Even presidents need privacy, we were reminded by President Clinton the other day. Professor Thomas Nagel of the New York University was quoted as saying, “”Each of our inner lives is such a jungle of thoughts, feelings, fantasies and impulses that civilisation would be impossible if we expressed them all, or if we could all read each other’s minds. Just as social life would be impossible if we expressed all our lustful, aggressive, greedy, anxious or self-obsessed feelings in ordinary public encounters, so would inner life be impossible if we tried to become wholly persons whose thoughts, feelings and private behaviour could be safely exposed to public view.”
Even Clinton, who is a public figure who sought public office and therefore the publicity that comes with it, should have some right to keep private those things which do not impinge on his public office.
But the law, at least in Australia, does not recognise this. There is no general right of privacy.
There is, of course, a great practical protection. Too few people are interested in John Nobody’s adultery. Public prurience only arises with people we know. So there is a village pump interest in people who live nearby or with whom we work and a media interest in the people we “know” indirectly because they are famous.
The major legal protection is the law of defamation. But it is so complex and expensive that it is only open to the rich, as ACT Attorney-General Gary Humphries pointed out this week. Further, it does not protect privacy per se, but only awards large damages for publications that tend to lower the reputation of people in the estimation of right-thinking people.
There is plenty wrong with the defamation law. The lawyers who run it usually get most of the money. The large damages and costs get passed on to the readers and advertisers. The remedy comes years after publication, and damages rather than corrections and apologies are not the right remedy for loss of reputation. The law is so complex and the lawyers so expensive that ordinary punters cannot risk it, so have no remedy against bad journalism.
Most of the problem revolves around the fact that, with few exceptions, the only effective defence against a defamation action is to prove the truth of the publication. That may sound reasonable, but proving truth in our courts is a very long and expensive process. Look at the hospital implosion, for example. The inquiry has run for nearly 100 sitting days. The costs of such truth-finding hearings forces media organisations not to publish, so the public misses out.
A better system would be to focus on whether the journalists behaved professionally. Did they fairly publish all sides? Did they behave honestly?
But despite its defects, most ordinary readers would not like to see defamation law eased for publishers because they see it — however misguidedly — as the only weapon against bad or intrusive journalism. They fear the intrusive television camera in their private lives, however unlikely the event. They fear media excess.
In this climate, Humphries has quite courageously proposed a series of reforms of defamation law. Most of them are quite sensible.
He only obliquely mentioned a right to privacy as a possible reform down the track, but he could be on to something here, especially if, as he hinted, procedures would be quick and inexpensive.
If people thought there was a quick and effective remedy to the excesses of the media, they might be keener to agree to reform of the defamation laws. They might think that, as Humphries has proposed, that damages should be limited unless you can actually prove monetary loss. They might agree to a wider range of material being publishable by the media without the onus of proving the substance behind it being true — such as reports of medical boards or government bodies. They might agree with Humphries that it is absurd to allow people to sue six years after publication and demand that they sue within six months if they are going to.
Humpries has not proposed it, but he might think about dividing defamation into serious matters (which accuse people of criminal conduct) and lesser defamations (all the rest). In the case of the former, the publisher should have to prove truth of the assertions, but in the case of the latter only have to show that the journalist behaved reasonably and published a right of reply.
In the late 1970s, media organisations opposed an Australian Law reform Commission proposal that a right of privacy should be available. It was not very smart. I think it would be a worthwhile change provided defamation law were changed at the same time. Large damages are an absurd remedy which only attracts lawyers, costs and delays. Small damages with stern court-ordered corrections and apologies which would shame journalists and media organisations into improving their conduct would be more effective.
Also, if courts ordered corrections, they would begin to understand the difficulties of publication. They would have to wonder whether the hand-on-heart denial that so many defamation plaintiffs eagerly give is really true.
(“”I did not have sexual relations with that woman.”) They might even insist plaintiffs swear their denials on oath on pain of perjury convictions or at least that plaintiffs pay their damages and costs back if their denials later prove false — the Courier Mail never got its money back from all those ministers who sued in the 1970s, for example.