I notice that a UK MP has just “outed” soccer player Ryan Giggs as the prominent sportsman who had a well-publicised extra-marital affair. His identity was (and remains) the subject of a “super-injunction” issued by the UK High Court and based on rights to privacy in the Human Rights Act 1998.
This adds an interesting additional dimension to my recent post on privacy in a cyber-glasshouse world (which attracted almost no comment box debate for reasons I’m still at a loss to understand). My own view is that there is a distinct difference between the “public interest and stuff that is interesting to the public” (as Richard Ackland succinctly phrases it) from a privacy viewpoint, so that privacy should be protected by the law where the public’s interest in knowing stuff is overwhelmingly prurient. Where that is the case I don’t see that the public interest in freedom of speech has much force, irrespective of the degree of fame of the subject of salacious information. The fact that a person is famous does not mean they forfeit all moral claim to personal privacy in my view.
On the other hand, the “outing” of Ryan Giggs suggests that, whatever we might think as individuals about whether a right to privacy should exist, the borderless and almost universal nature of the Internet means that a court in any given country is unlikely to be able effectively or for very long to prevent disclosure of information about the identity of a person about whom salacious rumours are circulating. In one sense I suppose that’s not very different from the social situation in western societies before the urbanisation of the 18th and 19th centuries. Most people lived in villages and knew everyone else’s business anyway. Rights to privacy in that sense are just an artefact of a short period of history when the practical anonymity conferred by large urban agglomerations of people had not yet been rendered ineffective by Wikileaks, Twitter, blogs and Facebook and the underlying Internet architecture that makes it almost impossible for the courts of a single country to keep information confidential.
Nevertheless I can’t help thinking that this seemingly irreversible loss of privacy is not really a case for rejoicing, except perhaps for tabloid media proprietors like Rupert Murdoch.
“My own view is that there is a distinct difference between the “public interest and stuff that is interesting to the public” (as Richard Ackland succinctly phrases it) from a privacy viewpoint …”
Certainly agree, it’s just good manners.
“… so that privacy should be protected by the law where the public’s interest in knowing stuff is overwhelmingly prurient.”
Ahhh, weasel word alert. overwhelmingly prurient? How will you judge that? Surely defamation is enough of a jurisdiction. Also, why should privacy only be protected in the media? As a non-famous person would you not also be concerned if the neighbours spotted you with the Cocker Spanial and let everyone know about it down at the Bowlo?
How did you find out about the cocker spaniel?
Seriously, under current defamation law in Australia truth is a complete defence. Thus neither Ryan Giggs nor any other person (famous or otherwise) can successfully sue for defamation for publication of details about their private lives if those details are factually true. But is it anyone’s legitimate business whether Giggs or anyone else has had an extra-marital affair (except his wife and immediate family, of course)?
You are not the only lawyer today publicly squirming at the masses’ taste for salacious prying…
LE thinks it is about responsibility and communication.
I think that privacy sucks, anyway. In ‘the old days’ decent people could be counted on to act as if God was watching, that disadvantages the honest, of course, so I much prefer the current regime where the only way to have any privacy is to not be worth looking up. If you are famous and don’t to be on the front page for cheating, don’t cheat.
Maybe I am speaking from a false sense of security given the considerable privacy that such a test affords me…
Patrick
It’s understandable that you focus on sexual impropriety because that’s the most common topic that interests the MSM and the bogan masses But for famous people especially, invasions of their personal privacy take place on all sorts of levels and for all sort of reasons. How would you like media/paparazzi staking you out and photographing your every move whenever you step outside your house? Publishing unflattering photos of your wife if she’s put on a couple of kilos, accompanied by a story speculating that she might be pregnant? Publishing photos of you walking down the street with a young woman accompanied by speculation that you might be having an affair (when in fact it’s your daughter – something that happened to some celebrity quite recently) Etc etc? Taking photos of you in the baggy tracky daks and purple ug boots taking out the garbage and publishing them with snarky remarks about your fashion sense?
These things tend not to happen to the non-famous, except if they become momentarily notorious for some reason. But why should the fact that one aspect of a person’s life has attracted public interest and attention mean that it should be regarded as totally fair game to subject them to a “goldfish bowl” existence in every aspect of their lives just for the titillation of the bogan masses and the enrichment of Rupert Murdoch et al?
Ken, yes, being a Qlder I keep thinking there is a public benefit requirement on top of the truth. I still agree with everything you say about the awfulness of it, but I think there is a sensible limit to regulation and a privacy law will be a whole new world of hair-splitting.
pedro
Yes, and of course that’s the reason why they removed the “public benefit” element for the uniform Defamation Act enacted in 2006. The need for a defendant to prove not only truth but “public benefit” in disclosing it was a boon to smart lawyers acting for wealthy litigants (often politicians) keen on winning a new plunge pool. However, as my previous post argued, it seems to me that the ALRC’s proposed privacy law reforms would strike a mostly appropriate balance between privacy and free speech. I think the issues are finer-grained than just a crude choice between personal privacy on the one hand and free speech unrestrained by anything but a truth requirement in defamation law.
Hello Ken, I’m going to write a detailed post on this issue shortly – yes it is complicated. I agree with your assessment of the ALRC’s proposed privacy laws, of which I am a fan!
[…] Parish at Club Troppo has a good summary of the legal and practical issues involved with these kind of cases: My own view is that there is a distinct difference between the […]
Finally, as promised, my post.