Tag Archives: media history

November 24, 2015 · 8:41 am

Privacy as a value for democratic societies – Beate Roessler #mediaiplaw

It is only in the past twenty or so years that the societal value of privacy has become of interest and still more recently that there has been a particular focus on the value of privacy for democracies, University of Amsterdam Professor of Ethics Beate Roessler proposed to the 2015 IP and Media Law Conference at the University of Melbourne Law School today (November 24).

“Privacy protection is necessary not only for individual freedom and autonomy but also for the functioning of the democratic society,” she said.

Professor Beate Roessler from the University of Amsterdam

Beate Roessler is Professor of Ethics at the University of Amsterdam and chair of the Capacity group of Philosophy and Public Affairs. She also chairs its Department of Philosophy. In her keynote address she explored her work examining the difficulty of keeping up privacy standards on social network sites and the role of anonymity in social/political relations and the consequences of the loss of that anonymity.

Professor Roessler pointed to statements by Edward Snowden in 2013 and 2015 as an interesting focus upon the democratic value of privacy, where he had justified his revelations partly upon the contest between the state’s surveillance and the individual citizen’s privacy.

She listed three steps in the conceptualisation of privacy – firstly, the classic conception of Warren and Brandeis as the right to be let alone, the fundamental idea being that the right to freedom is protected by, and dependent upon, the right to privacy.

The second step after Warren and Brandeis was the ‘social dimensions of privacy’.

“The social norms which regulate privacy enable us to play different roles,” she said. “They enable us to play these different roles and have these different relations.

“If I started telling you now about my grandmother I would violate the demand of the role I am playing here. It is not just my autonomy, but it is also the norm itself that regulates our relations.

“Privacy is also a social practice, meaning the norms protect individual privacy and the right is part of the practice.

“Also respect for the privacy of other people is part of the practice. It is part of the deal of the social norms of privacy. The right to privacy and respect is always socially contextualised.

“The idea that we are democratic subjects is also the idea that our privacy is protected.”

She explained that the value of privacy has for the most part of the last hundred years been conceived of in purely individual terms: the protection of privacy being important or even constitutive for the protection of individual freedom and autonomy.

The third step after Warren and Brandeis was the significance of privacy for democracy.

“I want to argue that it is precisely this social and democratic value of privacy which is at stake in the digitized society,” she proposed.

She said events in Paris this month had not changed her mind about the value of privacy in democracy, but did make the issues more challenging to address publicly.

“Political participation is dependent on the protection of privacy,” she said.

The loss of privacy affects all social and political relations between people, she argued.

Although the right to privacy remains important as an individual right, the Snowden revelations have made clear that violations of privacy have immediate impact on our social lives as well as on liberal democracies.

Privacy is under pressure in the digitized society through state surveillance, consumer surveillance, via the ‘internet of things’, and through social network sites with the voluntary sharing of personal data including the self-tracking devices and the quantification of self movement.

“New technologies do have an impact on our relationships, for better or for worse.

“The right idea is to think about what does privacy do in our society, and if that changes how far can we go with that change?”

She used privacy settings as an example of the status of privacy in society: “Standard preferences are public, but privacy is an extra task or an achievement.”

“Our personal data are analysed by companies that are collecting, storing and mining as the default. It is what is happening if we do nothing.

“Forgetting, deleting is an extra task, an achievement.”

Anonymity was important to privacy, but as Snowden revealed our anonymity is not protected any longer.

“Lack of anonymity can cause loss of freedom, harmful for the individual and democratic society,” she said.

She pointed to the use of drones as the next “massive threat”.

She said arguments against anonymity such as accountability and public security did not allow for the fact that neither had increased markedly in recent years with large scale surveillance.

“The threat of a life without the protection of privacy involves the transformation of social and political relations,” she concluded.

“If we have to assume there is no privacy protection any longer in our social relations it means our social relations tend to get homogenized.

“How can I understand myself as a democratic subject if I can’t assume any longer that my privacy is not being protected?

“How do we change and how does society change, when our sense of privacy changes, when we lose the differences in self-presentation, possibilities of political participation, and when we lose the possibilities of control?”

From 2003-2010 Roessler was Socrates-Professor for the Foundations of Humanism at Leiden University. Before, she taught philosophy at the Free University, Berlin, Germany, and at the University of Bremen, Germany. Roessler studied philosophy at Tuebingen, London, Oxford, and Berlin and completed her PhD in 1988 at the Free University Berlin (on theories of meaning in analytic philosophy and hermeneutics). In November and December 2015 she is visiting as a research fellow at University of Melbourne, Melbourne Law School. Her publications include Social Dimensions of Privacy: Interdisciplinary Perspectives (edited with Dorota Mokrosinska, Cambridge: Cambridge University Press 2015) and The Value of Privacy (Polity Press, 2005).

