Balancing privacy with public interest

Our right to privacy is deeply cherished, and JAN CORBETT finds that right is sustained in a delicate relationship with the public interest.

"To hell with privacy," the man announced to his startled colleagues, brandishing a document he had just picked up from his local Post Office.

For months he had been pursuing several thousand dollars worth of debt through the small claims tribunal. The tribunal agreed he was owed the money but the debtor consistently failed to pay up.

So, exercising his rights, our man called in the bailiff. But first he needed to be sure the car he had seen his debtor driving was indeed his and could legally be seized.

Armed with nothing more than a car registration number and $2.25, he went to the Post Office, accessed the registration files and found the name and address, satisfied his right to be paid was more important than his debtor's right to privacy.

Set that against the case of the woman who was stalked by a man who similarly got her name and address from the same database, and you have the tension between privacy and public interest.

Privacy may have been declared by West Wing scriptwriters to be "the human rights issue of the 21st century," but we have only enjoyed private lives in the short time between urbanisation and the rise of the electronic media. In the cave and the village everyone knew everyone's business.

As we surrender our briefly enjoyed privacy to these new technologies, the debate is on where to draw the line.

For instance, after TV3 screened its hidden-camera 20/20 investigation into the sexual predations of respected Christchurch doctor and deputy mayor Dr Morgan "Fingers" Fahey, three viewers complained to the Broadcasting Standards Authority, alleging that sending a patient into his surgery with a hidden camera was a brutal invasion of the good doctor's privacy.

The BSA agreed, but it refused to uphold the complaint and punish TV3 because it considered exposing Fahey - who pleaded guilty to the subsequent rape charges - was in the public interest. As Fahey knew, privacy can be the shield that allows bad things to happen. Publicity is the disinfectant that can clean up everything from sexual abuse to high-level corruption and incompetence.

Privacy can be the enemy of the public interest.

But while we have a Privacy Commissioner to defend the boundaries of privacy, we have no similar independent agency defending the public's right to know.

Instead that role falls to the news media.

Along with direct marketers, no one fought harder against the introduction of the Privacy Act in 1993 than did media.

After intense lobbying, it was finally decided that the business of reporting the news and covering current affairs would have an exemption from the act. Even the Privacy Commissioner could see the Privacy Act would be an unwelcome restraint on press freedom - a cornerstone of a free, democratic society.

Which is not to say the media is untouched by privacy law. Getting to the truth can be more difficult because the act dissuades agencies from releasing information that was once readily available to journalists, like what a public figure who claims to be an intellectual giant really did score on their university history paper.

Nevertheless, electronic media are governed by the BSA's privacy principles. These principles say it is an invasion of privacy to broadcast facts that are "offensive and objectionable to a reasonable person of ordinary sensibilities" and unpleasant facts like a criminal conviction which have become private again over time.

They warn against intrusion into the life of someone actively seeking seclusion and the public airing of private disputes that abuses or ridicules an identifiable person. The BSA dislikes broadcasters announcing people's addresses and telephone numbers, unless it is overwhelmingly in the public interest.

Despite these guidelines, or maybe because of them, breaches of privacy complaints consume a lot of time at the BSA.

Executive director Michael Stace says at 44, privacy was the third largest category of the 239 viewer complaints filed in the year to last June. Half of these were upheld - the largest percentage of successful complaints for any category.

But Paul Cutler, outgoing head of news and current affairs at TVNZ, accuses the BSA of raising the stakes on privacy by making it the one area where complainants do not have to complain to the broadcaster first.

Cutler is certain the BSA's privacy principles impinge on free speech and although he has no immediate examples, he believes TVNZ has at times withheld information that was in the public interest to reveal because of fear of censure from the BSA.

Punishment handed out by the BSA can range from forcing the broadcaster to read an apology, fining it, or taking it off the air for up to 24 hours.

The head of news and current affairs at TV3, Mark Jennings, says competition has driven television reporters to become more intrusive into the lives of story subjects. He says the most difficult area of judgment is stories that involve children and teenagers.

The BSA also upped the ante in that area, saying it is no longer sufficient that a parent give permission. The broadcaster has to decide if that decision is in the best interests of the child. Cutler complains "that puts the onus on us to decide who is a good or bad parent."

Although in his 1998 review of the Privacy Act, commissioner Bruce Slane favoured continuing the media's exemption, he also called for more rigorous self-regulation.

Perhaps because it is seen as a less invasive medium, print journalists face fewer privacy restrictions. Two years ago the Press Council - the self-regulatory complaints body for press reporters - issued a set of guiding principles, among them that "Everyone is entitled to privacy of person, space and personal information, and these rights should be respected by publications. Nevertheless the right of privacy should not interfere with publication of matters of public record, or obvious significant public interest."

