The Relationship between Australias High Court and the Media - Essay Example

Introduction The relationship between Australia’s high court and the media has been examined with a stress on the court’s attitude to modern media and how it functions within society. Especially when dealing with press freedom (Pearson, 2004). This study drew the result that there has been a change in the court’s mindset when dealing with media, reporting and liberated press doctrine as embodied in the five recent rulings of two justices of the high court. Termed, ‘The Modern Media’ by both Justice Callinan and Kirby during their judgment of Australian Broadcasting Corporation vs. Lenah Game Meats Pty Ltd (2001). Indications included open inquiry into formerly held values and principles such as the role of the Fourth Estate, it position as a custodian of public trust, the singular conditions of its production and the benefit of the doubt it holds in the area of public interest questions; for example court reporting and previous self-control. Duty of Care Gideon Goal, a famous footballer, is invited by the manager of a brand new hotel to stay for a weekend as a celebrity guest. He posts a photo on Facebook of himself sitting in his opulent bedroom at the hotel. Later that night, he does a TV interview for Channel X TV in the hotel restaurant. The cameraman accidentally knocks into a fish tank in the restaurant and cracks it. Gideon Goal slips on a patch of water that leaks out from a fish tank. He injures his back and is unable to play football for two weeks. His club seeks compensation. Precedent The law says that to prove negligence, then the presence of certain principles must be demonstrated: (1) That the defendant owed the plaintiff a standard of care. (2) The defendant breached the duty of care by through an action or omission. (3) The plaintiff was harmed. (4) The harm was the result of the breach of duty. (Arlington, 2010). In this case, Gideon Goal slipped on water from a fish tank. Is it proper to say that having the fish tank in the restaurant constitutes negligence on the part of the hotel? The fact that it was a cameraman from the TV channel and not an employee of the hotel who caused the water to be present on the floor would lead to a question as to how liable the hotel really is in regards to this injury seeing as it was not one of its staff who caused the injury. It can be argued that had the fish tank not been present in the restaurant, or the water cleaned up right away, and then there would have been no risk. Negligence in this case would have to be proved. This can be defined as behaviour that is blameworthy because it does not encompass what a ‘reasonable’ person would do to protect others from predictable harm. Lord Blackburn put it this way in the case of Fletcher vs. Rylands (1866) LR1 Ex 265) “Those who go personally or bring property where they know that they or it may come into collision with the persons or properties of others have by law a duty cast upon them to use reasonable care and skill to avoid such collision.” This precedent would seem to imply that the fault lay more with the cameraman than with the premises. Breach of Privacy Three months later, the hotel launches an advertising campaign headlined “These rooms kick Goals”, and prominently featuring the Facebook photo of Gideon Goal. Gideon Goal complains, saying he didn’t know the photo was going to be used and demanding the hotel pays him for being featured in the advertising campaign. The hotel refuses, saying that this was the understanding in offering him the room for the weekend. According to Keel and Duesbury (2004) Australian law tries to protect privacy via different means such as defamation law and breach of confidence. There is no cause of action for invasion of privacy instead; the law on breach of confidence has been expanded to remove the restriction that there is need for a previous confidential relationship between the parties. The problem becomes how to classify information as confidential if there is no pre-existing contract that states that it is so. The Anglo-Australian law states that a functional and realistic test of what can be termed confidential is articulated by the High Court Chief Justice in ABC v. Lenah Game Meats Pty Ltd (2001) HCA 63 and has been broadly accepted i.e. whether; “Disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities”. (Keel and Duesbury, 2004) In this context, the photograph of Gideon Goals that he posted on facebook does not qualify for breach of confidence because there was no previous agreement to keep it private. In any case, it was already in the public domain. However, if one is looking at it from the viewpoint that the picture was copyrighted, then it can be said that the hotel breached Gideon Goal’s copyright to the photo. Copyright law in Australia protects all artistic works including paintings, photographs, sculptures, sketches etc, which exist in either digital or hard copy format. Trespass and Invasion of Privacy A year later, Gideon Goal writes his memoirs for an Australian publisher. A freelance journalist, Jack Hack, hears from a source that the book is going to be “explosive”. He contracts a private investigator who hacks into the voicemail of Gideon Goal’s mobile phone to see if he can gain any hints about the contents of the book. The concept of privacy is regulated by the Commonwealth Privacy Act 1988 as well as other state Privacy Acts. Yet the media is exempt from these provisos so long as the planned invasion of privacy is done within the course of journalistic pursuit and that the media organization publicly holds to some rules on privacy standards. (Australian Press Council, 2007) Therefore the question arises as to whether what Jack Hack did could be considered within the journalistic