So, nearly three years on from the original Australian Law Reform Commission report recommending a statutory right to privacy, the government is finally moving, albeit slowly, towards adopting it, with a “public issues paper”.

No one could accuse the government of rushing things, but in fairness to Brendan O’Connor, who is the first Minister for Privacy, the ALRC report on privacy was a magnum opus, with 74 sets of recommendations, and the government is already dealing with many of them (197 individual recommendations) with the first tranche of its response. Having waited this long, the government has correctly seized on the phone-hacking debacle to go on the offensive.

The mainstream media (honourably excepting the ABC’s Mark Scott) are virtually alone in opposing a right to privacy, and will offer two reasons.

The first is that a right to privacy automatically clashes with freedom of speech. This has been repeated so often that any debate is already heavily skewed in favour of the media. But rights always have to be balanced against each other, as the rights to privacy and free speech are in the European Convention on Human Rights. The media doesn’t argue for an absolute right to free speech elsewhere — indeed, News Ltd, for example, has adopted a habit of taking legal action and threatening legal action to curtail others’ right to free speech where it threatens the company. And the media voluntarily self-censors on matters such as suicide, where they accept that harm may result from certain types of free speech. Virtually no one argues for an absolute right to free speech — we all accept limits in areas such as defamation or causing harm, even if we debate where those limits should be.

So asserting that a right to privacy is at odds with a right to free speech isn’t an argument that gets us very far: the issue is how those rights, like other rights, are balanced. The ALRC proposal sets the bar on a right to privacy very high, proposing that only actions that are “highly offensive”, and where a person has a “reasonable expectation of privacy” be captured, and that a public interest test apply.

But the ALRC also recommended that the list of remedies available to plaintiffs include injunctions, raising the prospect that injunctions could be used to prevent publication even of material that is defensible under the law. That’s not a new threat — pre-emptive injunctions are already used to try to silence media outlets — but extending it is a problem. This will be a key section of the government’s discussion paper.

The clearest problem about the purported conflict between a right to privacy and a right to free speech can be seen in the UK. There is no statutory right to privacy in the UK, but courts have extrapolated one from the Human Rights Act, which imposed on public institutions a requirement to observe a right to privacy. In doing so, they have inflicted significant collateral damage on free speech, including via super-injunctions. That is, a failure by the British Parliament to debate and establish a narrowly framed right to privacy has seen judges go off and create their own, without any of the protections of policy making or public debate.

The second argument the media will run is that a right to privacy will merely be used by the wealthy. The sleight-of-hand with this argument is that it assumes that the legal system isn’t already comprehensively biased towards those with the financial resources to go to court . Other rights aren’t curtailed simply because it’s easier for the wealthy to exercise them — you don’t see the media campaigning against the right to private education, for example, just because it’s easier for the wealthy to exercise it. And again, what’s been the UK experience? What has led judges to make common law about a “right to confidentiality” on the run? The very expensive legal actions of Naomi Campbell, Michael Douglas and Catherine Zeta-Jones and innumerable soccer players covering up their affairs with glamour models.

But just to play devil’s advocate, if the mainstream media want an argument to run with, they could do worse than point out the hypocrisy of a government willing to extend a right to privacy in relation to the media, but engaged in a rolling campaign to restrict privacy elsewhere. The recent and unexplained extension of ASIO’s surveillance powers regarding foreign intelligence will soon be followed up by Cybercrime Legislation Amendment Bill 2011, designed to enable Australia to accede to the Council of Europe Convention on Cybercrime, described by US civil liberties groups as “the world’s worst internet law” because of its potential to require states to restrict online behaviour that is legal in their country but illegal somewhere else (although there’s a carve-out for political activity).

The Bill will allow ASIO and the AFP — subject to some limited safeguards — to demand ISPs and telcos preserve non-content user data, such as billing records, and content such as emails, voicemail and SMSs, and to do so on the request of foreign law enforcement agencies. Rupert Murdoch’s companies may not be allowed to hack your voicemail, but the AFP will be able to do so at the request of foreign government.

Meanwhile, the attempt by the US government, at the behest of copyright cartel, to impose draconian copyright restrictions on other countries via the Trans-Pacific Partnership treaty  under negotiation continues.

These issues won’t get a look-in during the ensuing debate over a right to privacy, of course. But a government that can invade your privacy poses a greater threat than any media company.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey