Ban the paparazzi?

Another trivial issue with a serious edge that I’ve been considering lately arises from the ongoing furore over Nicole Kidman’s obtaining of an Apprehended Violence Order against a couple of paparazzi in the wake of her Sydney house being bugged and an alleged high speed car pursuit (shades of Princess Di).

The Australian predictably condemned Kidman and editorialised to the effect that the whole concept of an AVO in such circumstances was outrageous:

The right to privacy of ordinary Australians is well protected, and there is no need for yet more barriers to the free flow of information to suit the self-important, the precious or film stars irritated by unwanted attention.

But is freedom of speech an absolute value, or might aspects of it sometimes properly yield to other rights like privacy? I can’t for the life of me see how the quality or freedom of Australian society would be adversely affected even if there was a complete statutory ban on the media “staking out” any person’s private home in the hope of getting unguarded photos, video footage or a coerced comment.

The phenomenon of people being harrassed and intimidated for photos or interviews is by no means limited to “professional” celebrities like Kidman. Victims of serious crime are also commonly harrassed too, as I discussed here in the context of Joanne Lees and the Falconio murder case. Arguably unlike filmstars like Kidman, crime victims have in no sense voluntarily submitted themselves to the tender mercies of the press and forfeited any right to privacy. But even for movie and pop stars, politicians etc, can it really be said that they’re “fair game” for all purposes and can legitimately have the privacy of their home invaded at any time just because they deliberately court publicity for their professional activities?

Any legislation banning the “staking out” of private homes would probably need some clearly defined exceptions where a defence could be made out, because it’s conceivable that there might be some very rare particular circumstances where the public interest (not just prurient commercialism) could be significantly adversely affected by such restrictions. But it’s worth considering, I reckon. What do others think?

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Alan
Alan
2021 years ago

How would you treat situations like pedophile expulson in Murgon yesterday?

C.L.
C.L.
2021 years ago

Ken: Respectfully, my post in the above thread was picking up on the fun theme of anal-retentive linking and malicious mis-quoting. It was really meant as an olive branch to Nabakov.

And, for the record, I’m not ashamed of the shock-tactic I used vis-a-vis racism at Dunlop’s. He uses similar tactics himself sometimes, as probably all bloggers do – whether or not it’s always the best tactic in the circumstances. I think Tim has something up even now on Condi Rice as Bush’s “other wife.” (Somewhat Jeffersonian).

Tried to email you to assure you I have no desire to derail your threads but I assume the address is not actually functional. Delete this if you wish. If you leave it, I won’t respond tit-for-tat with Nab who’s free to say whatever he likes.

Nabakov
Nabakov
2021 years ago

“He uses similar tactics himself sometimes”

Link please.

“I think Tim has something up even now on Condi Rice as Bush’s “other wife.” (Somewhat Jeffersonian).”

That’s a rather paranoid interpretation. Yes, elements of that vibe are in the air, but they’re being raised by extremists on all sides. And the reason the public air can support and encourage such disgusting farts is because people like you CL (and yes, crapheads on the ultra left too) set out to poison it a bit more.

I’ve given up on the Evil Pees of this world because it’s now clear their comments are driven first and foremost by personal issues they’re still wrestling with.

But I expected better of you CL. However, accusing Timlop of KKK style racism or calling Tim Lambert a monomancial Bush hater really is sinking to a level beyond sturdy partisanship or duelling ideologies.

So no, I don’t want an olive branch from someone who’s implied I’m a member of a murderous racist cult, anymore than you’d want some dove delivered vegetation from someone who’s called you a Nazi because you defended a BusHitler initiative.

Yes I’m a sharp-tongued, foul-mouthed harpy at times but if you look at any attack comment I’ve made, it’s always gone for the jugular of the logic of the argument – and personalities and personal beliefs were only raised insofar as I thought they influenced logical fallacies in my interlocuter’s arguement.

I really, seriously, really wish I could say the same about you. Cos I do love a good barney on it’s merits.

Now I have to go away and polish Victoria’s bid for the SEA 4000 Air Warfare Destroyer contract. Wish me luck – there’s thousands of jobs riding on it, along with our national security. (Our post-pitch punchline over drinkies. “Of course you heard SA’s bid loud and clear. Just like their subs.”

jen
jen
2021 years ago

Leave our Nicole alone and beatup upon the houses of pedophiles.

….’hurry up and finish I want to …’ ahhh I hear the dulcet tones of the one I love wanting me outoff the computer.
I just got here!
Nab and CL shutup!.
Nab you should know better you’re very funny and CL I’m disappointed – obviously I was sadly mistaken as to your character. Now Parish wants me off the computer so he can shut you up, but shit fellas I finally finished cleaning the puppy jail, doing the washing and hanging it out, I’m back from the gym, have cooked the dinner, cleaned daughters bedroom, loaned ex-husband 20 bucks, got caught in the rain, had a swim in the storm, cleaned out the kitchen bin and got called a ‘little viper, shit, all I want is a little space on the computer alone! Please undertake, immediately, a cessation of all hostilities.

jen
jen
2021 years ago

And so back to what I was thinking about lurking paparazzi and the law. It’s like pool fences. We don’t need them. And we don’t need anymore laws about whose business we can and can’t peer into and affect. If you hang your filthy laundry in someones face then they will want you out(Murgon). If you commodify yourself in the general community then people will expect a piece of you (Kidman). If you are jo or jen average it is very likely you’ll be left alone to enjoy the infotainment while you eat your tea.

David Tiley
2021 years ago

Hey, Jen is back too!
Great!

Gaby
Gaby
2021 years ago

“The right to privacy of ordinary Australians is well protected….” You have to be joking! Which protections would they be?

Of course we need a tort of privacy, i.e., embodying a right to be “left alone”. Its content would have to be balanced against other competing rights such as free speech, freedom of the press etc.

The US has such a tort deriving from a famous law journal article of Warren and Brandeis.

This is different from the privacy laws which we now have that basically regulate information privacy and specifically “personal information”.

The Australian Law Reform Commission did a lot of work on such a tort in the ’80’s as part of its defamation reference and recommended the creation of such a tort as well as uniform national defamation legislation, I think . It may have even suggested a draft. Alex Castles, one of my lecturers, dissented on the recommendations of the report as I think he wanted something stronger on privacy.

South Australia had a go at enacting a tort in the late ’80’s or early ’90’s when Chris Sumner was the A-G. It essentially failed in the Leg Council after a concerted media campaign on the basis of concerns about the risk of trammeling free speech and press freedom.

Note also the qualifier “ordinary”. So “non-” or “extra-” ordinary are not adequately protected? It is exactly this sort of situation that a “public figure” exception to a privacy tort seeks to cover.

In passing, “La Dolce Vita” is a magnificent film. I recently re-watched it. In particular, the opening 20 minutes or so are stunning as film and also in using film narratively. And not to forget the already intrusive behaviour of Paparazzo.

Ken Parish
Ken Parish
2021 years ago

Thanks Gaby. For anyone who’s interested, the ALRC’s 1983 report on privacy can be found at http://www.austlii.edu.au/au/other/alrc/publications/reports/22/ . As far as I can see from a fairly quick skim, it seemed to concentrate on information privacy and secret surveillance (including by media), and didn’t deal with more overt breaches of privacy like media/paparazzi surrounding peoples’ houses etc.

Given that focus, it perhaps isn’t surprising that the Commission concluded that there was no need for a new statutory tort of breach of privacy. It was enough, they concluded, to tweak existing statutory protections and equitable doctrines of breach of confidence. I disagree.

I also disagree with Jen’s position that politicians, celebrities (and presumably crime victims) are fair game for media attention, however intrusive, because they have “commodified themselves”. That can’t meaningfully be said at all about crime victims, and even in relation to people who have voluntarily submitted themselves to public scrutiny, it doesn’t follow logically that they must be taken to have surrendered any right to privacy for all purposes.

Many people have “public” aspects to their lives, areas where their career or interests require them to interact with the media. It’s certainly true of sportsmen and even academics, spokespeople for voluntary community groups etc, sometimes even teachers. Does the fact that we voluntarily submit ourselves to media publicity for specific purposes mean that the media is entitled to treat us as having forfeited all right to personal privacy thereafter? Jen’s attitude smacks of “I’m alright Jack (or Nicole), up yours”.

