In Australia, there is currently no legal right to privacy (Parliament of Australia). Despite mention of protection of privacy by the Universal Declaration of Human Rights 1948, there is very little the public can do about invasions of privacy. This is particularly apparent in a contemporary climate with the presence of surveillance, easier access to confidential information, and an intrusive mass media. While it is not covered by law, it is generally considered to be ethical to afford people a reasonable level of privacy. This idea is supported by Andrew Belsey, who suggests that “it is ethics, not law that should protect privacy” (Belsey 1992). Alfino and Mayes also discuss the nature of privacy, describing it as a moral right not protected by law. This principle of respect for privacy is one which the media takes into consideration when dealing with stories of a personal or private nature. However, there is a train of thought that suggests public figures have a lesser claim to privacy than private individuals by virtue of their position in society.
Privacy refers to “the condition of being protected from unwanted access by others” (Belsey 1992). It also has to do with keeping personal information non-public and “being let alone, having control of access to one’s body and personal space, autonomy in personal matters, and solitude” (Archard 1998). Privacy is generally taken for granted in our society, however there is very little protection against invasions to it. For the most part, this publicity is centered on public figures, such as politicians and celebrities, people whose privacy is compromised by the media on account of their entry to public life. Due to this phenomenon, the question of whether these individuals are owed less respect for their privacy than private individuals and people cast unwittingly into the public eye, has been raised.
A common argument supporting the justifiable loss of privacy for public individuals is that “To become a public person is a change in status, and a subsequent loss of privacy. It is said that whatever bears on your public role ceases to be private. A public person is less private simply in virtue of his or her public status. Loss of privacy comes with the territory” (Archard 1998). It is widely considered that when an individual enters the public domain, they waive their rights to privacy as they must be open to public scrutiny to ensure they are properly executing their public role. The ‘public figure’ can be separated into various categories, each with its own position with regards to respect for privacy.
The first category is ‘personalities,’ celebrities who are created by publicity, which they actively seek, and would not survive without it. Belsey argues that as they seek publicity, they have little right to complain when their privacy is breached. This is because the nature of their position suggests an assumed level of consent to publicly broadcast information about them. “This type of person cannot legitimately claim the protection of privacy when they discover the negative side of the Faustian contract” (Belsey 1992). These individuals must accept bad publicity with the good, or risk hypocrisy. Therefore, since they have consciously and deliberately entered the public sphere with a desire for publicity they have forgone some of their right to privacy.
A 1977 Court of Appeal decision reinforces this idea, as they dismissed an injunction against a former press agent revealing secrets about his charges, saying “that those who seek and welcome publicity, so long as it shows them in a good light, cannot complain about invasions of privacy which show them in an unfavourable light” (Archard 1998).
This argument, however, has weaknesses in that simply because one seeks something good, does not mean they should have something bad thrust upon them in return. No person would willingly consent to bad publicity; however the media generally take the approach of Belsey and assume consent of publication, perhaps wrongfully. The media must decide what private information should be revealed and what information is gratuitous and does not contribute anything more than voyeurism.
A second category of people in the public eye is politicians. The unique ethical nature of political life means their protected areas of privacy are far smaller than other peoples. A politician holds a significant position of power, and in a democratic society this type of person must be open to public scrutiny in cases where their private life impacts upon the performance of their public duties. In 1976 the Australian Press Council stated that publication of private information without consent was acceptable only if there was “legitimate public interest overriding the right to privacy” (Belsey 1992). Generally, public interest covers cases where private information can show public officials to be corrupt, grossly inefficient, negligent or dishonest, on the provision that these factors have a bearing on their public duties (Belsey 1992). If, however, it is possible to discredit a politician by means of exposing flaws in their public life, this should be attempted before private details are revealed, as releasing the private information would be unnecessary and gratuitous.
Archard assumes that each individual has a strong interest in their own privacy and that any breach of a person’s privacy must be shown to be justified by the display of good reasons for the breach (Archard 1998). With regards to the media, this essentially means that information gained through a breach of privacy should only be revealed if it is in the public interest. Furthermore, the private information disclosed should only be used if it is the sole thing that is capable of serving a legitimately valued end. An example of this would be the media’s divulgence of Milton Orkopolous’ private affairs, in which it was revealed the Labor frontbencher had a drug habit and bribed young boys to have sex with him. Both of these illegitimate indulgences were paid for with public funds (The Australian, 2006). In this instance these embarrassing private matters needed to be revealed publicly to display Orkopolous’ failures in his public duties. A politician in this type of situation cannot claim the protection of privacy, as abusing their position of power and betraying the people they are meant to serve is a scandalous behaviour which should be open to public scrutiny (Belsey 1992).
Sensitive matters such as this one involving sexual morality are difficult to locate within the parameters of public interest. In the Orkopolous case the sexual behaviour was illegal, and therefore its release became justifiable in order to discredit the politician. A scenario where the divulgence of sexual behaviour was questionable is the Senator Bob Woods case, in which a sexual affair of the liberal frontbencher was exposed. Despite Archard’s arguments to the contrary, a person’s immoral sexual behaviour should not disqualify them from office unless it is illegal. What one individual chooses to do consentingly in private with another is not open forum for the public domain, and does not necessarily impede on an individual’s ability to carry out public duties.
While there is no inherent right to privacy under law, there are ethical boundaries which prescribe the nature of privacy (Alfino and Mayes, 2003). Although every person, regardless of position or stature in society, has a rightful claim to respect for privacy, it is generally accepted that public figures forgo some right to privacy in cases where public interest and the need to know is high. The media need to use good judgement in reporting matters, being vigilant in promoting public interest without straying into gratuity and catering for what the public wants to know as opposed to what they need to know. Public interest should be the driving force behind revealing private information about people, and all information should be gained in a morally permissible manner. Be it right or not, in our society the respect for privacy for private figures is greater than for public persons.
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Farr, M and Barlass, T (1997). “In the Garden of their home, a senator and his wife confront a scandal”, Daily Telegraph 7 February 1997
Media Alliance (2008). “Media Alliance Code of Ethics”, Retrieved November 3 2008 from Alliance Online website: http://www.alliance.org.au/code-of-ethics.html
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