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The Privacy Imperative in the Information Age `Free for All' -Hon. P.J. Keating

The Privacy Imperative in the Information Age `Free for All' -Hon. P.J. Keating

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Published by Peter W Gossner
The Privacy Imperative in the Information Age `Free for All'

Address by Hon PJ Keating
The Centre for Advanced Journalism
University of Melbourne
4 August 2010
The final paragraph of this speech may perhaps serve well here as a summary.

"To date, governments have been pretty wary about meddling with the media. But
even wary ones will pick up the public disquiet. And in this, the age of poll driven
policy, it is likely that governments will be encouraged to act and when they do, the
remedies will be sharper and more punitive. Far better for media organisations to
negotiate now around the Commission's sensible and moderate proposals than to wait
for the counter punch which has to come."

The fist quote from the introduction gives Mr Keatings historical context.

`The press is overstepping in every direction the obvious bounds of propriety and of
decency. Gossip is no longer the resource of the idle and of the vicious, but has
become a trade, which is pursued with industry as well as effrontery. To satisfy a
prurient taste, the details of sexual relations are spread broadcast in the columns of
the daily papers. To occupy the indolent, column upon column is filled with idle
gossip, which can only be procured by intrusion upon the domestic circle. ...In this,
as in other branches of commerce, the supply creates the demand. Each crop of
unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion
to its circulation, results in the lowering of social standards and of morality. Even
gossip apparently harmless, when widely and persistently circulated, is potent for
evil. It both belittles and perverts. It belittles by inverting the relative importance of
things, thus dwarfing the thoughts and aspirations of a people. When personal gossip
attains the dignity of print, and crowds the space available for matters of real interest
to the community, what wonder that the ignorant and thoughtless mistake its relative
importance.' 1

The Privacy Imperative in the Information Age `Free for All'

Address by Hon PJ Keating
The Centre for Advanced Journalism
University of Melbourne
4 August 2010
The final paragraph of this speech may perhaps serve well here as a summary.

"To date, governments have been pretty wary about meddling with the media. But
even wary ones will pick up the public disquiet. And in this, the age of poll driven
policy, it is likely that governments will be encouraged to act and when they do, the
remedies will be sharper and more punitive. Far better for media organisations to
negotiate now around the Commission's sensible and moderate proposals than to wait
for the counter punch which has to come."

The fist quote from the introduction gives Mr Keatings historical context.

`The press is overstepping in every direction the obvious bounds of propriety and of
decency. Gossip is no longer the resource of the idle and of the vicious, but has
become a trade, which is pursued with industry as well as effrontery. To satisfy a
prurient taste, the details of sexual relations are spread broadcast in the columns of
the daily papers. To occupy the indolent, column upon column is filled with idle
gossip, which can only be procured by intrusion upon the domestic circle. ...In this,
as in other branches of commerce, the supply creates the demand. Each crop of
unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion
to its circulation, results in the lowering of social standards and of morality. Even
gossip apparently harmless, when widely and persistently circulated, is potent for
evil. It both belittles and perverts. It belittles by inverting the relative importance of
things, thus dwarfing the thoughts and aspirations of a people. When personal gossip
attains the dignity of print, and crowds the space available for matters of real interest
to the community, what wonder that the ignorant and thoughtless mistake its relative
importance.' 1

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Published by: Peter W Gossner on Aug 04, 2010
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10/27/2010

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 The Privacy Imperative in the Information Age ‘Free for All’Address by Hon PJ KeatingThe Centre for Advanced JournalismUniversity of Melbourne4 August 2010
 EMBARGOED AGAINST DELIVERY 6PM 4 AUGUST 2010
‘The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but hasbecome a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste, the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idlegossip, which can only be procured by intrusion upon the domestic circle. …In this,as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportionto its circulation, results in the lowering of social standards and of morality. Evengossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossipattains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relativeimportance.’
1
 
Some of that language is a give away - that it wasn’t written by me, or writtenyesterday. But the content is highly relevant to a discussion about privacy and themedia, as a trip to the local newsagent, or time spent in front of the television, oronline will quickly affirm.The quote is from
The Right to Privacy
by Boston lawyers Samuel Warren and LouisBrandeis, published in the
 Harvard Law Review
in 1890, perhaps the most famousattempt at a definition of privacy.Warren and Brandeis wrote about the ‘right of the individual to be let alone’, a rightthey put alongside ‘the right not be assaulted or beaten, the right not be imprisoned,the right not to be maliciously prosecuted, the right not to be defamed.’ They of course acknowledged that the right to be let alone was not absolute, and must onoccasion give way to a higher or general public interest.
1
S Warren and L Brandeis,
The Right to Privacy
(1890) 4
 Harvard Law Review
1931
 
