There have been plenty of efforts to link the News of the World debacle to News Ltd here in Australia, not least in Crikey, where Stephen Mayne and Richard Farmer have suggested handing the international television service contract to Sky News is now a bad idea. Poor Sky, less than 15% owned by News Ltd but now popularly associated with the Murdoch empire, must be wondering what it did wrong.

It’s all a long bow to draw. There’s no direct connection between News Ltd in Australia and the vile actions of Murdoch’s outlets in the UK, let alone with Sky News. The problems of News Ltd are, instead, home grown. The company, and many of its editors and its journalists, simply poison public debate on an industrial scale. News Ltd, via its distorted and partisan reportage, is the single greatest impediment to better economic and social policy in Australia. In short, if you need phone hacking as a basis for attacking News Ltd, you’re looking in the wrong place.

The effort to link the company to the UK disgrace parallels efforts to suggest what went on in the UK is a peculiarly News Corp problem, that it has happened uniquely because of the innate evil of the Murdoch empire. The ability of the company to forestall investigation and action for so long may have reflected its unusual levels of influence, but plainly the reliance on private detectives and blaggers by the British media is far more widespread than the Murdoch stable.  The phone-hacking scandal is a reflection of the culture of the UK tabloids, not of Rupert Murdoch’s business practices. His empire may have held more sway over British politics — and, plainly, British policing — than other media proprietors but his ethics aren’t significantly better or worse than most other proprietors.

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A key part of the tabloid culture from which phone hacking emerged is the systematic disregard for privacy on the part of the British tabloids. The media in the UK have long ruthlessly exploited the lack of a statutory right to privacy. However, in 1998, the UK Human Rights Act, which gave effect to the European Convention on Human Rights, established a right to privacy in relation to public bodies.

This didn’t bind the media, but it did implicitly bind courts, and from that point UK case law has evolved to protect a “right to confidence”, which is what Naomi Campbell relied on to successfully sue the Mirror Group, in effect opening the floodgates on privacy protection. Courts also have to balance up another right in the Act and the Convention, the right to free expression, but that hasn’t stopped British courts from evolving, in effect, their own right to privacy via super-injunctions and even hyper-injunctions designed to stifle all discussion anywhere about an individual.

The result has been a bonanza for law firms as British celebrities bought a right to privacy unavailable to most UK citizens because of costs, and companies exploited the developing case law to prevent the revelation of embarrassing material.

The Australian connection to phone hacking isn’t therefore anything to do with News Ltd, but with our own gaping hole where a right to privacy would sit.

The equivalent external Convention for Australia to the European Convention on Human Rights is the International Covenant on Civil and Political Rights, but apart from the Privacy Act, that hasn’t been established in Australian law like the UK Human Rights Act did for privacy. The pressure for common law development along similar lines in Australia is thus less, but nonetheless present, particularly given we have nine parliaments rather than one. Because of its concern that common law would drive privacy protection, the Australian Law Reform Commission recommended in 2008 that a statutory right to privacy be created, and that the Privacy Act be strengthened to require the media ensure their own standards deal adequately with privacy.

The media, naturally, were hostile to the idea of a right to privacy, with the Australia’s Right To Know coalition — headed of course by News Ltd, declaring it inimical to free speech, a fake tension relied on by the media to fend off efforts to end their reliance on gossip and celebrity trivia. As super-injunctions in the UK have demonstrated, not having a right to privacy is a direct path to restrictions on free speech and reportage far worse than any balanced statutory right to privacy.

The ALRC went further.

Australia has in place a self-regulatory model for the print media and a co-regulatory model for the broadcast media. This framework also has been adopted in a number of overseas jurisdictions, including the United Kingdom and New Zealand. In light of changes to the media — in particular, technological convergence — this regulatory model no longer may be suitable …

Given the ALRC reached that conclusion before the outing of David Campbell, the revelations about John Della Bosca’s affair or those of Troy Boswell’s affair, one can only assume the commission would hold a rather stronger view now.

… the ALRC recommends that the Australian government should initiate a review to consider the ongoing effectiveness of the Telecommunications Act 1997 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth). Among other issues, the ALRC is recommending that this review should consider the roles and functions of the various bodies currently involved in the regulation of the telecommunications industry, including ACMA and the OPC. There are a number of similarities between the issues impacting on the telecommunications sector and the broadcast and print media; in particular, the increasing convergence of the technology.

The Law Reform Commission was spot on. In a converging media environment, privacy issues take on added complexity, with mass-market applications such as Facebook essentially voluntary data-mining operations, lack of safeguards for inexperienced internet users putting personal data online or having others do it without their consent (and subsequent media usage thereof), and the ongoing problems of poor personal data security by large communications and media corporations (one of the contributing factors to the phone-hacking scandal). Recall that the biggest personal data theft of recent years was of a media company, when crackers stole the personal information of millions of Playstation network users from Sony earlier this year.

These issues are, unfortunately, wholly absent from the Convergence Review being undertaken by Glen Boreham, Malcolm Long and Louise McElvogue, despite “the safeguarding of privacy” being mentioned in the preamble to the terms of reference. Neither the Review’s Framing Paper nor its recent Emerging Issues paper (of which more later) mention privacy. The government has yet to respond to the section of the ALRC paper calling for the enactment of a right to privacy. Maybe following the phone-hacking scandal, the government may discover that it’s not just about Rupert Murdoch, but about the balance between citizens and the media.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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