not include specific guidelines regarding the extent or quality of the privacy standard to which these organisations must commit in order to be granted the exemption. It does specify, however, that the provisions of the act do apply to the media whenever its actions are non-journalistic in nature (Australian Broadcasting Authority, 2004). This exemption can be found in amended version of the Privacy Act 1988 subclause 7B(4) (Office of Legislative, 2006, p. 35).

Recent cases have given some demonstration of the extent to which breach of confidence might be appealed to within Australian courts. It has been only recently that encroachments on privacy have been recognised as a general violation or tort in this country (Privacy International, 2004). However, the few cases that have been publicised demonstrate the willingness of the courts to uphold breach-of-confidence legislation for the purpose of protecting individuals—more so than corporations or other types of organisations (Dimitriadis & Carlson, 2003; Privacy International 2004).

Lenah v Australian Broadcasting Corporation (which involved the accusation of a breach of corporate privacy) produced a ruling unfavourable to the plaintiff, but indicated that “a tort might be found if the right case came forward involving an individual” (Privacy International, 2004). This was made concrete in the subsequent award of AUD 178,000 to the plaintiff in the Grosse v Purvis breach of confidence case (2004). ELABORATE

Defamation and public figures

It is often the case in matters of defamation that individuals who are public figures tend to take legal action to a greater extent than those whose lives are not as public. One of the reasons cited is that litigation is often too expensive for the average man (Australian Press Council, 2006). Another viable reason is that the publicity of the lives of these figures comes about because of their connections to a large portion of the community. A politician, for instance, makes decisions concerning policies that will affect the public at large. A business person offers services to the public and is often in a position to affect the activities of the public—if only through affecting the market supply of goods to which people have access (McQuail, D. 1994). Public defamation of the character of such an individual can conversely have a large impact on that individual’s life. A politician might be in danger of losing his office (in essence, his job and livelihood) while a business owner could lose customers—which could also lead to a loss of livelihood. Such occurrences leading to these consequences can and do happen most readily through the media.

As it regards the life of political personalities at the federal and state levels, defamation has been argued within and outside of the constitution (Walker, S. 1998). Notable cases such as Theophanous v Herald & Weekly Times Ltd, Stephens v West Australian Newspapers Ltd, and Lange v. Australian Broadcasting Company have demonstrated how the Australian constitution has been applied to defamation cases. Earlier free speech cases has established a certain level of invalidity within the federal legislation, as the rulings declared that some of its provisions encroached upon certain liberties that ought to exist for political communication. This limitation of federal laws was, by the Theophanous and Stephens decisions, extended to statute and common law. In fact, “in Theophanous the High Court held that defamation law […] was subject to, and could be shaped by, the implied constitutional freedom of political communication” (Walker, S. 1998).

Though the Theophanous and Stephens rulings declared the common law “balanced too far against freedom of communication” (Walker, S. 1998), the freedoms that have been granted since this ruling offer no protection to those who use the media to publish knowingly untrue or irresponsible statements, and neither was protection granted to those broadcast materials with no apparent regard for its accuracy (Walker, S. 1998; Flew, T. 2001). However, the Lange ruling constituted a review of these previous rulings under the Theophanous and Stephens cases. The fact that narrow majorities (4:3) led to the passing of these rulings was further complicated by the retirement of two judges (half of the majority). The Lange decision ruled against the treatment of a former prime minister by the Australian Broadcasting Corporation. Thus, though the judgements of the Theophanous and Stephens cases were (in effect) imitated, the Lange case was deliberated on principle rather than on the precedent of Theophanous and Stephens. The decision was that the Australian Constitution does in fact “necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors” (1997 145 ALR 96 at 103, qtd in Walker, S. 1998).

The guidelines issued by the Australian Communications & Media Authority about "the privacy provisions of the broadcaster codes of practice" are thus of interest but arguably do not succeed in shifting the balance where media responsibility to the public meets their responsibility to respect the privacy of public figures. It has already been mentioned that the only clear exception to this lies in the event that there exists a matter of public interest that necessitates the dissemination of that information. Yet, the use of the term “only” is misleading as it can be extremely difficult to determine precisely what should be considered a matter of public interest. A key issue even in defamation cases is the distinction that can be made between private and public behaviour and the use of personal information that is already available (or common knowledge) to the public (ACMA, 2005).

