Submission - Right to Sue for Serious Invasion of Personal Privacy - Australian Research
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Professor Mark Pearson BA DipEd MLitt LLM PhD Professor of Journalism Bond University Gold Coast Queensland 4229 Phone 07-55-95-2516 Fax 07-55-95-2545 Mobile 0439727304 E-Mail [email protected] Twitter: @journlaw Blog: journlaw.com Facebook: Journ Law Privacy and FOI Policy Branch Department of the Prime Minister and Cabinet 1 National Circuit BARTON ACT 2600 [email protected]
November 4, 2011
Submission on behalf of collaborative research team - ARC Linkage Grant LP0989758 "Vulnerability and the news media: Investigating print media coverage of groups deemed to be vulnerable in Australian society and the media's understanding of their status"
Please accept this submission on the Issues Paper – A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy on behalf of our collaborative research team undertaking ARC Linkage Project LP0989758 "Vulnerability and the news media: Investigating print media coverage of groups deemed to be vulnerable in Australian society and the media's understanding of their status". Our three year investigation ends this year and we plan to publish our findings throughout 2012.
This submission is restricted to agreed information and insights from the Vulnerability Project team we believe is relevant to your work. It addresses a selection of the questions your paper raises on pages 52-53 on which we feel our research and expertise can make a contribution.
Vulnerability research project
Our project explores the interface between journalists and sources at moments of vulnerability. It also studies journalists' interaction with sources who, by definition, might be classed as 'vulnerable' in the situation of a journalistic interview or news event. These may include, for example, people who have been affected by suicide, people who are experiencing symptoms associated with mental illness, Indigenous people and children.
Professor Kerry Green from the University of South Australia is project leader. Other Chief Investigators on the project include Professor Michael Meadows (Griffith University), Professor
1 Stephen Tanner (University of Wollongong), Dr Angela Romano (Queensland University of Technology) and Professor Mark Pearson (Bond University). Industry Partner Investigators are Ms Jaelea Skehan (Hunter Institute of Mental Health) and Ms Cait McMahon (Dart Centre for Journalism and Trauma- Asia Pacific). Mr Jolyon Sykes is the research assistant for the larger project, while Associate Professor Roger Patching, Annabelle Cottee and Jasmine Griffiths from Bond University have assisted with the preparation of this submission.
As well as the HIMH and DART, other industry contributors to the project have been the Australian Press Council, the Australian Multicultural Foundation, the Journalism Education Association Australia (JEAA), Special Olympics Australia and the Media Entertainment and Arts Alliance (MEAA).
We are confident our findings will help inform your deliberations for the following reasons: * We have undertaken an extensive content analysis of newspaper reportage of situations involving vulnerable sources, and our focus group participants have commented on the issues of intrusion, vulnerability and privacy in relation to print media; and * We have undertaken a small extension study looking at the co-regulatory and self- regulatory decisions involving media interaction with vulnerable sources.
We can provide a detailed methodology of our project if you require it, but here is a brief summary of our research steps for the purposes of this submission: * A content analysis of newspaper articles published in selected national, metropolitan, regional and suburban newspapers on a randomly generated publication day during each month of 2009. * A series of focus groups across four states held during 2010 and 2011, made up of social groups documented as being more 'vulnerable' during interactions with the news media (for example, people with mental illness, people who have experienced trauma, Indigenous people, people from a culturally and linguistically diverse (CALD)/non- English speaking background, people with a disability) as well as mixed focus groups with participants from a range of groups that may be deemed vulnerable. * Analysis of decisions of the Australian Press Council (APC) and the Australian Communications and Media Authority (ACMA) relating to complaints about media interaction with sources during 'moments of vulnerability'.
Insights and recommendations
We will still be undertaking our analysis and writing up our findings in the remaining months of our project, so we cannot provide you with conclusive findings at this stage. However, we can offer the following insights you might find relevant to your deliberations on whether a statutory cause of action for serious invasions of privacy should be enacted. To that end, we have structured it to accord with the questions as numbered in your Issues Paper, but have only addressed selected items.
Question 1. Do recent developments in technology mean that additional ways of protecting individuals’ privacy should be considered in Australia? Our group believes the technology or platform being used is irrelevant to the expected standards of interaction with vulnerable sources. Of course, technology raises new issues such as the news media’s use of social media material, but fundamental ethical principles of truth, fairness,
2 accuracy, transparency and equity should apply to content across all platforms. The research team particularly notes the challenges associated with allowing the ‘public’ to comment on stories that affect people who may be vulnerable. Editorial processes should be in place so that such comments sections – whether on the news media outlet’s website or social media presence – are moderated and comply with media codes and other standards applying to situations where vulnerable sources are involved, particularly where their right to privacy might be at issue. Online and social media also raise important questions regarding the definition of journalism and whether or not some New Media providers identify with, and ascribe to, journalistic ethics and values. Our own study and views are restricted to those ascribing to such values.
The Australian Communications and Media Authority (ACMA) recently published its ‘Review of Privacy Guidelines for Broadcasters’ (http://www.acma.gov.au/webwr/_assets/main/lib410086/ifc28-2011_privacy_guidelines.pdf). The ACMA proposed that the publication of material obtained from online social media sites would not be an invasion of privacy 'unless access restrictions have been breached'. This might be technically correct, however we suggest that the mainstream media's use of social media material can deeply affect vulnerable and traumatised individuals and news media should exercise caution in any use of such material.
Question 4. Is ‘highly offensive’ an appropriate standard for a cause of action relating to serious invasions of privacy? Our research team was not established to consider broader policy and political aspects of its research into the interaction between the news media and vulnerable groups and individual sources. Our only observations on this question are that the term ‘highly offensive’ is relative and that what might seem almost a routine intrusion into the privacy of one citizen might be quite a significant and traumatising intrusion – ‘highly offensive’ – to a citizen who is vulnerable. Citizens’ vulnerability to journalism practices is not confined to their portrayal in the media or to their consumption of media products, but can also be impacted by the experiences of their interactions with journalists and researchers during the reporting and interview processes. Media intervention at crucial moments in the midst of a tragedy or even later when calling upon someone to recount a major event in their lives can be traumatic and can have long-term impacts on their emotional well being and mental health. It can also exacerbate existing psychological conditions. If any such standard was developed we would ask that it be framed to take account of the vulnerability of the individuals involved at that time, as discussed further in answer to Question 8 below.
