Lord Justice Leveson recently appeared at two conferences in Australia, but not to discuss his mammoth two-thousand page report on media practices and ethics … Richard Ackland explains why his Sydney talk on privacy and the internet “was like watching Pavlova walking, instead of dancing”
It was entirely fitting that Lord Justice Brian Leveson kicked-off his Australian tour with a paper delivered at the Shangri-La Hotel in Sydney.
So apt. There were lots of myths buzzing about the room and the horizon for this discussion on privacy and the internet was not only lost, it had never been sighted in the first place.
Leveson made it clear he would not be talking about the major work of his life, the report into The Culture, Practices and Ethics of the Press.
That was akin to a “judgment” and judges don’t debate their judgments. I’m sure Leveson would have loved to set the record straight on some of the post-report commentary, yet with great restraint he stayed schtum.
So here was everyone, desperately hoping for some morsels about his inquiry into phone hacking, trapped into a discussion on privacy and the horizonless internet with a panel that included, with the exception of Prof. George Williams, some of the dullest men alive – NSW attorney general Greg Smith and his predecessor John Hatzistergos.
Watching Leveson on stage was like watching Pavlova (that’s Anna) walking, instead of dancing.
The judge cantered through pivotal moments of history when new technologies changed the concept of privacy … the penny press, the telephone, the Kodak camera.
Dickens parodied cheap newspapers in Martin Chuzzlewit – when the hero arrived in New York, he is assailed with:
“Here’s this morning’s New York Sewer, cried one. Here’s this morning’s New York Stabber. Here’s the New York Family Spy … Here’s the New York Peeper…”
And so on.
There was an jurisprudentially important moment when Samuel Warren and Louis Brandeis brought privacy to the fore in their famous Harvard Law Review article of 1890.
“The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and the vicious, but has become a trade, which is pursued with industry as well as effrontery.”
So Leveson’s message is we’ve been here before. Technology has brought an end to privacy on more than one occasion and yet there has been an “historical failure to develop limitations on incursions into privacy by the media”.
There’s little expectation that the internet might limit its incursions without “some type of intervention”.
This was getting perilously close to Lord Justice Leveson’s “judgment” so he quickly veered off in a short dissertation on Australia’s Convergence Review.
The internet is not held to the same standards as traditional media, Leveson observed.
“Online bloggers or tweeters are not subject to the financial incentives which affect the print media, and which would persuade the press not to overstep society’s values and ethical standards.”
He made the word “tweeters” sound as through they were people who bought off-the-peg clothing.
There is a view that blogging or tweeting is beyond the law, and this was reinforced during the early part of 2011 when England and Wales experienced what was described as a “super-injunction spring”.
While newspapers were stopped from printing stories that dealt with the private lives of celebrities and sports personalities, the internet was altogether different.
However, the idea that users of social media and bloggers were beyond the shadow of the law changed after the Newsnight broadcast alleging a prominent member of the Conservative Party from the Thatcher era was linked to an historic child abuse scandal.
The mainstream didn’t mention him, but the twitterverse lit up with the wrong name – Lord McAlpine (well known to Australians for his interest in the Kimberley).
The BBC and ITV have apologised and settled for £185,000 and £125,000 respectively.
Small twitterers will be forgiven if they pay £5 to charity. There are about 1,000 of them.
So there can be legal consequences for those in the anarchic online world. Users can be identified, tracked down and sued, although damages against those with small online followings might not be worth the trouble.
Also, the criminal law can come into play as was seen with the prosecution and conviction last year of two men for inciting a riot using Facebook.
“The shadow of the law falls on the internet as it does all other aspects of society.”
Leveson believes that as with the print media in the nineteenth century, the law will start to have a moderating effect on individual’s behaviour.
“Time and proper application of the law will play the same role for the internet as it has done in all other areas of our lives; it will shape our behaviour and help to reinforce social norms. Just as it took time for the wilder excesses of the early penny press to be civilised, it will take time to civilise the internet.”
Leveson thought that while established legal norms are in many respects capable of application to the internet, “it is likely that new ones and new laws will need to be developed”.
It requires a strong faith to believe that the law will ultimately corral users of the internet in the same way it has proprietors of mainstream media.
You only have to see the significant lack of response to court take-down orders for internet news sites to know that it’s going to be a long struggle for the courts to conquer this patch.
Lord Justice Leveson repeated the mantra that he believes in a free press.
Everyone else in the room nodded in agreement. So how do privacy and a free press coexist?
The judge pulled a rabbit out of the hat and declared that privacy is “an aspect” of freedom of expression, and that they are not in opposition to each other at all.
“What is often not fully appreciated is that privacy is in itself both an aspect of freedom of expression and necessary for freedom of expression to be fully realised … The right to silence is itself not only exercising a right to privacy but is also a form of freedom of expression.”
This was a dialectical swifty, but everyone was keen to swallow it, as it provided a way to have it all: a free press and remedies for the media’s invasion of privacy.
Suddenly, the dichotomy had vanished, and everyone was back in Shangri-La.
After three recent law reform commission reports on privacy and a government issues paper on the topic, produced in September last year, plus newspaper stories about an impending Cabinet decision, there’s been an eerie silence on the topic.
The government has been sitting on a whole pile of further submissions.
It is suspected that Canberra is waiting for a really horrible invasion of the privacy of an heroic and much-loved national figure, maybe someone like Kamahl or Little Pattie.
No one at the Leveson symposium in Sydney wanted to talk about the “nitty gritty” of proposed privacy laws.
The judge himself said he offered no solutions or recommendations.
“I simply offer issues to be considered.”
This is just as well, because the nitty gritty is not pretty.
The Australian and New South Wales Law Reform Commissions proposed a smorgasbord of remedies: damages, injunctions, account of profits, apologies, corrections, declarations.
The Victorian Law Reform Commission confined itself to damages, injunctions and declarations.
From a media perspective, injunctive relief is a matter of huge concern. It is a backdoor way of stopping the presses in cases of potential reputational harm, something defamation law steadfastly sought to avoid in the interests of freedom of expression.
Newspaper stories or broadcasts could be injuncted at the slightest whiff of reputational damage, even though ultimately there either may be a finding that the proposed publication did not amount to a serious invasion of privacy, or that it was defensible in the public interest.
Time-sensitive stories would have no hope of survival in this environment.
Judges armed with a statutory right to stop journalists are a direct challenge to freedom of the press. If there needs to be accountability for serious invasions of privacy by the media let it lie in damages, not in censorship.
How would an injunction remedy affect some of the most important items of contemporary reporting?
The Obeids and corruption in NSW; the Catholic Church and paedophilia; James Hardie and directors’ duties; university colleges and fresher bashing, Craig Thomson and rorting the Health Services Union; Julia Gillard, the AWU and Slater & Gordon; Ashby v Slipper.
Arguably, each contains some reputational damage touching on privacy and each could be the subject of an application for an injunction.
Interim injunctions could conceivably be granted in relation each and every stage of these journalistic investigations.
The simultaneous embrace of both a free press and a statutory right with an injunctive remedy is akin to that uncomfortable straddle on the barbwire fence.
No wonder the issue was studiously avoided at the Leveson chinwag.
This post originally appeared in the Gazette of Law and Journalism – Australia’s leading online media law journal.