pursuit, or whether he held to the rules of journalistic standards while hacking into Gideon Goal’s personal voicemail. In Anglo-Australian law as personified by the situation in which Jude Law accuses News of the World of hacking into his voicemail, the illegality of a journalist hacking into an individual’s voicemail is established. This is covered under the Regulation of Investigatory Powers act of 2000 which oversees the interception of phone messages. (Hirsch, 2010) Therefore, we must conclude that in this case, Jack Hack committed an offense. Privacy and Breach of Confidence From the messages, he learns that in Chapter 2, Gideon Goal will reveal that two of his team-mates are in a homosexual relationship, but wish to keep it private. There has not been a specific law that deals with privacy in Australia although most courts do adopt the decision of the High Court in Victoria Park Racing [1934] HCA 65; (1934) 52 CLR 9 which implies that in common law, it is not an enforceable right to have privacy. This has not hindered several civil suits being brought to do with invasion of privacy under the aegis of common law torts such as trespass and breach of confidentiality. Before the standardised law in 2006 dealing with defamation, the invasion of privacy would sometimes result in a defamation suit. This is illustrated by Australian Consolidated Press Ltd v Ettingshausen (unreported, C of A, 13 October 1993). Alleging that the material is true without proving how it is in the public interest utilised as a defence ended this trend in Australian jurisdictions. Australia signed the International Covenant on Civil and Political Rights in 1972 whereby article 17 has proviso for the right to personal privacy. This was however not ratified until 1980. (Australian Press Council, 2007) these laws can be used to allege that Gideon Goal invaded the privacy of his two team mates by his allegations. However, they may not be able to sue him for defamation if it can be proved that what he said was true even if it is not exactly in the public interest to know about their liaison. They can however seek redress from him for violating their right to privacy as set out in the International Covenant. Copyright and Intellectual Property Laws and Trespass Jack Hack poses as a Work-safe inspector to gain entry to the publisher’s factory and manages to take a copy of the book which is being prepared for publication. Any material that is written down or in some other form that can be read which is not of a trifling content is classified as literary or dramatic work. This classification includes works of electronic nature or hard copy, they may be letters, novels, articles, emails, song lyrics, databases, poetry etc. there is no standard of excellence that needs to be met in order to qualify these works as copyrighted (Copyright and Classification Policy, 2009). Trespass applies where an individual gains entry or resides in a place (apart from clearly public spaces) with the intent to commit an offense such as theft or insult on a person. Different penalties apply according to the status of the area, i.e. residential or not, according to the Criminal Consolidation Act 1935 (Law Handbook, 2006). Jack Hack obtained entry to the publisher’s premises by means of deception, and then proceeds to take a book being prepared for publication without permission. This constitutes not only copyright infringement but outright theft of property as well as trespassing on premises in an unauthorized manner. All of which are actionable offenses. The question arises as to whether doing so in the pursuit of journalistic goals justifies the same. The publishers on the other hand, had a duty of care to ensure that the author’s property was safe from just such an eventuality. Secret Recording The Daily Trumpet newspaper contracts with the publisher for exclusive serialization of excerpts from the book. Gideon Goal also agrees with the newspaper to invite the players featured in Chapter 2 to a hotel in Melbourne, where the newspaper has installed secret video equipment. When they arrive, Goal begins a discussion with the players about whether they would be willing to join the public campaign for equal rights for same sex couples. The players decline. It is up to the court’s discretion to decide whether to grant relief for wrong use of classified information. Should a plaintiff bring an action for breach of confidence, he must prove that the media organization published data that had a confidential quality about it, communicated in a situation that implied an obligation of confidence, and the utilisation of this data is detrimental to the communicating party (Coco v. A N Clark (Engineers) Ltd (1969) RPC 41.). Suits have been instituted for disclosure of such information as trade secrets, personal secrets (such as information on sexual behaviour), etc. Should a media house publish information it knows or discovers was obtained in circumstances in which the information was thought to be confidential then there is liability on the part of the organisation for breach of confidence should they publish. This is illustrated in Seager v. Copydex Ltd 1967 All ER 415 (Australian Press Council, 2007). This implies that should Gideon Goal get any incriminating evidence from the two team mates in the hotel room, it would be illegal for the Daily Trumpet to publish it knowing that the situation in which it was obtained involved secretly recording the participants without their knowledge or consent. Copyright and Intellectual Property Laws The following day, Jack Hack releases the entire contents of the book on a website he has set up called GideonGoalsbook.com. The Daily Trumpet complains to the publisher that they have lost all the value from their exclusive serialization rights to