Question 6. How best could a statutory cause of action recognise the public interest in freedom of expression? We do not have advice on the best mechanism for doing so, but we simply state that our own project has operated on the basis that there is an important public interest in freedom of expression. Any proposal for a new cause of action for serious invasion of privacy would surely need to strike a balance between media freedom/public interest and important rights, interests and vulnerabilities of other citizens. Our project has been informed by an agreed understanding that public interest considerations will sometimes excuse some intrusion into the lives of vulnerable sources, but that these occasions are rare and would need substantial justification. In the cases where the person whose privacy has been compromised is a politician, the test which seems to have been applied by the ACMA is whether the private behaviour adversely affected public
3 duties, not merely threatened to affect them. We consider this to be a reasonable test. Another test is whether private behaviour contradicts public statements on matters of public importance. We also recommend that the concept of public interest be better defined than it is at present in terms of public benefit and public importance.
Question 8. Should any legislation allow for the consideration of other relevant matters, and, if so, is the list of matters proposed by the NSWLRC necessary and sufficient? We restrict our comment on this matter to the NSWLRC’s mention of ‘the claimant’s vulnerability’ at sub-clause v. as a factor that may be considered relevant to whether an invasion of privacy is actionable. Such a consideration should certainly feature in any such list of determinants if you choose to go down this path. Our group is willing to offer further guidance on what might be encompassed by the term ‘vulnerability’ in a news media context. Early in our project our group reached the important insight that, while there are certain groups in society whose members appear more likely to be ‘vulnerable’ in their interactions with the media (including the aged, people with a disability, people experiencing symptoms of mental illness, those impacted by the suicide of someone they know, people of non-English speaking background and Indigenous people) – other citizens who are not members of these groups can find themselves in situations of vulnerability through the circumstances of a news event. For example, the parents of an injured child will undoubtedly be traumatised by the event and might not be in a position to properly understand the offer of an opportunity to respond to a media inquiry, or the consequences of their decision to respond or not. An earlier related ARC project, ‘Trauma and the Newsroom’, found that an important issue for people who had experienced a mentally traumatic event, a ‘critical incident’, was a feeling of loss of control over their lives. The project found that engagement with the news media could help or hinder such people to regain control (Sykes et. al., 2003). Chadwick (2004) coined ‘fame by chance’ to describe ordinary citizens who have been thrust into the media spotlight by unusual events. Pearson (2005) took this further to propose a ‘Privacy Mandala’ – a newsroom checklist that could take account of a range of factors journalists might consider before intruding into the privacy of others - including the nature of the private material, the means of intrusion, the fame of the individual with a special red flag for children and the ‘media vulnerable’, and the damage caused. Thus, we agree that the use of the NSWLRC’s approach might make a cause of action available in a broader range of situations, assessed on a case-by-case basis, but that special guidance be available for assessing the vulnerability of individuals in a given privacy invasion situation. We propose the essence of sources’ vulnerability is often directly related to their relative powerlessness (real or perceived) when compared with the positions of power occupied by traditional media. Their interaction with individual journalists as representatives of these larger corporations is informed to some extent by that power imbalance, combined with other factors such as their ignorance of media practice and complaints procedures that might be open to them.
Question 9. Should a non-exhaustive list of activities which could constitute an invasion of privacy be included in the legislation creating a statutory cause of action, or in other explanatory material? If a list were to be included, should any changes be made to the list proposed by the ALRC? Our data analysis is still in progress, but our group has found numerous news situations where the media have interacted with vulnerable individuals – drawn from our extended content analysis of newspapers and our focus group interviews. As our analysis proceeds in coming months, we are likely to be able to add to the ALRC’s four examples of such contexts.
4 Questions 12-15 related to remedies, damages and offers of amends We do not profess expertise in these areas, but our investigations into the interactions between journalists and vulnerable sources prompt some observations on the existing self-regulatory and co-regulatory systems and media ethical codes because some of the remedies you propose involve either alternative dispute resolution or non-monetary awards. In this area, a new statutory cause of action might overlap with existing regimes, so our findings on the operations of these regimes may be of assistance. Firstly, being able to "reply", "complain" or “sue” implies a vulnerable individual has a level of literacy or capacity, which may be impaired in some sources who may be vulnerable (such as those from a non-English speaking background, some Indigenous persons and also some with an intellectual disability or mental illness and some highly traumatised persons). Currently, there is no other way to complain or to "reply" without a level of literacy, capacity and understanding of the processes that would make that happen. It also implies a level of access to financial and advisory resources that a vulnerable person might lack. While wealth does not exclude an individual from being vulnerable in a new situation, our observation is that the poor are over- represented among the groups who are more likely to be vulnerable to exploitation in a newsworthy situation that involves them or their families. We note that many of the major privacy actions in Europe have been brought by wealthy celebrities. Any new law in Australia would need to have an accompanying element of equitable access for the vulnerable poor – in the form of legal aid or other advisory services to assist them in making a complaint – whether that be via legal, self-regulatory or co-regulatory proceedings.
We have submitted to both the Convergence Review and the Independent Media Inquiry that after examining the variety of codes impacting upon journalists’ interaction with vulnerable sources that the era of converged media where journalists frequently work across platforms moots for either a single code of practice or at least uniform wording across the various codes. A reporter working for a single media outlet is often operating under the media outlet’s in-house code, the industry code, the MEAA Code of Ethics plus supplementary guidelines and the statutory and case laws that might apply to the particular interaction. As educators we know this is far too much for any single individual to absorb. Our submission to the Convergence Review identified at least six codes of practice and related documents that print journalists and editors need to navigate when dealing with ethical issues. This does not include the actual laws applicable or subsidiary documents such as the Australian Press Council’s Advisory Guidelines and Specific Standards, which may also be relevant to the circumstances. We are sure you will agree that a grasp on all these codes and their individual clauses is beyond the command of a single practitioner, particularly one facing a tough ethical decision under pressure from newsroom supervisors within a tight deadline. To illustrate the variation in wording, Appendix 1 groups the privacy provisions of the various codes of practice (excluding special guidelines developed by the Australian Press Council on many issues). Appendix 2 is an extract from Pearson and Polden (2011, pp.404-410) examining the operation of these codes in the realm of privacy breaches. (The Press Council’s principles have since been updated and can be found at www.presscouncil.org.au/general-principles/ and www.presscouncil.org.au/privacy-principles/ ).