The advent of the World Wide Web as an international medium has created a situation in which more persons have easier access to very powerful means of communication (Collins & Murroni, 1996). Publication on the internet can now be done for a fraction of the cost of print, and this privilege can be (and indeed has been) taken advantage of by many, including the individual members of the public. Yet this medium of publication possesses its own legal peculiarities, as can be identified in the 2004 case of Joseph Gutnick v. Dow Jones (Beyer, A. 2004). Problems regarding the precise definition of matters that should be considered of public interest have arisen in this defamation case. The rules against the tort of defamation are in strong conflict with the rights of free speech, and the issue at hand also demonstrates the subjection of the internet to the media restrictions as it regards defamation.

Dow Jones’ publication Barron’s Online put out an article entitled “Unholy Gains” which imputed that certain irregularities existed in Gutnick’s dealings with charities and also implied a connection between Gutnick and a convicted money launderer Nachum Goldberg. Any connection between Gutnick and a convicted criminal might be considered of public interest in that Gutnick’s actions would have abetted activities that impose indiscriminate harm on the public (ACMA, 2005). In this case, Gutnick would arguably have a right to file a suit against those who publicly implicated him in criminal activity. That Gutnick’s suit was “only in relation to that part of the article which portrayed him as Goldberg’s abettor” and was also narrowed to his home state Victoria are significant in the ruling of the court. Yet this case has even more far-reaching significance. Gutnick’s suit of Dow Jones and the Victorian court’s subsequent ruling in his favour has implications for further international rulings regarding the media and public figures for several reasons (Beyer, A. 2004).

The ruling of the Australian court against the American company Dow Jones was based on the legislative definition of the term “published”. Though Dow Jones argued that their material was published in New Jersey, the court insisted that “defamatory matter is published in each place in which it is read, seen [and] heard” (Beyer, A. 2004). Detractors have argued that this precedent has the potential to allow other rogue governmental regimes to wantonly issue defamation prosecutions. Others have argued that discrimination could occur where only those who are too poor or too societally ostracised to file suits would be made the targets of defamation (Beyer, A. 2004).

More criticism of the Australian defamation ruling offer scenarios in which public figures with the money enough to withstand such lawsuits would gain an advantage in the media, as they would have the pecuniary clout to let defamatory statements do their intended work and then pay the relatively meagre consequences. Furthermore, this ruling might hinder persons’ access to information on the internet, as websites might be likely to use software to determine the location of its users and then modify the content of web pages based on that information. It might also contribute to what is termed “forum shopping” in which public figures who have been defamed by the media seek out the courts most likely to rule in their favour (Beyer, A. 2004).

The regulations concerning the extent to which the media might broadcast matters concerning public figures appears to be rooted in the Privacy Act 1988 from which the media possesses a certain degree of exemption. The fact that laws governing free speech and free press are non-explicit makes it difficult to determine precisely when the media publishers might be considered as doing their job and when they are simply probing unduly into persons’ private lives. The fact that the internet is widely accessible as a publishing tool further complicates matters. Public figures, like private individuals, have legal rights that protect them against such injustices as character defamation and breaches of confidence. Yet, the public nature of their lives and work often make it difficult to distinguish between matters of interest only to them and those of public interest. It is within those blurred lines that media controversies and relate legal hassles usually occur.

 

References

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Australian Press Council. 2006. Press Law in Australia. Sydney. Retrieved on October 12, 2006 from http://www.presscouncil.org.au/pcsite/fop/auspres.html#privacy

Beyer, A. 2004. “Defamation on the Internet: Joseph Gutnick v Dow Jones.” Murdoch University Electronic Journal of Law. Vol. 11 no. 3. September.

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Flew, T. 2001. ‘Broadcasting and the Social Contract: The Rise and Fall of the Australian Settlement’, in Global Media Policy in the New Millennium, Marc Raboy (ed.), University of Luton Press, London.

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McQuail, D. 1994. Mass Communication Theory: An introduction. 3rd edn, Sage, London.

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Steketee, M. 2001. “Canberra in control.” The Australian Media Supplement, 8–14 March, pp. 6–7.

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, S. 1998. “Lange v ABC: the High Court rethinks ‘constitutionalisation’ of defamation law.” Murdoch University Electronic Journal of Law. Vol. 5 no. 1. March.

 

[1] See Privacy Act 1988 section 7(1)2 and Schedule 2, Part II, Division 1 of Freedom of Information Act 1982.