3/30/2010

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Privacy & public places

Public interest, privacy & secrecy

I just want some privacy

Is there a clause for that?

I think you'd first have to find journoswho knew there was a code of ethics. I seem to remember informal surveys that showed that many journos didn't know we had a code or if they did where they could find it and what it said. Might be a question worth asking again now.

� JOURNZ

� Discussion list for New Zealand journalists

� Responses to my questions about death knocks and the code of ethics

More on death knocks

I've lost track of the number of times I've been ordered to intrude on privategrief. Refusal to so intrude would have meant instant sacking.So many of our brethren love the Death Knock.The more tears, the better.So much for ethics.

A young off-duty police officer drowned after trying to raft down a river whileit was still in flood in the early 90s. The morning they found his body, Network demanded I contact his grandparents, who he was living with at the time.I refused and was told to front up or else. The cops hadn't given any directstatements until then. I phoned one of the friendly seniors, explained my predicament, and he gave me a perfect 10 second sound bite for use in the next bulletin. Network filled the hole and moved on to the next headline and I was left with my moral decision intact.

The day I become comfortable with death knocks will be the day I stop doingthem. Until then I'll do them, but I won't be enjoying it.

3/30/2010

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Covering grief – never easy

� Another way to cover grief?

� Find a spokesperson who is not a direct relative

� Go through agency such as police or church

� Timing – can you wait?

� Express empathy, but remember professional distance

Whether it's right or wrong, I hate the way we cover grief, get right in the face of people crying for a loved one, and film funerals in churches. I turn it off.I'm no fan of death knocks. I hate doing it. But sometimes there is value in them. I do remember one occasion where the deceased's parents wanted to talk because they wanted their son to be remembered as a person rather than a statistic.

Privacy: where ethics and law collide

� Principles and politics of privacy

� The legal framework

� Recent cases and precedents

� Surveillance

� The techno-legal time gap

� Privacy and the right-to-know

Common law privacy issues

� Courts can decide issues in relation to media intrusions on privacy (Hosking case 2005)

� Is there a reasonable expectation of privacy?

� Would publication be offensive to an ordinary person?

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The general rule

� Everyone has a reasonable expectation of privacy

� Should not disclose private facts if to do so would be highly offensive to a reasonable person

� Defence: public interest test

Privacy principlesand the media

� What’s generally covered:

� Family court proceedings

� tight restrictions on what’s reported

� Interception of conversations

� unless you have permission and/or you are one party

� Photography for private purposes

� Intercepting mail

Lesser privacy

� People in the public eye have a lower expectation of privacy

� Public officials – held to account

� Celebrities – profit from their fame

� Prominent people in public life

� Serious criminals

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Privacy & fairness

� BSA guidelines seem to suggest there is a link between intrusions into privacy and a report being “unfair” to the subject

� Does the subject have a “reasonable expectation” of privacy

� Identification is an issue, but so intimacy

A picture of an identifiable person leaving a brothel or a Narcotics Anonymous meeting is objectionable because it demonstrates that that person uses prostitutes or has a drug addiction.

(Moreham 2010, p.6)

Is this fair…

…or this?

� Naomi Campbell UK case after 3 years of legal action

� Cost the Daily Mirrormore than $2 million in costs (see case study)

This is a very good day for lying drug-

abusing prima donnas who want to have

their cake with the media, and the right to

then shamelessly guzzle it with their Cristal

champagne

Piers Morgan

Daily Mirror editor

3/30/2010

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“Click” –photography & privacy

� Photography

� Copyright Act – images for private purpose are protected

� Private facts which would be offensive to publish

� Hidden cameras – “intrusion into solitude”

� Trespass to photograph

� Contempt of court & defamation through image and/or caption

Law Commission report

� Ch 6 focus on media & privacy� Recognises shifting political economy & material

conditions

� “…there is an increasing merging of news and entertainment…

� …there is pressure to cut costs…

� …citizen journalism…blogs, chatrooms and sites like Facebook, Bebo and YouTube…”