Our project's focus on vulnerability and our work with psychologists specialising in the field prompts the following additional comments on the current codes of practice as they apply to sources in a situation of vulnerability:
5 o We suggest the term 'consent' requires further clarification by means of an explanation that some vulnerable interviewees might appear to be giving consent but in reality might be traumatised or in shock, might simply be responding to the authority of the reporter or might have a mental illness or intellectual disability which is not immediately apparent to the journalist. o The various guidelines related to 'Children and vulnerable people' only address this in part. Our group agrees children are indeed worthy of special consideration but that other potentially vulnerable groups should be identified, including the aged, people with a disability, people experiencing symptoms of mental illness, those impacted by the suicide of someone they know, people of non-English speaking background and Indigenous people. Further, it should be noted that the circumstances of the news event itself can render an individual 'vulnerable' in its immediate (and longer term) aftermath, so journalists should be alert to signs that an individual might not be in any state to be giving an interview or revealing information. (Journalists could be provided with some additional information to help them decide how to proceed where it is possible that vulnerability has impacted their source's ability to provide informed consent.) o Dr Romano points out that additional care must be taken when the media deal with a vulnerable person, to recognise that children, and indeed many other categories of vulnerable people, may not have the confidence or social skills to decline a request by a media person for an interview. Children and other vulnerable people may not necessarily be able to anticipate the types of questions that they may face, thus not fully understand the consequences of consent. Once sensitive questions arise, they may not always feel as if they can control what they disclose and may feel pressured to answer questions that are disturbing to them. o Consent must be considered 'qualified' rather than 'absolute'. Dr Romano suggests the guidelines do not acknowledge the right to withdraw consent. Thus the guidelines may suggest inadvertently that consent is something that is only relevant at the beginning of a person's interaction with the media. If a person has initially agreed to speak with the media, then it is also reasonable that they should be able to withdraw agreement at any time during an interview or other discussion intended for publication. Similarly, if a person agrees to have her/his personal details revealed, then s/he may rescind that agreement prior to the time that the information is published. This right should be respected unless a higher public interest is served by transmitting the material - such as exposure of a major crime or revelation of other matters of considerable public importance. Given the nature of news selection and production processes, it may not always be possible to withdraw content relating to a given individual if a request is made shortly before a newspaper is about to go to press. However, such requests should be accommodated unless time restrictions make it impossible to do so. o Dr Romano also makes the observation that children and other vulnerable people may be less conscious of their rights to withdraw consent once they find their participation has caused discomfort. Even if children do have a sense of their right to withdraw, they may not have reached a stage in their development where they have sufficient confidence or social skills to express such preferences. As was discussed above, other vulnerable people may face a number of circumstances that similarly leave them less able to articulate a withdrawal of consent. The codes could also recognise the fact that journalists themselves can be affected by trauma and in certain situations might unwittingly reveal private information about themselves or convey private emotions they would not want covered by other media. An example might be
6 a reporter overcome by emotion while covering a tragic event, with other media publishing their very public breakdown, which happened this year in coverage of the Christchurch earthquake. The codes might accommodate guidelines to inform editorial decisions in this kind of scenario.
Our research also sheds some light on the Australian Press Council’s adjudication of complaints relating to newspapers’ dealings with sources in situations of vulnerability. ‘Effectiveness’ is a qualitative measure beyond the scope of our project and a thorough study would be needed. We have, however, identified only seven complaints regarding journalists’ interaction with ‘vulnerable sources’ adjudicated by the Australian Press Council over the 2008-2010 period. This indicates that either: o News media interaction with vulnerable sources is not as negative as our focus group members seemed to perceive; o Alternative dispute resolution techniques are effective; or o Complainants are not pursuing their complaints or are withdrawing them at an earlier stage. On the latter point, it could well be that making a complaint to the Press Council requires knowledge that the complaints mechanism exists and a relatively high level of literacy about the steps involved in that process. Vulnerable sources may well have a desire to complain, but not the energy or competence at the time to do it. This relies on third-party support to make the complaint - which is not always available. Dr Romano has noted that in training sessions with multicultural communities in South-East Queensland this year for another project that people often do not have much grasp of the processes, and when they get the documents that tell them how to reply or complain, people often do not have much sense of what to do with them. It is not just a question of literacy in terms of understanding English, but a real inability to grasp the complexity of the documents, the concepts that underlie them, and the resulting processes.
Some of our focus group participants expressed the views that they were either ignorant of, unhappy with, or frustrated by, the co-regulatory and self-regulatory systems in place when they made complaints or sought information about how they could complain. This indicates the current systems are either not working or that there is a perception within the community that they are not working.
Our brief does not include presenting firm recommendations on whether a new action for serious invasion of privacy is needed. We ask only that the interests of the vulnerable be duly considered in the process, taking into account the issues we have raised above.
We are happy to provide further insights into our project and are available for further inquiries or assistance. Please feel free to email me at [email protected], project leader Professor Green at [email protected] or Dr Romano at [email protected] and we will refer you to our academic or industry colleagues who might best be able to help.
Yours sincerely,
Professor Mark Pearson
7 References Chadwick, P. (2004). ‘Privacy and Media - subtle compatibility - five categories of fame.’ 26th International Conference on Privacy and Personal Data Protection, Wroclaw, Poland. Pearson, M. (2005). The privacy mandala: Towards a newsroom checklist for ethical decisions. Refereed paper presented to the Journalism Education Conference, Griffith University, Tuesday 29th November - Friday 2nd December, 2005, Gold Coast International Hotel, Surfers Paradise, Australia. Retrieved from http://epublications.bond.edu.au/hss_pubs/249 Sykes, Jolyon, Gary Embelton, Kerry Green, Cratis Hippocrates and Ian Richards. (2003, December), Covering trauma: A more collaborative approach. Australian Journalism Review 25(2).