The full conference program is here. Our paper (Pearson, Bennett and Morton) was titled ‘Mental health and the media: a case study in open justice’ (see earlier blog here) and was presented yesterday (November 23).

Those interested in privacy as a topic might also see my timeline of privacy in Australia here.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

Updated: Privacy in Australia – a timeline from colonial capers to racecourse snooping, possum perving and delving drones

By MARK PEARSON Follow @Journlaw

The interplay between the Australian media and privacy laws has always been a struggle between free expression and the ordinary citizen’s desire for privacy. I have developed this timeline to illustrate that tension.

1827: NSW Chief Justice Francis Forbes rejects Governor Ralph Darling’s proposal for legislation licensing the press, stating: “That the press of this Colony is licentious may be readily admitted; but that does not prove the necessity of altering the laws.” (Historical Records of Australia, Series 1, Vol. 13, pp. 290-297)

The extract from the Sydney Gazette in 1830

1830: The Sydney Gazette and New South Wales Advertiser publishes an extract from London’s New Monthly Magazine on the prying nature of the British press compared with its European counterparts, stating: “The foreign journals never break in upon the privacy of domestic life”. But the London newspapers would hound a ‘lady of fashion’ relentlessly: “They trace her from the breakfast table to the Park, from the Park to the dinner-table, from thence to the Opera or the ball, and from her boudoir to her bed. They trace her every where. She may make as many doubles as a hare, but they are all in vain; it is impossible to escape pursuit.”

1847: NSW becomes the first Australian state to add a ‘public benefit’ element to the defence of truth for libel – essentially adding a privacy requirement to defamation law (ALRC Report 11, p. 117)

1882: First identified use of the phrase ‘right to privacy’ in an Australian newspaper. Commenting on a major libel case, the South Australian Weekly Chronicle (22.4.1882, p.5) states: “A contractor having dealings with the Government or with any public body has no right to privacy as far as those dealings go.”

1890: In a landmark Harvard Law Review article, the great US jurist Samuel D. Warren and future Supreme Court Justice Louis D. Brandeis announce a new ‘right to privacy’ in an article by that very name. There is a ripple effect in Australia with several mentions of the term in articles between 1890-1900.

1937: A radio station used a property owner’s land overlooking a racecourse to build a platform from which it broadcast its call of the horse races. The High Court rules the mere overlooking of the land did not constitute an unlawful interference with the racing club’s use of its property. The decision viewed as a rejection of a common law right to privacy: Victoria Park Racing and Recreation Grounds Co. Ltd v. Taylor (1937) 58 CLR 479.

1948: Universal Declaration of Human Rights is proclaimed in Paris. Article 12 provides: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks” (United Nations Universal Declaration of Human Rights, GA. Res 217A(III), UN Doc A/Res/810 (1948).)

1966: The International Covenant on Civil and Political Rights (ICCPR) is proclaimed, protecting privacy at Article 17. (16 December 1966, [1980] ATS 23, entered into force generally on 23 March 1976)

1972: Australia signs the ICCPR.

1979: Australian Law Reform Commission releases its first major report on privacy – Unfair Publication: Defamation and Privacy, ALRC 11. It recommends a person be allowed to sue for damages or an injunction if ‘sensitive private facts’, relating to health, private behaviour, home life, and personal or family relationships, were published about him or her which were likely in all the circumstances to cause distress, annoyance or embarrassment to a person in the position of the individual. Wide defences were proposed allowing publication of personal information if the publication was relevant to the topic of public interest. (pp. 124-125).

1980: Australia ratifies the ICCPR and the Organisation for Economic Co-operation and Development (OECD) expert group led by Australian Justice Michael Kirby issues its Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.

1983: Australian Law Reform Commission releases its Privacy (ALRC Report 22), recommending the establishment of a Privacy Act to establish information privacy principles and the appointment of a Privacy Commissioner.

1984: Australian Journalists’ Association (AJA) revises its 1944 Code of Ethics to include a new clause (9) requiring journalists to “respect private grief and personal privacy and shall have the right to resist compulsion to intrude on them”.

1988: The Privacy Act 1988 is enacted, applying initially only to the protection of personal information in the possession of Australian Government departments and agencies.

1999: Media Entertainment and Arts Alliance (MEAA) issues another revised Code of Ethics preserving the grief and privacy elements in clause 11.

