YES, we inherited the rule of law and parliamentary democracy from Britain. But we did not inherit its newspaper culture. So when politicians call for new rights to privacy and inquiries into the media based upon what has happened in Britain, we should be wary.
Britain is a small island and since the mid-19th century has had an excellent rail network. A newspaper printed in London overnight could be on almost every breakfast table in the nation the next day.
As a result, national papers were set up, each aiming for a market share, not based on geographic area but rather on political persuasion and level of education. The Guardian is educated left; The Telegraph educated right; the Sun less educated right; the Mirror less educated left; and so on. With The Times, The Independent, the Mail and the Express, there are eight national dailies in Britain and a swag of Sundays.
Most compete mercilessly for commuter impulse buyers using large posters with enticing words and large Page 1 headlines on display in the news ranks. The newspapers make large profits from extra circulation because the papers are fairly thin, lacking the large classified ad content of the regional papers, so the extra copies do not cost much to produce, but each extra sold converts nearly all the cover price to profit.
So the incentive is to exaggerate, bribe, lie, cheat or do anything to get the story that will get the circulation.
Not so in Australia. Distance made the development of national papers impossible until the late 1960s and by then state-capital-newspaper domination had set in.
So Australian papers had to try to appeal to all (left, right, centre and more and less well-educated). They had higher subscription rates and got little from impulse buying by commuters.
Nearly all of tomorrow’s papers are already sold by subscription or habit buying. There is no need to exaggerate, lie or cheat.
In short, Australia’s geography has resulted in a different economic model for newspapers which resulted in a different media culture.
In Britain it is worth risking a costly defamation action or paying for stories if that can be underwritten by profits from extra circulation. There is little extra circulation to be had in Australia. There are only one or two newspapers to chose from in most markets – not nine as in Britain – so there is nowhere much to steal circulation from.
The incentives to pay for stories, to exaggerate, defame, bribe or to pay people to hack phones are almost non-existent in Australia.
Further, far from a cosy pay-for-tips media-police relationship, as in Britain, police-media relations in Australia are dogged by police media machines.
It follows that the need for regulatory change in Australia is lower. There are better ways to deal with breaches of privacy than creating a new right of privacy with damages as a remedy.
The damage done by breach of privacy is not from the act of tapping into someone’s phone messages, gathering personal information or even photographing a person in embarrassing situations. Rather the damage is done upon the wider publication of the material obtained.
The criminal law in Australia deals with misuse of telecommunications devices, and until 2006 there was a legal remedy against the wider dissemination of the material obtained – damages in defamation.
Again, the difference between the British and Australian media regimes is instructive.
In Britain the common law has long provided that truth of itself is a total defence for the publication of defamatory material. It has meant that the publication of any scuttlebutt – however trivial, old, embarrassing or privacy-invading – could not be sued upon if the publisher could prove truth.
In Australia, mindful of people’s convict pasts, half of the jurisdictions (those with convict pasts, especially NSW) required that merely proving the truth of what was published was not enough. You had to also prove a public-interest element. Its precise wording varied, but the upshot was that the publication of true, but purely prurient or titillating, was not protected unless the publisher could also prove it was in the broader public interest.
However, in 2006 the uniform defamation law came into force and the truth-alone states, particularly Victoria, objected to retaining a public-interest requirement. So, in the interests of uniformity, it was discarded.
The new law had a great many benefits, but discarding the public-interest test was not one of them. Serious journalists are not interested in digging up titillating rubbish which does not forward the public debate. The public-interest requirement put a brake on this sort of journalism in Australia. The media culture was such that the “public-interest” requirement also influenced journalism in the truth-alone states.
So, rather than create a whole new right of privacy which might have all sorts of unintended consequences, it would be easier to insert a public interest test in the defamation law.
The result would be that if a publisher published defamatory material about someone – material that lowered them in the eyes or right-thinking people – it would not be enough to merely prove the truth of matter to escape an award of damages. The publisher would have to also show that its publication was in the public interest or the matter related to a matter of public interest.
So, if you dug up a 20-year old shop-lifting conviction against a politician or found out that some ordinary private person was having an affair, you could not publish it with impunity unless you could show some public interest, which would be difficult in these examples.
The beauty of doing it this way is that there is a lot of well-trodden law on this and past experience suggests it has dampened media excess in Australia, compared to Britain where truth alone has always been a defence to defamation proceedings.
Ordinary people are scared of privacy invasions by media, even if they are unlikely because ordinary people are not very newsworthy. The public-interest test would ensure they were left alone, while allowing worthwhile reporting.
This, of course, will not fix other media sins — proprietor-instigated bias and distortion caused by reporting the unusual with such prominence that it engenders unjustified fear.
Maybe the former will wane. The losing of Rupert Murdoch’s grip on the News media empire might result in its journalists being less slavish to slanting stories to what they might think is Rupert’s view of the world. But it will take a while to unwind the biases that have built up in those organisations.
As to the second distortion, it will only be overcome by a better-educated, more sceptical readership — one more versed in the scientific method, critical thinking and with some idea of probability theory. Fat chance.
In the meantime, let’s not visit the sins of the News of the World upon the whole of the Australian media.
CRISPIN HULL
This article first appeared in The Canberra Times on 23 July 2011.
With respect, Crispin, the issue is bigger than just newspapers. In Australia television reporters are probably the worst offenders and this is exacerbated by cross-media ownership where the print and electronic arms are used in tandem to pursue someone.
A right to sue in tort for invasion of privacy would presumably be developed into a flexible set of rules by the courts which might be a better result than legislation hastily introduced by politicians in response to some scandal of the day.
Another issue which the UK incident raises is the failure of press self-regulation. All professions these days need to unequivocally root out the crooks and cowboys from their own ranks to avoid the likelihood of government regulation. Waiting until something goes really bad or simply promulgating standards which are not enforced is too risky.
Somewhat related to that last point is the aping of the commercial media by Australia’s public broadcaster to the extent that the daily “news” presented by the two sectors is generally indistinguishable. It suggests to me that, despite the disclaimers from the profession, journalists are responding to pressure from managements who in turn are responding to financial pressures exerted by outside interests.