8 Appendix 1: Industry Codes of Practice variations on privacy-related issues
Australi Subscription http://www.acm 2.2 News Must not present material in a an Broadcast a.gov.au/webwr/ and current manner that creates public Commu Television aba/contentreg/c affairs panic; must include only nication Codes of odes/television/d programs – sparingly material likely to s and Practice 2007 ocuments/stbcod s 2(b)(i)-(v) cause distress to a substantial Media esofpractice200 number of people; must display Authori 7.pdf sensitivity in broadcasting ty images of, or interviews with, (ACM bereaved relatives or survivors A) of traumatic events; will take all reasonable efforts to provide warnings when there are identifiable public interest reasons for broadcasting material which may seriously distress or seriously offend a substantial number of people; must only broadcast reports of suicide or attempted suicide where there is an identifiable public interest reason for doing so and not use language or images that glamorise or sensationalise suicide in any way or be explicit about the method or location by including a description or similar details. Australi Subscription http://www.acm 2.2 News Licensees must not use an Broadcast a.gov.au/webwr/ and current material relating to a person’s Commu Television aba/contentreg/c affairs personal or private affairs, or nication Codes of odes/television/d programs – which invades an individual’s s and Practice 2007 ocuments/stbcod s 2(c) privacy, other than where there Media esofpractice200 are identifiable public interest Authori 7.pdf reasons for doing so. ty (ACM A) Australi Subscription http://www.acm 2.3 Program Licensees will have particular an Broadcast a.gov.au/webwr/ promotions regard to the need to protect Commu Television aba/contentreg/c and news children from unsuitable nication Codes of odes/television/d updates material in program s and Practice 2007 ocuments/stbcod promotions, news updates and Media esofpractice200 news promotions.
9 Authori 7.pdf ty (ACM A) Australi Commercial http://www.acm Code of News programs must depict an Radio a.gov.au/webwr/ Practice 2.1: news fairly; not create public Commu Australia – aba/contentreg/c News and panic; distinguish news from nication Codes of odes/radio/docu Current comment; not invade an s and Practice ments/commerci Affairs individual’s privacy. Media al_radio- programs Authori codes_and_guid ty elines_5sept201 (ACM 1.pdf A) Australi Commercial http://www.acm Code of News programs must not use an Radio a.gov.au/webwr/ Practice 2.1: material relating to a person’s Commu Australia – aba/contentreg/c News and personal or private affairs, or nication Codes of odes/radio/docu Current which invades an individual’s s and Practice ments/commerci Affairs privacy, unless there is a public Media al_radio- programs interest in broadcasting such Authori codes_and_guid information. ty elines_5sept201 (ACM 1.pdf A) Australi Commercial http://www.acm Code of Must not broadcast the words an Radio a.gov.au/webwr/ Practice 6: of an identifiable person Commu Australia – aba/contentreg/c Interviews without advance notice, or if nication Codes of odes/radio/docu and they have been recorded s and Practice ments/commerci talkback without the knowledge of the Media al_radio- programs person, express consent. Authori codes_and_guid ty elines_5sept201 (ACM 1.pdf A) Australi Community http://www.acm Code of Will respect people’s an Radio a.gov.au/webwr/ Practice 3.5: legitimate right to protection Commu Broadcasting aba/contentreg/c General from unjustified use of material nication – Codes of odes/radio/docu programmin which is obtained without s and Practice ments/communit g consent or through an invasion Media y_radio_codes_ of privacy. Authori of_practice- Will not broadcast the words of ty 23oct08.pdf an identifiable person without (ACM advance notice, or if they have A) been recorded without the knowledge of the person, express consent. Australi Community http://www.acm Code of Involve and take advice from an Radio a.gov.au/webwr/ Practice 4: Indigenous Australians in the
10 Commu Broadcasting aba/contentreg/c Indigenous production of programs nication – Codes of odes/radio/docu programmin focusing on Indigenous s and Practice ments/communit g and Australians and issues; verify Media y_radio_codes_ coverage of and observe the best way to Authori of_practice- Indigenous respect culture and customs. ty 23oct08.pdf issues (ACM A) Australi Commercial http://www.acm News and News programs must not use an TV Industry a.gov.au/webwr/ current material relating to a person’s Commu Code of aba/contentreg/c affairs personal or private affairs, or nication Practice 2010 odes/television/d programs: s which invades an individual’s s and ocuments/2010- 4.3.5 privacy, unless there is a public Media commercial_tv_i interest in broadcasting such Authori ndustry_code_of information or the licensee has ty _practice.pdf obtained the person’s prior (ACM consent. A)
Australi Commercial http://www.acm News and Must exercise sensitivity when an TV Industry a.gov.au/webwr/ current broadcasting images of or Commu Code of aba/contentreg/c affairs interviews with bereaved nication Practice 2010 odes/television/d programs: s relatives and survivors or s and ocuments/2010- 4.3.6 witnesses of traumatic Media commercial_tv_i incidents. Authori ndustry_code_of ty _practice.pdf (ACM A)
Australi Commercial http://www.acm News and Licensees should avoid an TV Industry a.gov.au/webwr/ current identifying a single person or Commu Code of aba/contentreg/c affairs business when commenting on nication Practice 2010 odes/television/d programs: s the behaviour of a group of s and ocuments/2010- 4.3.7 persons or businesses, unless it Media commercial_tv_i is not unfair to do so or the Authori ndustry_code_of licensee discloses that that ty _practice.pdf person/business does not (ACM engage in that behaviour. A)
Australi Commercial http://www.acm News and Must take reasonable steps to an TV Industry a.gov.au/webwr/ current ensure all murder or accident Commu Code of aba/contentreg/c affairs victims are not identified nication Practice 2010 odes/television/d programs: s directly, or where practicable, s and ocuments/2010- 4.3.8 indirectly before immediate Media commercial_tv_i families are notified by Authori ndustry_code_of authorities.