And while I’m at it, I think convicted pedophiles who have served their time in prison are also entitled to privacy protection, albeit balanced against the community’s right to protection of children in case their predilection re-emerges. The image of that poor old bastard in Queensland being hunted from town to town, because self-serving politicians and media keep disclosing his address and sooling the local halfwits onto him, is a disturbing one. The bloke has to live somewhere. I certainly agree with the maintenance of a national child sex offenders register, and an efficient system to ensure that (a) local police are notifie when a pedophile moves into their area, so they can keep an eye on him; and (b) a foolproof system for vetting applicants for jobs working with children, to ensure convicted (or known) pedophiles aren’t employed in high risk areas. But I DON’T believe that the general community (including politicians and media) has a right to disclosure of pedophiles’ addresses. It simply encourges the sort of mindless, distasteful, pointless vigilante activity we’ve seen in Queensland over the last few days.

Gaby
Gaby
2021 years ago

Basically agree with you Ken.

This ALRC reference on “Unfair Publication: defamation and privacy” is also relevant. It was the one I was actually thinking of and it recommended a “tort of unfair publication”.

ALRC 11 also proposed “special protections
for privacy were proposed in the particular case of publication of ‘private facts'” (from ALRC 22, xliii).

This would cover most of the sort of issues which you raise and which are of major concern.

Of course that one is a public figure doesn’t entail that all rights to privacy have been thereby surrendered. Most cases of the assertion of a “right” entail the weighing and balancing of that right or interest against competing rights or interests.

David Tiley
2021 years ago

In some respects the paparazzi are just the pointy end of something more deeply awful.

I remember when the then head of Film Victoria was accused in parliament and the Shun of credit card improprieties, which were subsequently found to be not true. The attack was highly political, on someone who really had a mid-range public service job which does not command huge salaries.

But the effect was devastating. Journos with cameras baying at the front gate, calling out before breakfast.. etc etc. An attack she experienced as vicious and humiliating and did her harm. That’s more than paparazzi taking photos of celebrities – that is the daily work of television crews making ordinary people’s lives a misery.

Behind that is the judgemental witch hunting of the media. Can you imagine waking up in the morning to think that ten million people have just read about your private conversation about wanting to be a tampon? To know that these people have been told you are a dickhead?

The trouble is, the anthropological processes of social control – watch and criticise, heroicise or shun – resonate very deeply in all of us. To have this amplified like that must be just agonising.

Now we are taking it a stage further because anyone can be a paparazzi. Whip out the phone cam and off you go. Is that Nicole without her makeup? I think I might make a few bob. Has her dress fluttered up? I think I will make a lot more bobs.

Universally the power of public scrutiny is going up and up, and we can’t defend ourselves. Walk down the road with your mobile phone, hit a post, fall over, and you too can be all over the internet as a public clown. It is a form of violence.

In the perfect world, there would be a tort about persecution.

(At the same time, the paparazzi game is given new power by exclusivity deals. Sell your wedding to New Idea, and the helicopter overhead is what you deserve).

tim g
tim g
2021 years ago

Paparazzi contend with single-cell paramecium for the title of lowest form of life known to science.

That said, it seems only fair that someone who helped to inflict “Eyes Wide Shut” and “Stepford Wives” on a unsuspecting public should have to pay some price. That someone who participated in these travesties should get to live a life of unspoiled ease is at odds with the concept of natural justice.

And, of course, the other side of this coin is the large number of celebrities who pay publicists to get their name and image in to the tabloid media. One is reminded of a proverb concerned with the riding of tigers.

Nicholas Gruen
2021 years ago

I’m with Ken. The issue for me is that the people who are victim of the paparazzi are treated as if they have foregone the right to human dignity. Just as hanging ia murderer degrades all of those on whose behalf the act is done, so treating Nicole or Dianna as objects withough any right to human dignity degrades everyone involved. It bothers me that people bring their feelings for or against such people into the equation. Because someone is, however temporarily “news value” we behave as if there is a right to stake out their house and get pictures of them arguing with their spouse, kids or whatever. That is completely outrageous. Someone did it to Ray Martin for a stunt in the wake of the Paxton affair. I think he called the cops or got security guards in.

The fact that some invite it (or rather go for the many benefits they see in fame) does not stop an act so radically berefet of respect for someone being degrading. Obviously its aggravated disrespect if they haven’t done anything to bring themselves to the paparazzi’s attention.

But degrading people is not justifiable – even if you don’t like their movies, or their taste, or you think its funny. It often is funny – if you put asside the degradation involved. I don’t think people have a right to stake out my house, or Kylie’s, or Warnie’s because they fancy someone might like to see the pickies. It is harrassment and stalking. What’s wrong with the law penalising such behaviour, or at the very least giving those injured by it a remedy against the perpetrator?