(p.75)

Self-regulation of privacy issues

� Press Council 6 complaints out of 43 in 2008 relate to privacy

� BSA 2008-9: 17 out of 151 complaints about privacy

Law Commission comment on anomalies

of regulation and self-regulation:

There has been much comment that it is difficult to understand why broadcasters and the print media are dealt with so differently, the one by a statutory body which can impose legal sanctions, and the other by a voluntary body which cannot (p.77)…There is, of course, a much wider issue…It is how, if at all, the internet can be regulated. (p.78)

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Regulating privacy

� BSA

� Reasonable expectation

� Offensive

� Intrusive methods

� Public information is not private

� Public place not a defence all times

� Press Council

� Privacy should not interfere with public interest

� People in the news can be identified –public interest

� Authority cannot claim the cloak of privacy

� Be careful around children

Privacy and dubious methods

� Breaking and entering a private dwelling house,

� intimate covert filming,

� and demanding with menaces

Some criminal offences involve conduct so clearly against the public interest that it could not for a moment be supposed that the media should be exempt, however worthy their motives might be.

Law Commission

2010, p.79

…but

� BSA principle 8 allows exception for media to intrude on privacy for greater public interest

� Hidden camera may also be justified on occasion

…it may at times be justifiable for the media to telephone a person or accost a person in the street on more than one occasion if information of legitimate public concern is being sought.

Law Commission 2010, p.79

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Privacy & the techno-legal time gap

� BSA covers broadcasting

� Press Council covers newspapers & magazines

� Privacy Commission cannot regulate the “news media”

� No on regulates privacy breaches via the Internet

Solution…another dialectic

� So Stuff.co.nz would not be “news media”?

� How many ways does this not make sense?

� What alternatives are there?

� Is the Internet really free?

We wonder whether there may be merit in amending the definition of “news medium” in the Privacy Act to resolve this dilemma, perhaps by providing that online publications which are not subject to any other regulator are not “news media” and thus are subject to the Privacy Commissioner’s jurisdiction.

(Law Commission,2010, p.77)

Covert filming

� Media will have some defences which allow covert filming of “interior of a dwelling”:

� it is a place of work or business

� to protect health & safety

� expose the commission of an offence

� Cannot trespass, or break-in to install surveillance devices

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Privacy and celebrity

� Celebs live from the exposure they get

� Media makes money from the exposure too

� What level of privacy exists in the collision between their world and ours?

"I'd be lying if I said I hadn't read it or watched the television and the news. I've seen it, but I understand that you guys [media] have a job to do and me being a professional athlete, it's not just about what I do on the field, it's off the field as well.

Michael Clarke, NZ Herald 20-3-10

The Hosking tort

� Defence: “legitimate public concern” protects media against accusations of unwarranted intrusion into personal matters

[Burrows & Cheer 2005, p.247++]

tort Wrongful act, other than a breach of contract, that injures another and for which the law permits a civil (noncriminal) action to be brought. Relief may be obtained in the form of damages or an injunction.

Secrets and lies

It can be argued,(too,)that lying

and secrecy are basic to any

government; that it is only human

nature for political leaders to tend

to conceal the truth, hide their

mistakes or wrongdoing, and

mislead the public.

That easy rationale is not

acceptable, however, in a

democracy, which depends upon

an informed public.David Wise, The politics of lying (1973) p.24

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Rights to official information

� Official Information is any information held by the Government

� There are two Acts that govern access to official information:� the Official Information Act 1982; and

� the Local Government Official Information and Meetings Act 1987.

� The purpose of the law is to:� increase the availability of official information to promote

more effective public participation in the making and administration of laws and policies;

Homework

� Reading

� BSA review of privacy decisions

� Law Commission report, Ch6 (Tutorial worksheets)

� Burrows and Cheer Media Law in New Zealandexcerpt on Hosking decision (e.reserve)

� Price, Chs 5, 15, 20

� Official Information Act – guidelines (online)