11 ty _practice.pdf (ACM A) Australi Commercial http://www.acm News and Must not portray any person or an TV Industry a.gov.au/webwr/ current group of persons in a negative Commu Code of aba/contentreg/c affairs light by placing gratuitous nication Practice 2010 odes/television/d programs: s emphasis on age, colour, s and ocuments/2010- 4.3.10 gender, national or ethnic Media commercial_tv_i origin, physical or mental Authori ndustry_code_of disability, race, religion or ty _practice.pdf sexual preference unless it is in (ACM the public interest to broadcast A) a story when such issues are raised. Australi ABC Code of http://www.abc. IV. Dealing with participants an Practice 2011 net.au/corp/pubs Principles 5.1 Participants in ABC Commu /documents/code and content should normally be nication ofpractice2011.p Standards: informed of the general nature s and df s.5.1-5.8 of their participation. Media Fair and 5.2 A refusal to participate will Authori Honest not be overridden without good ty Dealing cause. (ACM Opportunity to respond A) 5.3 Where allegations are made about a person or organisation, make reasonable efforts in the circumstances to provide a fair opportunity to respond. Attribution and sources 5.4 Aim to attribute information to its source. 5.5 Where a source seeks anonymity, do not agree without first considering the source’s motive and any alternative attributable sources. 5.6 Do not misrepresent another’s work as your own. Undertakings 5.7 Assurances given in relation to conditions of participation, use of content, confidentiality or anonymity must be honoured except in rare cases where justified in the public interest. Secret recording and other types of deception
12 5.8 Secret recording devices, misrepresentation or other types of deception must not be used to obtain or seek information, audio, pictures or an agreement to participate except where: a. justified in the public interest and the material cannot reasonably be obtained by any other means; or b. consent is obtained from the subject or identities are effectively obscured; or c. the deception is integral to an artistic work and the potential for harm is taken into consideration. Australi ABC Code of http://www.abc. IV. 6.1 Intrusion into a person’s an Practice 2011 net.au/corp/pubs Principles private life without consent Commu /documents/code and must be justified in the public nication ofpractice2011.p Standards: interest and the extent of the s and df s.6.1 intrusion must be limited to Media Privacy what is proportionate in the Authori circumstances. ty (ACM A) Australi ABC Code of http://www.abc. IV. Avoid the unjustified use of an Practice 2011 net.au/corp/pubs Principles stereotypes or discriminatory Commu /documents/code and content that could reasonably nication ofpractice2011.p Standards: be interpreted as condoning or s and df s.7.7 Harm encouraging prejudice. Media and offence Authori ty (ACM A) Australi SBS Codes http://media.sbs. 1.3 SBS seeks to counter attitudes an of Practice com.au/home/up Prejudice, of prejudice against any person Commu 2006 load_media/site Racism and or group on the basis of race, nication _20_rand_21383 Discriminati ethnicity, nationality, sex, age, s and 11027_sbscodes on sexual preference, religion, Media ofpractice2010.p disability, mental illness, or Authori df marital, parental or ty occupational status. SBS will (ACM avoid programming which A) clearly condones, tolerates or
13 encourages discrimination on these grounds. Australi SBS Codes http://media.sbs. 1.3.1 SBS will be sensitive to the an of Practice com.au/home/up Indigenous many cultural issues that Commu 2006 load_media/site Australians surround media presentation of nication _20_rand_21383 Indigenous issues. s and 11027_sbscodes Media ofpractice2010.p Authori df ty (ACM A) Australi SBS Codes http://media.sbs. 1.8 Will not broadcast the words of an of Practice com.au/home/up Interviews, an identifiable person without Commu 2006 load_media/site talkback advance notice, or if they have nication _20_rand_21383 and been recorded without the s and 11027_sbscodes audience knowledge of the person, Media ofpractice2010.p responses express consent. The manner of Authori df recording has made it ty manifestly clear that the (ACM material may be broadcast. If A) the person has withdrawn their consent, the material will only be broadcast if it is demonstrably in the public interest. Australi SBS Codes http://media.sbs. 1.9 Privacy The rights of individuals to an of Practice com.au/home/up privacy should be respected in Commu 2006 load_media/site all SBS programs. However, in nication _20_rand_21383 order to relate information to s and 11027_sbscodes the public which relates to a Media ofpractice2010.p person’s performance of public Authori df duties or about other matters of ty public interest, intrusions on (ACM privacy may, in some A) circumstances, be justified. Australi Community http://www.acm Code 3: Licensees will not use material an Television a.gov.au/webwr/ General relating to a person’s personal Commu Broadcasting aba/contentreg/c Programmin or private affairs, or which nication Codes of odes/television/d g Principles invades an individual’s s and Practice ocuments/comm - 3.5 privacy, if the consent of the Media unity_tv_broadc person (or in the case of a Authori asting_codes_of child, the child’s parent or ty _practice- guardian) has not been 9june2011.pdf obtained prior to the broadcast of the material, other than where there is an identifiable public interest reason for the
14 material to be broadcast. Australi Community http://www.acm Code 3: 3.7 Exercise special care before an Television a.gov.au/webwr/ General broadcasting images of dead or Commu Broadcasting aba/contentreg/c Programmin seriously wounded people, nication Codes of odes/television/d g Principles including having appropriate s and Practice ocuments/comm – 3.7-3.9 regard to the feelings of Media unity_tv_broadc relatives and viewers. Authori asting_codes_of 3.8 Exercise sensitivity in ty _practice- broadcasting images or 9june2011.pdf interviews with bereaved relatives and survivors or witnesses of traumatic incidents. 3.9 Take all reasonable steps to ensure that murder and accident victims are not identified directly or indirectly before their immediate families have been notified by the authorities. Australi Community http://www.acm Code 3: Provoke or perpetuate intense an Television a.gov.au/webwr/ General dislike, serious contempt or Commu Broadcasting aba/contentreg/c Programmin severe ridicule against a person nication Codes of odes/television/d g Principles or group of persons on the s and Practice ocuments/comm - 3.2(c) grounds of age, gender, sexual Media unity_tv_broadc preference, nationality, Authori asting_codes_of ethnicity, race, physical or ty _practice- mental ability or illness, or 9june2011.pdf religious or political affiliation unless comment is made fairly or in good faith. Australi Community http://www.acm Code 3: In broadcasting programs, an Television a.gov.au/webwr/ General licensees will take care in the Commu Broadcasting aba/contentreg/c Programmin portrayal of Indigenous people nication Codes of odes/television/d g Principles and their cultures by: s and Practice ocuments/comm - 3.4 (a) seeking appropriate advice, Media unity_tv_broadc including from Indigenous Authori asting_codes_of community broadcasting sector ty _practice- organisations, on Indigenous 9june2011.pdf protocols and practices; and (b) using appropriate language to avoid causing insult or disrespect. Australi Community http://www.acm Code 3: Licensees will exercise special an Television a.gov.au/webwr/ General care before using material Commu Broadcasting aba/contentreg/c Programmin relating to a child’s personal or nication Codes of odes/television/d g Principles private affairs in the broadcast s and Practice ocuments/comm - 3.6 of a report of a sensitive matter
15 Media unity_tv_broadc concerning the child. Consent Authori asting_codes_of of a parent or guardian should ty _practice- be obtained, unless there are 9june2011.pdf exceptional circumstances or an identifiable public interest reason not to do so. News Code of http://www.pert 3. 3.1 Do not use false names Limited Conduct – hnow.com.au/ne Misrepresen when representing a News Professional ws/code-of- tation Limited publication. Conduct conduct- 3.2 Do not try to get Policy professional- information or photographs by conduct- deception. policy/story- e6frg12c- 1226095201351 News Code of http://www.pert 4. Privacy 4.1 All individuals, including Limited Conduct – hnow.com.au/ne public figures, have a right to Professional ws/code-of- privacy. Journalists have no Conduct conduct- general right to report the Policy professional- private behaviour of public conduct- figures unless public interest policy/story- issues arise. e6frg12c- The right to privacy diminishes 1226095201351 when the suitability of public figures to hold office or perform their duties is under scrutiny and such scrutiny is in the public interest. "Public interest" is defined for this and other clauses as involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others. 4.2 Unless it is in the public interest to do so, do not identify the family or friends of people accused of or convicted of a crime. 4.3 The publication of sensitive personal information – such as taxation details, Family Court records and health and welfare matters – may be prohibited by legislation. Seek legal advice.
