View from Australia: Media’s own goal as privacy law looms – Richard Ackland

22 07 2011

The scandal engulfing News International, British politics and Scotland Yard also has leeched into the wide brown land … Inquiries abound … Australian Government seizes the opportunity to float a privacy law.

One forgotten element of the furore surrounding journalists and investigators employed by Murdoch companies is that, for much of the period bribes were being paid to police and phones were being hacked, News Corp was domiciled in Australia.

It moved from Adelaide to Delaware in November 2004, so conceivably liabilities for directors and employees could arise under Australian law.

In the meantime, we contend with the more immediate reverberations on home soil.

CEO of News Ltd, John Hartigan (pic) swung into action not long after the Milly Dowler story broke in London. He announced there was no evidence that the systematic illegalities practised at the News of the World existed in Australia.

Interestingly, he said that as CEO of the company, he knew the newsrooms under his management and was confident nothing was amiss.

This contrasts with evidence from Hartigan’s counterparts at News International, James Murdoch, who knew very little about how his newsrooms functioned.

Hartigan announced a review of the company’s “third party expenditure” to ensure there were no inappropriate payments.

A few days after that (July 20) the Prime Minister had a direct dig.

“I do believe that Australians watching all of that happening overseas with News Corp are looking at News Ltd here and are wanting to see News Ltd answer some hard questions.”

She didn’t elaborate on what those questions might be and Hartigan thought her remarks were “unjustified and regrettable”.

The investigation into third party payments will be done internally by News Ltd, but to give it a patina of independence and legitimacy, the chairman of the Australian Council, Professor Julian Disney, was invited to nominate two judges to act as “assessors” of the review.

Former Victorian justices Frank Vincent and Bernie Teague have been recruited to serve.

Simon Longstaff from the St James Ethics Centre in Sydney didn’t think judges were the best qualified people to oversee the audit.

“My initial question is: if you have a toothache, do you bring in a podiatrist?”

One aspect that should not escape examination is whether private investigators hired by any of News Ltd’s external lawyers have engaged in criminality.

There is no direct evidence on this at the moment, but suspicions abound.

Bruce Guthrie mentioned in his book Man Bites Murdoch that leading up to his court case against News Ltd for breach of contract and unfair dismissal, six computers were stolen from his home.

The thieves did not take jewellery, money or other valuables, only computers and iPods.

One of the computers contained all of Guthrie’s correspondence with his lawyers about the forthcoming trial.

This piece of criminality may have been unrelated to the case, but it nonetheless gives rise to unpleasant speculation.

In 2009 in a case against The Daily Telegraph, the plaintiff noticed his mail had disappeared, he was being photographed for months on end and on three separate occasions three different women propositioned him.

The plaintiff (who did not wish to be named because on ongoing litigation) feels that this harassment and theft was done to prejudice his defamation action.

Greg Baxter, News Ltd’s top spinner, denied that the company itself would do these things, but said:

“External lawyers defending News in Australia in defamation proceedings have occasionally used private investigators in accordance with standard Australian litigation practice.”

He added, “our code of conduct permits covert surveillance only with the approval of an editor and only if all other avenues have been exhausted”.

* * *

There is certainly no shortage of foreshadowed inquiries and consultations.

The Greens leader, Senator Bob Brown, wants an inquiry into media ownership and regulation.

You know where he’s coming from after the unrelenting campaign against the Greens conducted by Murdoch newspapers.

The Labor Party has also been a victim of News Ltd’s heavy handed campaign of opposition to every progressive social and economic policy advanced by the Rudd-Gillard governments. It is likely Labor will support the Green’s motion for an inquiry.

Who will conduct it and its terms of reference are still in contention. Nothing is expected to be formulated before August.

It will serve a useful purpose if it brings to light any corrosive relationships between the media, politics and institutions such as police forces, the public service or the military.

All sorts of subterranean deals and nudge-nudges exist in the media landscape and it would certainly be refreshing if they came to light.

Possibly a joint standing committee of the commonwealth parliament would be the way to go.

As for structural and ownership issues there are some interesting possibilities.

Michael Wolff (pic) one of Murdoch’s biographers, said the other day on radio that Rupert, forever the deal-doer, was keen to hive off the Australian newspapers to a new structure controlled by his son Lachlan. It would probably involve private equity investors as well.

Certainly Sky’s bid to win the government contract for the overseas broadcasting service, Australia Network, looks shaky in light of the scandal that has further soiled the reputation of Murdoch’s corporate governance.

Even the bid by Foxtel to takeover all of Austar and thereby monopolise the pay TV sector is likely to meet some stiff opposition.

Then, of course, there is the government’s announcement on Thursday (July 21) that it would hold a public consultation on the introduction of a law of privacy.

All of a sudden, the report of the Australian Law Reform Commission, released three years ago, recommending a statutory tort of privacy with remedies in damages and injunctions, was dusted off and given an airing.

The Gazette will be following this very closely.

To anticipate a law of privacy without a countervailing right of free speech spells trouble for the sort of journalism favoured by the News Ltd tabloids.

But then again News Ltd campaigned fearlessly against having a Bill of Rights in which freedom of expression was enshrined.

Looks like another own goal.

*Richard Ackland is the publisher of Law Press of Australia and editor of the online law journal Justinian. He writes a regular legal affairs column for The Sydney Morning Herald.

The Gazette of Law and Journalism is Australia’s leading online media law journal.  It has, since 1986, been covering court cases, legislation and policy issues that affect the media.  It has a comprehensive database of materials on defamation, contempt, suppression, protection of sources, freedom of information and privacy.


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