2000: Privacy Act 1988 provisions are extended to larger private sector organisations, and 10 National Privacy Principles (NPPs) are introduced, determining how companies must collect, use and disclose, keep secure, provide access to and correct personal information. Media organisations are exempted from the provisions as long as they ascribe to privacy standards published by their representative bodies.

2001: High Court rejects an argument for a company’s right to privacy after animal liberationists trespass to film the slaughter of possums in a Tasmanian abattoir and someone gives the footage to the ABC, but the court leaves the door open for a possible personal privacy tort: Australian Broadcasting Corporation v. Lenah Game Meats (2001) 208 CLR 199.

2003: A Queensland District Court judge rules the privacy of the former Sunshine Coast mayor Alison Grosse had been invaded by an ex-lover who continued to harass her after their affair had ended. She is awarded $108,000 in damages: Grosse v. Purvis [2003] QDC 151.

2007: Victorian County Court Judge Felicity Hampel SC holds that a rape victim’s privacy was invaded when ABC Radio broadcast her identity in a news report despite state laws banning the identification of sexual assault complainants. She is awarded $110,000 damages: Jane Doe v ABC & Ors [2007] VCC 281.

2008: Australian Law Reform Commission releases its For Your Information: Australian Privacy Law and Practice (ALRC Report 108) recommending a cause of action for breach of privacy where an individual has a ‘reasonable expectation of privacy’, with a cap for non-economic loss of $150,000.

2011: Federal Government releases an Issues Paper floating a proposal for a Commonwealth cause of action for a serious invasion of privacy.

2012

The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Privacy Amendment Act) passed, to take effect in 2014, featuring new Australian Privacy Principles (APPs), more powers for the Australian Information Commissioner, tougher credit reporting rules and new dispute resolution processes. Media exemption remains unchanged.
Independent Media Inquiry (Finkelstein Review) releases its report recommending a News Media Council take over from the existing Australian Press Council and Australian Communications and Media Authority with a streamlined news media ethics complaints system with teeth. Refusal to obey an order to correct or apologise could see a media outlet dealt with for contempt of court. Privacy breaches cited as a reason for the move.
Commonwealth Government’s Convergence Review releases its final report rejecting the Finkelstein model but instead proposing a ‘news standards body’ operating across all media platforms, flagging the withdrawal of the privacy and consumer law exemptions from media outlets who refuse to sign up to the new system.

2013

The federal attorney-general directs the Australian Law Reform Commission to conduct an inquiry into the protection of privacy in the digital era. The inquiry will address both prevention and remedies for serious invasions of privacy with a deadline of June 2014.
At the same time the government introduces legislation to establish a Public Interest Media Advocate with the power to strip media outlets of their Privacy Act exemptions. That part of the legislation is later withdrawn.
The federal attorney-general seeks state and territory input on the regulation of drones following the Privacy Commissioner’s concerns that their operation by individuals was not covered by the Privacy Act.

2014

The Australian Law Reform Commission (ALRC) releases a Discussion Paper, Serious Invasions of Privacy in the Digital Era (DP 80, 2014). The proposed elements of the action include that the invasion of privacy must occur by: a. Intrusion into the plaintiff’s seclusion or private affairs (including by unlawfulsurveillance); or b. Misuse or disclosure of private information about the plaintiff. The invasion of privacy must be either intentional or reckless. A person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstance. The court must consider that the invasion of privacy was ‘serious’, in all the circumstances, having regard to, among other things, whether the invasion was likely to be highly offensive, distressing or harmful to a person of ordinary sensibilities in the position of the plaintiff. The court must be satisfied that the plaintiff’s interest in privacy outweighs the defendant’s interest in freedom of expression and any broader public interest in the defendant’s conduct.

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Tagged as Australian media, blogging, Code of Ethics, defamation, election, fair comment, free expression, honest opinion, journalism, law, mark pearson, MEAA, media, media ethics, media history, media law, political commentary, press freedom, privacy, privacy law, right to privacy, social media law

July 11, 2013 · 2:16 am

To have and to hold? Newspapers (just) surviving 12 years after this …

By MARK PEARSON Follow @Journlaw

I just found this piece I wrote for the Otago Daily Times in New Zealand for its 140th anniversary issue almost 12 years ago.

My brief was to gaze into my crystal ball and foretell the future for newspapers. Futurology is always fraught, but on reflection I think I called it reasonably well at the time. What do you think?

(Of course, it’s quite a different outlook now!)

——

‘To have and to hold: newspapers on way back’, Otago Daily Times, December 11, 2001, p. 39

By Mark Pearson

Five years ago the Internet seemed to have scripted the death of newspapers.