16 News Code of http://www.pert 5. Covert 5.1 Journalists and Limited Conduct – hnow.com.au/ne activities photographers may at times Professional ws/code-of- have to operate surreptitiously Conduct conduct- to expose crime, significantly Policy professional- anti-social conduct, public conduct- deception or some other matter policy/story- in the public interest. e6frg12c- All such operations must be 1226095201351 approved in advance by the editor. This approval will be given only where good cause exists to suspect crime or deception has taken place, and after all other means of gathering the facts have been exhausted. The editorial executive must be satisfied the importance of publishing the information sought outweighs any damage to trust and credibility which your newspaper might suffer by allowing employees to operate surreptitiously. Where appropriate, the nature and reasons for operating covertly should be disclosed to readers. 5.2 News Limited does not condone illegal acts by employees. News Code of http://www.pert 6. 6.1 The sources of information Limited Conduct – hnow.com.au/ne Confidential must be identified, wherever Professional ws/code-of- sources possible. Conduct conduct- When an informant insists on Policy professional- anonymity, verification of the conduct- information offered must be policy/story- sought from other, preferably e6frg12c- attributable, sources. 1226095201351 6.2 A promise of confidentiality to a source must, of course, be honoured. However, journalists must be aware of the possible consequences. For example, a judge may order the source to be identified. Defiance of this
17 order could lead to conviction for contempt of court, with the consequence being imprisonment or a heavy fine. News Code of http://www.pert 7. 7.1 Do not harass or try to Limited Conduct – hnow.com.au/ne Harrassmen intimidate people when seeking Professional ws/code-of- t information or photographs. Conduct conduct- 7.2 Do not photograph people Policy professional- on their property without their conduct- consent unless the public policy/story- interest in doing so is clear. e6frg12c- 7.3 If asked to leave private 1226095201351 property, do so promptly. 7.4 Do not persist in telephoning, pursuing, questioning, door-stopping or obstructing access after you have been asked by an authorised person to stop. News Code of http://www.pert 8. 8.1 Do not make pejorative Limited Conduct – hnow.com.au/ne Discriminati reference to a person's race, Professional ws/code-of- on nationality, colour, religion, Conduct conduct- marital status, sex, sexual Policy professional- preferences, age, or physical or conduct- mental capacity. policy/story- No details of a person's race, e6frg12c- nationality, colour, religion, 1226095201351 marital status, sex, sexual preferences, age, or physical or mental incapacity should be included in a report unless they are relevant. News Code of http://www.pert 9. Grief and 9.1 Reporters and Limited Conduct – hnow.com.au/ne distress photographers must always Professional ws/code-of- behave with sensitivity and Conduct conduct- courtesy toward the public, and Policy professional- in particular towards those conduct- involved in tragic events. policy/story- No one should be put under e6frg12c- pressure to be photographed or 1226095201351 interviewed. Initial approaches might best be made through friends or relatives. We should respect the wishes of the bereaved or grieving. 9.2 Do not go into non-public areas of hospitals, welfare institutions, funeral parlours,
18 churches, etc, without identifying yourself or without permission of the people affected or their intermediaries. 9.3 Maintain sensitivity when recalling tragedy or crime. Anniversaries can be distressing reminders for survivors. News Code of http://www.pert 10. Children 10.1 Extreme care should be Limited Conduct – hnow.com.au/ne taken that children are not Professional ws/code-of- prompted in interviews, or Conduct conduct- offered inducements to Policy professional- cooperate. conduct- 10.2 Do not identify children in policy/story- crime and court reports without e6frg12c- legal advice. 1226095201351 10.3 For legal reasons, children under the age of 16 must not normally be photographed or interviewed about their welfare unless a parent or guardian is present and has given permission. Similarly, children must not be interviewed about their parents or siblings unless a parent or other legally responsible adult is present and has granted permission. 10.4 Do not approach children in schools without the permission of a school authority. Sydney Code of http://www.smh. Respect Staff will respect private grief. Mornin Ethics com.au/ethicsco They have the right to resist g de/ pressure to intrude. Herald Sydney Code of http://www.smh. Attribution Staff will seek to attribute Mornin Ethics com.au/ethicsco information to its source. They g de/ will always declare the use of Herald pseudonyms in their work. They will seek to avoid being compromised by a source and to use multiple sources wherever possible. Where a source seeks anonymity, the journalist shall first consider
19 the source's motives and seek alternative attributable sources. Quotes not attributed to a named source will be used only with a section editor's approval. Where confidences are accepted the journalist will respect and protect them in all appropriate circumstances. Sydney Code of http://www.smh. Fairness Staff will use fair, honest and Mornin Ethics com.au/ethicsco responsible means to obtain g de/ material. They will identify Herald themselves and the newspaper before obtaining interviews or images. Sydney Code of http://www.smh. Privacy Staff will strike a balance Mornin Ethics com.au/ethicsco between the right of the public g de/ to information and the right of Herald individuals to privacy. They will recognise that private individuals have a greater right to protect information about themselves than do public officials and others who hold or seek power, influence or attention. They shall not exploit the vulnerable or those ignorant of media practices. Sydney Code of http://www.smh. Relevance Staff will not place Mornin Ethics com.au/ethicsco unnecessary emphasis on g de/ personal characteristics, Herald including race, ethnicity, nationality, gender, age, sexual orientation, family relationships, religious belief or physical disability. The Code of http://www.thea Professional Sources promised Age Conduct ge.com.au/ethics Practice - confidentiality must be conduct.html 10 protected at all costs. However, where possible, the sources of information should be identified as specifically as possible. The Code of http://www.thea Professional Only fair and honest means Age Conduct ge.com.au/ethics Practice - should be used to obtain conduct.html 11 material. Misrepresentation and the use of concealed equipment or surveillance devices should
