If Australia had a Bill of Rights then trashy television programs like A Current Affair and Today Tonight might be forced to clean up their act. No longer would programs that masquerade as serious journalism be able to disregard the individual’s right to privacy in their quest for juicy yarns.

This is one way to read a groundbreaking judgement delivered last week by UK High Court’s Justice David Eady. Eady, who is a media law specialist, found last week that motor racing aficionado Max Mosley was entitled to damages after News of the World splashed a story across its front page in March this year that accused Mosley of having a Nazi-themed s-x orgy involving prost-tutes. One of the participants in the alleged orgy carried a hidden camera and was interviewed by News of the World.

Mosley did not sue for defamation but instead alleged “a breach of confidence and/or the unauthorised disclosure of personal information, said to infringe the Claimant’s rights of privacy as protected by Article 8 of the European Convention on Human Rights and Fundamental Freedoms.” The European Convention is the UK’s Bill of Rights.

Mosley’s lawyers argued successfully that “the content of the published material was inherently private in nature, consisting as it did of the portrayal of sado-masochistic and some s-xual activities.” Further they noted that “there had also been a pre-existing relationship of confidentiality between the participants. They had all known each other for some time and took part in such activities on the understanding that they would be private and that none of them would reveal what had taken place.”

Justice Eady makes it unambiguously clear that a right to privacy does exist in the UK and it will be protected by the courts.

The only defence the media has to breaching an individual’s right to privacy is that “there is a countervailing public interest which in the particular circumstances is strong enough to outweigh [that right]”, Justice Eady says.

And who decides what is in the public interest — journalists and their editors? No, says Justice Eady:

I cannot believe that a journalist’s sincere view on public interest, however irrationally arrived at, should be a complete answer. A decision on public interest must be capable of being tested by objectively recognised criteria.

So what is a ‘hard pressed journalist’ who faces deadlines to do when confronted with a decision on whether or not to publish a story which infringes the right to privacy?

“There may be a case for saying”, Justice Eady observes, “when ‘public interest’ has to be considered in the field of privacy, that a judge should enquire whether the relevant journalist’s decision prior to publication was reached as a result of carrying out enquiries and checks consistent with ‘responsible journalism’.”

There is a challenge to the media in Justice Eady’s judgment — if you allow self interest (in selling copy or boosting ratings) to tip the scales in favour of breaching an individual’s right to privacy then you will be punished.

Unfortunately in Australia, the right to privacy is not as well defined or protected because unlike the UK, or just about every other liberal democracy for that matter, we do not yet have a Bill or Charter of Rights. Australian citizens are in the second class carriage when it comes to protection of their privacy.

Peter Fray

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