Here was a hypertextual, instant, multi-level, multimedia technology with the potential to spawn new communities, reinvigorate old ones, and to fulfill the roles of all preceding media in a single interactive device.

Predictions of the death of newspapers were so common during the dot.com boom they had become almost trite.

Converts to the Web thumbed their noses at newspaper executives and compared them with the bosses of the stagecoach industry at the turn of the last century: while the future of horses as a species was assured, their function as the primary form of transport was destined for extinction.

Writer and academic Neil Postman even ventured to question the future of journalism in the modern era.

“What is the problem to which the profession of journalism is the solution?” he asked.

Postman argued that in the nineteenth century, journalism answered the problem of scarce information, but by the end of the last millennium the problem had become a glut of information.

“The problem is how to decide what is significant, relevant information, how to get rid of unwanted information,” he said.

When applied to newspapers, others suggested the problem was exacerbated by competition from other media, the loss of the notion of “community” in modern society, and the increasing pressures upon the average consumer’s time.

Add to this the fact that media consumers in Western democratic nations had experienced more than 20 years of relative peace and prosperity (in other words, little of large-scale importance to read about) and it seemed there were few remaining reasons why anyone would want to buy a newspaper.

One scholar, the US historian C. John Sommerville, pointed to another inherent problem in the news media: it is the business of products like newspapers to make the front page every day look like their contents are important and relevant, even though nothing earth-shattering might have actually happened in the preceding 24 hours.

Sommerville argues that over time this has dulled audiences to the contents of news products, leaving them with a lack of trust in the relative importance of the day’s headlines.

In his book How the News Makes Us Dumb, Sommerville says the news makes citizens “dumb” by dissecting reality, leaving the public with no idea of what to make of our times.

Nevertheless, two important events in the recent past have changed much of that and have allowed newspapers the opportunity to recapture the attention and loyalty of ordinary citizens.

One was the dot.com crash, the other the events of September 11, 2001.

The collapse of the financial markets’ confidence in Internet companies sent investors and consumers back to safer, reliable and tangible media commodities. And the newspaper was as safe and reliable and tangible a medium as one could find.

Despite generally declining circulations and dwindling titles since the 1950s, newspapers had continued to hold, if not improve, their share of the advertising dollar in an increasingly competitive media market. And all along the way they were recognized as wielding tremendous influence over important decision-makers in society, and for setting the agenda for competing media outlets.

The dot.com crash restored advertisers’ confidence in the safety of a quarter page advertisement in the morning daily over the ethereal promise of a million hits on some start-up backyard enterprise’s web site.

Like a good old-fashioned bride or groom, the newspaper was something “to have and to hold”, and it was somewhat comforting for advertisers to know their quarter page ad in the Daily Planet was going to land on a finite, countable number of front lawns in its shrink-wrap cover before breakfast the next morning.

The terrorism attack on America on September 11 and its aftermath also found newspapers back in their element as a chronicle and interpreter of world-shattering news within hours of its occurrence.

Certainly, there had been a shift in the role of newspapers as a medium since their heyday reporting the Second World War in the 1940s.

Then, with radio as their only competitor, they were bringing the actual news of distant events to their readers.

On September 12, 2001, they still delivered that news, but they offered much more: graphic colour photographic coverage and pages of background information and analysis that other media could not match.

As I stumbled down my driveway to pick up my local newspaper on that historic morning, having just seen the news report on the television, I was amazed that my local newspaper had been able to produce several pages of coverage of an event that had not even happened when I went to bed the night before.

The sheer thought of producing a printed product of considerable sophistication within that timeline reminded me of why the newspaper, something most of us take for granted, once earned the nickname “The Daily Miracle”.

Newspapers the world over relished the opportunity to cover such an important happening and interpret it for their readers.

And readers appreciated it, with newspaper titles throughout the world returning record circulations since that event as readers sought out tangible details on the attacks and the ensuing war and looked to newspapers for reliable expert comment and analysis.

This important news puts newspapers in their element, and its scarcity over the past half century has combined with other factors to erode the daily reading habit.

Newspaper executives hope their extra investment in the terrorism coverage will win back many of those lost readers.

We have yet to see whether that strategy is successful, but either way it would be a brave soothsayer who would predict the imminent death of newspapers.

We live in hope that events like those of September 11 will not recur and that the world will soon return to relative peace.

Even if that scenario comes to pass, newspapers will not die in the short to medium term.

Their circulations might decline gradually, and the number of newspaper titles might continue to diminish.

But those that survive will continue to play an important role in democratic societies and their influence among decision-makers and power brokers will continue to exceed their actual circulations.

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To have and to hold? Newspapers (just) surviving 12 years after this …

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