20 be avoided. The use of deceptive methods or subterfuge may be condoned only where the Editor is convinced that the potential story is of vital public interest and there is no other way of obtaining the story. In such cases, the journalist has the right to decline an assignment. If the journalist accepts the assignment, the nature of deceptive methods and the reasons for their use must be published with the story. Journalists deployed in this manner will be indemnified by The Age. The Code of http://www.thea Professional People's privacy should be Age Conduct ge.com.au/ethics Practice – respected and intrusions on conduct.html 12 privacy should be published only if there is a public interest. The Code of http://www.thea Professional Caution should be exercised Age Conduct ge.com.au/ethics Practice – about reporting and publishing conduct.html 13 identifying details, such as street names and numbers, that may enable others to intrude on the privacy or safety of people who have become the subject of media coverage. The Code of http://www.thea Professional People should be treated with Age Conduct ge.com.au/ethics Practice - sensitivity during periods of conduct.html 14 grief and trauma and wherever possible, be approached through an intermediary. The Code of http://www.thea Professional Care should be taken when Age Conduct ge.com.au/ethics Practice - producing and publishing conduct.html 15 material on the anniversary of traumatic events or crimes not to cause undue distress to the victims or their families. The Code of http://www.thea Professional Photographs of victims or Age Conduct ge.com.au/ethics Practice – grieving people should not be conduct.html 16 published unless due consideration has been given to issues of sensitivity and privacy. Any restrictions placed on the use of
21 photographs supplied by family or friends should be honoured. The Code of http://www.thea Professional Special care should be taken Age Conduct ge.com.au/ethics Practice - when dealing with children conduct.html 21 (under the age of 16). The Editor must be informed when children have been photographed or interviewed without parental consent. Australi General http://www.pres General News and comment should be an Statement of scouncil.org.au/ Principle 4: presented honestly and fairly, Press Principles general- Respect for and with respect for the privacy Council principles/ Privacy and and sensibilities of individuals. (APC) Sensibilities However, the right to privacy is not to be interpreted as preventing publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports should be identified as such. Australi General http://www.pres General Publications should not place an Statement of scouncil.org.au/ Principle 8: any gratuitous emphasis on the Press Principles general- Gratuitous race, religion, nationality, Council principles/ emphasis on colour, country of origin, (APC) characteristi gender, sexual orientation, cs marital status, disability, illness, or age of an individual or group. Where it is relevant and in the public interest, publications may report and express opinions in these areas. Australi Statement of http://www.pres 1. Collection of personal an Privacy scouncil.org.au/ information Press Principles privacy- 2. Use and disclosure of Council principles/ personal information (APC) 3. Quality of personal information 4. Security of personal information 5. Anonymity of sources 6. Correction, fairness and balance 7. Sensitive personal information Media, Media http://www.allia Clause 11 Respect private grief and Entertai Alliance nce.org.au/docu personal privacy. Journalists nment Code of ments/codeofeth have the right to resist
22 and Ethics ics.pdf compulsion to intrude. Arts Allianc e (MEA A) Media, Media http://www.allia Clause 2 Do not place unnecessary Entertai Alliance nce.org.au/docu emphasis on personal nment Code of ments/codeofeth characteristics, including race, and Ethics ics.pdf ethnicity, nationality, gender, Arts age, sexual orientation, family Allianc relationships, religious belief, e or physical or intellectual (MEA disability. A) Media, Media http://www.allia Clause 8 Never exploit a person’s Entertai Alliance nce.org.au/docu vulnerability or ignorance of nment Code of ments/codeofeth media practice. and Ethics ics.pdf Arts Allianc e (MEA A)
(Compiled by research assistant Annabelle Cottee).
Appendix 2: ‘Privacy and the ethical regulators’ – excerpted from Pearson, M and Polden, M. (2011) The Journalist’s Guide to Media Law. 4th edition, Allen & Unwin, Sydney, pp. 404-410.
PRIVACY AND THE ETHICAL REGULATORS The question of intrusion into the lives of celebrities and public figures is as much an ethical question as it is a legal one. Much of the debate about privacy is in the realm of ethics rather than law, and the enforcement of such ethical standards is in the province of self-regulatory bodies like the Australian Press Council rather than in the laws of the land. In broadcast journalism, such transgressions fall within codes of conduct of industry groups regulated by the Australian Communications and Media Authority. The powers of such bodies are discussed in Chapter 13. MEAA (Australian Journalists’ Association) ‘Code of Ethics’ The preamble to the MEAA ‘Code of Ethics’ (see Appendix 1) highlights honesty, fairness, independence and respect for the rights of others as a fundamental commitment of journalists. It also specifically lists three clauses addressing privacy: 2. Do not place unnecessary emphasis on personal characteristics, including race, ethnicity, nationality, gender, age, sexual
23 orientation, family relationships, religious belief, or physical or intellectual disability. 8. Use fair, responsible and honest means to obtain material. Identify yourself and your employer before obtaining any interview for publication or broadcast. Never exploit a person’s vulnerability or ignorance of media practice. 11. Respect private grief and personal privacy. Journalists have the right to resist compulsion to intrude. These are key ethical guidelines for journalists, aimed at ensuring open and honest methods of newsgathering and a respect for privacy. However, there are serious problems with the enforcement of the code, which are discussed in Chapter 13. Australian Press Council ‘Statement of Principles’ Most newspaper publishers are members of the Australian Press Council, whose ‘Statement of Principles’ (see Appendix 2) addresses some key aspects of privacy. They read as follows (APC 2009): 4. News and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy is not to be interpreted as preventing publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports should be identified as such. 5. Information obtained by dishonest or unfair means, or the publication of which would involve a breach of confidence, should not be published unless there is an over-riding public interest. 7. Publications have a wide discretion in publishing material, but they should balance the public interest with the sensibilities of their readers, particularly when the material, such as photographs, could reasonably be expected to cause offence. 8. Publications should not place any gratuitous emphasis on the race, religion, nationality, colour, country of origin, gender, sexual orientation, marital status, disability, illness, or age of an individual or group. Where it is relevant and in the public interest, publications may report and express opinions in these areas. Notes 1. For the purposes of these principles, ‘public interest’ is defined as involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others. The Press Council’s Principle 4, related to privacy, seems to be less definitive than clause 11 of the MEAA ‘Code of Ethics’ above. It stresses the priority of ‘matters of public record’ and ‘public interest’ over privacy issues when the two are competing. Similarly, Principle 4 allows for the use of dishonest or unfair newsgathering practices if there is an ‘over-riding public interest’. Despite these public interest exemptions, the Press Council has frequently upheld complaints against newspapers on all of these grounds. Its adjudications are searchable through the Press Council’s website