the book. The Copyright act is designed to protect any original work that is artistic, dramatic, musical or literary in nature, submitted by a resident or citizen of Australia. It must also first have been published in Australia (Australian Press Council 2007). This proviso sufficiently covers Gideon Goal’s book to the extent that it was first published in Australia. The rub comes in in that it had not yet been released, but was in the process of publication. So the question arises that did Jack Hack preempt the publisher by releasing the book on his website before it had been released by the publisher into the public domain? Would this also imply a failure to implement duty of care by the publisher by having the work stolen from its premises which caused financial loss to the Daily Trumpet as well as Gideon Goal? That would suggest that the publisher would liable for damages to both these parties should they choose to sue. Privacy The players named in Chapter 2 deny the claims that Gideon Goal has made. The players say they are consulting lawyers and will seek an injunction to stop all publication of the story. The next day Daily Trumpet publishes on its website the full video of their meeting with Gideon Goal in the hotel.   In New Zealand there was the case of Hosking v. Runting and others in which photographs taken of the twin children of a famous TV presenter during a shopping expedition his wife and children were on. The parents attempted to block the publishing of the images of their children but while the court recognized that a law on invasion of privacy did exist, they did not feel that it applied in this situation. This is because the photographs were inoffensive and it was not reasonable to expect the maintenance of privacy since the mother was simply on a shopping trip. This is contrasted with the case of Campbell v. Mirror Group Newspapers in which her photograph was taken as she was leaving a Narcotics Anonymous meeting. The Mirror was found liable. The court in New Zealand was also of the view that since public figures must have less expectation of privacy due to the nature of their livelihoods. In Australia the possibility of a privacy tort was raised in the case of ABC v. Lenah Game Meats (2001) in which possum slaughtering was secretly filmed at a meat processing plant. The court’s judgment highlighted the view that some acts are not expected to be observed and may be offensive to the reasonable person. The second case was of Grosse v. Purvis (2003) in which damages were awarded due to the long term nature of the invasion of privacy as well as the long term harassment of a physical and verbal nature in which Grosse was stalked by Purvis for over six years (Arts Law Centre, 2010). These cases could function as a precedent in the case of invasion of privacy but as yet there is no actual invasion of privacy tort in Australia except for what is covered under the Privacy Act. Consequently, the Daily Trumpet and Gideon Goal respectively may not be liable to Gideon Goal and the two players although they could be sued under precedent. Conclusion The above scenario has brought out many issues and no party is completely without fault. The potential for massive litigation and even jail time is very real. The example illustrates a very real concern with the morality and ethics of journalism in the modern context and the general lack of honour human dealings. In parliament there is much debate that champions the cause of press freedom, however, it must be mentioned that there are instances of abuse of this freedom both locally and abroad. There was a whole speech dedicated to this issue by Michael Danby in the Grievance Debate in the House of Representatives, 2003. He quoted an article in the British Guardian newspaper written by Polly Toynbee in which she stated that the prevailing style, habit and mindset (Pearson & Galvin, 2007 p. 150) of much of British journalism involved denigrating, mocking or killing figuratively. Truth becomes a casualty. It is to be hoped that Australian journalism is not intending to adopt this trend. References Arts Law Centre (2010) Privacy and the Private Centre. Retrieved 1/6/2011 from: http://artslaw.com.au/  Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 (15 November 2001). Retrieved on 01/06/2011 from: www.austlii.edu.au Australian Press Council. (2007). The Media and the Law. Retrieved 30/05/2011 from: http://www.presscouncil.org.au/pcsite/fop/auspres.html Arlington, K. (2010) Killer’s Family Sue Negligent Doctor. Retrieved 30/05/2011 from; http://www.smh.au/nsw/killer-family-sue-negligent-doctor-20100912-15zr.html Blackburn, C. (1922). In Venn, J. & J.A, Alumni Cantabrigienses, Cambridge University Press, Vol. 1. Copyright and Classification Policy. (2009). What does Copyright Protect? Retrieved 30/05/2011 from: http://www.ag.gov.au/  Hirsch, A., (2010). Hacking into voicemails ‘illegal even after they have been heard’. Tuesday 7 September in the guardian.co.uk Keel, P. & Duesbury, L. (2004) Sex, Drugs and Breach of Confidence. Litigation and Dispute Resolution Insights. Retrieved from: http://www.claytonutz.com/publications/newsletters/litigation_and_dispute_resolution_insights/20040826/sex_drugs_and_breach_of_confidence.page Law Handbook (2006) Serious Criminal Trespass. Retrieved 1/6/2011 from: www.lawhandbook.sa.gov.au/ch10s05s02s07.php Pearson, M. (2004). The journalist’s guide to media law. Dealing with legal and ethical issues. In Pacific Journal Review pp.2 Sydney: Allen & Unwin. Pearson, M. and Galvin C. (2007) The Australian Parliament and press freedom in an international context. In Pacific Journalism Review p. 150. Retrieved from: http://www.aut.ac.nz/depts/commstud/journ/pjrsubs.shtml Rylands v. Fletcher (1868) UKHL 1, seminal strict liability case. Read More