However, they said:
The design of the law must be to protect those persons with whose affairs thecommunity has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever; their position or station, from having matters which they may properly prefer to keep private, made publicagainst their will. It is the unwarranted invasion of individual privacy which isreprehended, and to be, so far as possible, prevented 
.’Warren was said to have been prompted to write after a newspaper published theguest list of an ‘A’ list dinner party he hosted in Boston. Brandeis went on to becomea justice of the Supreme Court.Both writers would turn in their respective graves at developments in the 120 yearssince. Whole industries now revolve around so called celebrity, fame, rumour, andgossip; often more correctly straight fiction which is published these days, often bymedia organisations. These organisations proclaim the importance of free speech, inthe dissemination of news, but clearly are more at home in the entertainment business.The Warren and Brandeis concept of privacy strongly influenced the development of the law in the US and elsewhere, although as others have pointed out, ‘the right to belet alone’ as a bald statement is meaningless (a person engaged in criminal activitieshas no such right), and is difficult to distinguish from other legal concepts, such asassault, nuisance and interference with bodily integrity.
2
 Privacy has been enshrined as an internationally recognised human right in the
Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights
. And Australia is a party to both. Article 17 of the
Covenant 
states:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.2. Everyone has the right to the protection of the law against such interference or attacks.
Freedom of expression is also an internationally recognised human right in Article 19of the Covenant.These rights are not absolute, sometimes conflict, and often need to be balanced andreconciled. Importantly, free speech means freedom governed by Law.
(James vCommonwealth (1936) 55 CLR, 56)
 Privacy in a broad sense is under attack these days on a range of fronts. Electronicsurveillance, terrorism laws, growing police powers, business practices associatedwith information mining and marketing, and new technologies.
2
NSWLRC
Consultation Paper on Invasion of Privacy
2
 
 And the battle Warren and Brandeis fought, against the evil of gossip, has been welland truly lost with the passage of time.However the right to what I might call privacy, remains an issue; particularly where todraw the line between freedom of expression and any remaining right an individualhas to have some control over the gathering and publication of information aboutpersonal aspects of their life. And what can or should be done when that line iscrossed.I take issue with and repudiate those who assert that privacy in modern times is deadand, that we should get over it. And with those who claim the current framework within which the media deals with privacy issues and concerns is effective and workswell. It is of course, ineffective and works, in the main, to the benefit of mediaorganisations.I also want to lend support to the case made strongly and convincingly in two LawReform Commission reports that you won’t see widely reported or subject toobjective analysis in the media: that the law should provide recourse, in the event of an unwarranted serious breach of an individual’s privacy by the media - or anyoneelse for that matter.These issues are topical owing to obvious examples of questionable calls aboutbalancing privacy and freedom of expression. They are there for all to see. Someleaders of the industry and the profession dismiss errors as unfortunate, inevitable andrare, and claim a strong and continuing commitment to ethics and values that includerespect for privacy. I know many good editors and journalists struggle with theseissues, conscious of their responsibility to get it right, and the harmful effect of getting it wrong.But many, like me have the impression that ‘the tone at the top’ and the practice of  journalism in many media organisations is driven by other more pressing values. Of course it’s hard to generalise, but Margaret Simons, who authored
The Content  Makers
suggests, and research by Denis Muller for his PhD at this university in 2005and with 27 years’ experience in the profession confirmed, ethics does not enjoy ahigh profile in the newsroom. Indeed, many of those involved apparently have littlemore than a passing knowledge of the issues. Ethical considerations can complicatelife for those, keen to get the story. Muller described it as a ‘sorry picture.’
3
 Or, as Professor Mark Pearson puts it:‘The reality is that editors and news directors are motivated as much by circulationand ratings as by a public duty to deliver the news…. There may be a range of profitsor costs resulting from a story involving a privacy intrusion, including gained or lostcirculation or ratings, advertising, syndication rights corporate reputations, legaldamages and court or regulator costs. ….there is little doubt journalists go through
3
Simons
The Content Makers
, 2007; Muller
 Media Accountability in a Liberal Democracy
- unpublished PhD thesis3

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