24 standards to comply with the Commonwealth Government’s Privacy Act at
The main industry codes covering privacy are the MEAA (AJA) ‘Code of Ethics’ (MEAA 1999); the Australian Press Council’s ‘Statement of Principles’ and ‘Privacy Standards’ [APC] (APC 2009, 2010); FreeTV Australia’s ‘Code of Practice’ [FTV] (FTV); ‘Commercial Radio Australia’s Code of Practice’ [CRA] (CRA 2010); the ABC’s ‘Editorial Policy’ and its ‘Charter of Editorial Practice’ [ABC] (ABC 2008/2009); and the SBS ‘Codes of Practice’ [SBS] (SBS 2010). Square brackets indicate the abbreviations used in the analysis below. The ABC, the MEAA, the APC and FTV Australia all counsel against the highlighting or misuse of personal characteristics such as sexuality, race and marital status. Such clauses indicate an overlap between the privacy of such details and the potential discriminatory use of them, but fail to resolve the tension between the need for identifiable and descriptive facts about people in reportage and the intrusive or discriminatory use of such facts. For example, most reporters find the age of an interviewee an interesting fact by which they might identify someone to give the audience a better description of a news subject, while the guidelines might interpret this detail as discriminatory or intrusive. Better guidance is needed in these areas. Four of the codes—the ABC, APC, CRA and SBS—use the word ‘right’ when referring to privacy guidelines. For example, the ABC’s says ‘the rights to privacy of individuals . . . should be respected in all ABC content’. This is very surprising given the ABC was the appellant in Australia’s most significant recent High Court challenge against there being an actionable ‘right’ to privacy in Australia, the Lenah Game Meats case (2001), and proposed to appeal against a finding that it had breached the plaintiff ’s privacy in the Jane Doe case, before settling (Applegarth 2008). It can only be assumed that the ABC intends the word
25 ‘right’ to be interpreted in the lay, rather than strictly legal, sense. Several other indicators as to the nature of private material appear in the documents. All codes except CRA’s call for special care with situations involving death and its associated grief, which covers a significant number of major news events. There could be several explanations for this, but an important factor must be the prominence given to the potential for psychological harm stemming from intrusions into grief in the academic literature and popular press reports throughout the late 1980s and 1990s. (For example, see Richards 1996; Castle 1999; McLellan 1999.) The codes also flag potential danger zones for privacy material, including: journalistic use of rumour (APC); confidential information (MEAA and APC); offensive material, particularly photographs (APC); and fi le footage (ABC and FTV). Putnis (1994) alerted the industry to the latter hazard in his study of television use of file footage, which he identified as sometimes being ‘displaced, re-cut and recycled’. The codes also identify several methods of privacy intrusion. They sometimes identify the items in the positive, with the MEAA and APC both calling for transparency in the journalism role and the APC and ABC calling upon reporters to show respect for people’s privacy, while specific practices are identified as intrusive, such as the use of hidden cameras (ABC), non-identification of reporters (SBS), not seeking permission to record conversations (ABC) and the failure to obtain consent for the use of private material (CRA). Most have a public interest override clause, explained in the discussion below. All codes deal with individuals’ status as public figures or, alternatively, with their naivety about media practice, in dealing with whether intrusion of their privacy might be more or less justifiable. They also deal with the kinds of individuals involved, with special concern over the intrusion into the lives of children. The APC suggests public figures should be prepared to sacrifice their right to privacy ‘where public scrutiny is in the public interest’, while the ABC and SBS say intrusion may be justified when it relates to a person’s ‘public duties’. The MEAA warns journalists not to exploit those who may be ‘vulnerable or unaware of media practice’. The APC and the ABC counsel journalists against intruding into the lives of innocent third parties, with the APC restricting that advice to court cases. The FTV and the ABC make special mention of the vulnerability of children. The FTV code suggests ‘special care’ be exercised before reporting upon a child’s personal or private aff airs and advises journalists to get parental consent before linking a child to crimes involving family or detailing ‘sensitive health or welfare information’. Of course, laws usually prohibit this as well. The ABC warns journalists not to feature child witnesses to tragedy or traumatic experiences ‘except in special circumstances’. All this concern over the category of individuals whose privacy might be intruded upon links with Chadwick’s (2004) notion of a ‘taxonomy of fame’. Former Victorian privacy commissioner (now ABC Director of Editorial Policies) Paul Chadwick devised a useful starting point for weighing up whether someone is deserving of a certain level of privacy. He calls it the five categories of fame, each justifying different levels of protection. He argues that public figures who have courted fame or sought a public position deserve less privacy than those who find themselves in the public spotlight
26 by the hand of fate or because they have been born into a famous family. His five distinct categories include: fame by election or appointment, fame by achievement, fame by chance, fame by association and royal fame. He suggests the tension over media exposure of private details of an individual can be ‘eased’ by the use of such categories. Nevertheless, even the codes seem to go further than Chadwick’s list, which does not account for the special circumstances of children in the news. The ‘public interest’ exception to many of these requirements features in all of the media codes with varying degrees of explanation. Only the APC goes so far as to define ‘public interest’, which it says is ‘involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others’. This stops well short of the proposal by Morrison and Svennig (2002), which suggests the term ‘public interest’ has so frequently been confused with mere public curiosity that it should be replaced by the more meaningful expression ‘social importance’. Public interest is the trump card in many of our decisions, but we need to explain why a photo of actress Nicole Kidman collecting her children from school is of such social importance if we are to justify our intrusion into her privacy. Perhaps it is of social importance because she has publicly criticised formal schooling, or perhaps because she has publicly claimed to be home-schooling her children, or perhaps it is not of social importance but just mere curiosity and we have no grounds for publishing this photo at all.
27