Stretching the definition of privacy

As a country still true to its common law roots, Australia does not have any general legal right to privacy. There are of course specific legal provisions that protect aspects of what may be called a person's "privacy", but the notion that privacy as such is worthy of general legal protection is foreign to the common law way of thinking. Doubtless to say, there are calls to change the law and for years now various legal reformers and other do-gooders have been proposing the introduction of some general and ill-defined right to "privacy". Now is not the time to get into that debate (I actually think that provided we have a fairly clear demarcation between public and private life some added legal protection to a person's "privacy" wouldn't necessarily be a bad thing), but the following incident is a classic example of the dangers of the woolly human rights mentality where the definitions of concepts protected in general rights (such as "privacy") are twisted beyond all recognition. (For a classic example of this woolly thinking you may want to read this previous post of mine on how the right to "respect for" one's "private and family life, [...] home and [...] correspondence" under Article 8 ECHR has been contorted beyond all recognition to include a right to kill oneself). Any legal right to "privacy" -- if it is going to be recognised by the legal system -- should not simply mean a person has a right to prevent a newspaper from publishing a story because she doesn't like what the story says about her or because it says something about her and she disagrees with its factual content. And yet that in essence is exactly what former Prime Minister Paul Keating has called for (and indeed many others are calling for) in the name of a right to "privacy"! This incident is a perfect example of so much that is wrong with the modern "rights mentality". Generally speaking, those pressing for the introduction of a bill of rights in Australia are not doing so out of some well thought out commitment to the protection of individual rights but rather are doing so as a smokescreen for personal gain or the imposition of their own (generally leftist and secularist) political agenda.

Following the publication by a newpaper of an allegation that his (adult) daughter Katherine kicked a photo journalist at a public event in the presence of witnesses, Mr Keating has argued that we need to introduce a legal right to "privacy" to prevent newspapers from publishing such stories. But what part of the word "privacy" does Mr Keating not understand? There is nothing "private" about this saga whatsoever. I have no idea whether Miss Keating actually behaved in the way alleged but what Miss Keating was alleged to have done was (a) criminal, (b) in public and (c) done in the presence of independent witnesses (i.e. neither the complainant nor Miss Keating). For crying out loud, she is alleged to have kicked a man in public in the plain view of independent witnesses. If proven in court then her conduct would amount to the crime of assault and be subject to a maximum of two years' imprisonment. Whether or not charges have been pressed is beside the point. Criminal conduct is still criminal conduct whether it the subject of formal police complaint or not. And to argue that publication of allegations of criminal conduct done in public in the view of independent witnesses is a breach of one's privacy is just plain crazy. It is stretching the definition of "privacy" beyond all reasonable bounds.

Now of course there is a need to recognise the principle that a mere allegation does not prove the fact and also that in the eyes of the law a person is innocent until proven guilty but this is easily done. The newspaper can publish the allegations against Miss Keating with a statement indicating that independent witnesses have corroborated the complainant's version of events and then indicate Miss Keating's reply to these allegations with a statement such as "Miss Keating denies the allegations" or "when approached Miss Keating declined to comment on the allegations" or "Miss Keating was unavailable for comment". And if the allegations were made maliciously etc then she can exercise her legal right to sue the newspaper for defamation. There is no need to silence the reporting of allegedly criminal conduct done in the public view out of concern for some right to an individual's "privacy". Now if of course the photo journalist had been snooping on her conduct in her own home then that would be different kettle of fish. In such a case there may indeed be a genuine case for a right to respect Miss Keating's "privacy". But that is not remotely related to what was alleged to have happened here. In the words of the late, great Stan Zemanek:

"Paul Keating, give yourself an uppercut!"