Yet as Canterbury journalism school head Jim Tully complains, we are not good at defining the public interest.

Not so the British, whose Society of Editors has enshrined this definition within its code of practice - detecting or exposing crime or serious misdemeanour, protecting public health and safety or preventing the public from being misled.

In the absence of an overriding public interest, the code says, "Everyone is entitled to respect for his or her private and family life, home, health and correspondence."

It says the use of long-lens photography to take pictures of people in private places without their consent is unacceptable.

It also says "A publication will be expected to justify intrusions into any individual's private life without consent."

The code also restricts reporting about children and identifying victims of sexual assault - restrictions that are enshrined in law in this country.

In the United States, media law allows greater latitude when reporting on public figures, and the culture favours disclosure over concealment to a far greater degree than in New Zealand.

Nevertheless, its Society of Professional Journalists tells its members to "recognise that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify intrusion into one's privacy."

But deciding who, beyond elected politicians, is a public figure can be difficult. Do sports stars and television celebrities count? What about business leaders or professionals who seek power, influence and attention by nurturing a media profile?

In 1999 Justice Nicholson barred the Sunday Star-Times from revealing the psychiatric history of a person who "because of his occupation, activities and publicity relating to those activities is a public figure," on the grounds it would invade his privacy. The judge saw no evidence that this person's past or present mental health made him unfit to carry out his job, so there was no public interest in revealing it.

Had this person been an elected politician who made pronouncements about mental health, the situation may have been different. Generally those decisions lie with news executives. To date the convention in newsrooms when dealing with the private lives of politicians is to reveal them only when they illustrate hypocrisy, or undeclared self-interest.

But the public interest does not solely reside in award-winning journalistic exposes of crime, corruption and sleaze.

It might also reside in the idea that retailers who are asked to extend credit have a right to know the customer's credit risk.

It may extend to house-buyers or sellers who, rather than being fed an over-inflated picture of the market, can look up land-transfer records and see for themselves the amount properties are selling for.

It undoubtedly resides with shareholders in a public company who want to know what the chief executive and directors are being paid.

And what about the employer who is losing cash out the of till and wants to catch the culprit rather than accuse all the staff?

Much of the camera-surveillance police carry out in public places is designed to reduce the crime rate and make those areas safer.

The public appears to want it, as Te Atatu community constable Murray Smith discovered when he was overwhelmed with support for the idea of catching burglars by erecting cameras to identify vehicles entering the peninsula.

And clearly there is public interest in allowing police access to medical files if it helps them to catch a serial rapist before he rapes again, for instance. Indeed, the health information privacy code allows for that.

Health is one area where there is considerable public interest in revealing your information to someone else - be it a researcher working towards prevention, cure or improved policy or the medical officer of health who can act against an unhygenic restaurant, or prevent carriers of infectious diseases from wilfully infecting others.

The demand for selectively released information about the mentally ill has never been more acute since the murder of Malcolm Beggs by a flatmate, a paranoid schizophrenic who had discharged himself from hospital.

So are we dangerously paranoid about losing our privacy?

The Privacy Commissioner may be railing against wholesaling public registers to direct-marketing companies, but does it really matter that a marketing guru combs car registration and habitation indexes to work out whether you are in the income bracket to afford the latest Jaguar and writes directly to you to gush about the latest model? Aren't you just a little flattered?

New York advertising executive and futurist Marian Salzman is the co-author of Next: Trends for the Future. In Christchurch three years ago to promote the book, she was quoted by the Press saying that "one interesting side-effect of the newly omniscient Big Brother is that our lack of privacy will spell freedom for many. Instead of being ashamed of what me might consider our perversions or 'natural' impulses, we'll increasingly see how many people think and behave the way we do.

"From infidelity to bondage, foot-fetishes to businessmen wearing women's undergarments, we'll see assumed blindness develop to one another's underbellies, along with a sense of futility regarding efforts to keep humans from being human."

In other words be honest, stop hiding, and find out you are not alone.

Put that to Bruce Slane and he says it all comes down to what people feel is a reasonable or unreasonable intrusion into their lives.

"It's the mark of a civilised society that people respect a right to a private life," he says, remembering that the mark of oppressive regimes is that their people live in fear of even their thoughts being monitored.

Sometimes privacy serves the public interest.

Herald Online feature: Privacy

Privacy Commissioner (NZ)

Electronic Privacy Information Centre (USA)

ACLU Echelon Watch (USA)

Cyber Rights and Liberties (UK)