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Johann's Blog

Is Personal Privacy A Lost Cause?


THE answer is not as far as the law is concerned. Legislators and courts are tackling privacy issues with vigour. Yet the unstoppable advances in technology, media and communications which stir up so much social agitation about privacy also highlight the law's limitations.

The law has recognised that every man's home is his castle, a refuge from the world, since the 1600s. Step outside into the public arena and everything changes, the more so as the world goes virtual. Celebrities may target media entities, persuade courts that there is a human right to privacy even in public, get injunctions or damages and large awards of legal costs. But who can stop a fan with a mobile phone?
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The law has protected confidences ever since Prince Albert sued to protect Queen Victoria's family etchings. Fast forward more than 100 years and now it is "relationship" videos or photographs that people want to keep private, from their own circle or from magazines, websites, or YouTube.

Even when the law recognises privacy as a value worth protecting, it is not an absolute value to be protected at all costs. Not everyone is entitled to it. Some may forgo it. Privacy must compete with fundamental features of a democratic society such as the open and transparent administration of justice and government, freedom of expression and the freedom of the press. WikiLeaks is not about privacy - it is about how governments juggle transparency and accountability with security and diplomacy. The safety or health of the community might trump individual rights. The law, and those who live under it, like the media, have to judge what is the right balance.

Having a law against something cannot prevent people flouting it, finding a loophole or creatively setting up a whole new order, like the internet, that makes old laws appear at best limited and at worst useless. While once the power of public communication may have been in the hands of a privileged few, who could be targeted by the law, every individual with a mobile phone is now a publisher to the world. A photograph, the most powerful, concise and probative form of information, can be communicated in seconds. Privacy can be lost in seconds.

Yet we don't give up on having a law against theft just because thefts keep happening. Privacy is worth fighting for, but the hardest question in any law of privacy is where the boundary between private and public should lie, and that boundary is being continually redrawn.

Barbara McDonald is a professor of law at the University of Sydney and co-author of Celebrity and the Law (Federation Press, 2010).


Privacy isn't a lost cause: the main question is how to protect it.

The powerful Privacy Committee, which I headed from 1975 to 1982, was one of the first in the world. Government gave us wide powers to investigate, thinking the culprits were in the private sector, but it soon became evident that, because of its many functions, government was the main invader. Politicians soon regretted the powers they granted.

We based our approach not on giving rights, but by avoiding the need for such rights. We did this by publicising how previously secret systems worked and ensuring that those responsible for them acknowledged their inevitable mistakes. It was agreed that individuals should be offered the opportunity for a personal discussion in which reasons were explained and errors corrected. This flexible, non-confrontational approach worked well, particularly in areas such as credit bureaus, police criminal histories and hospital records.

Our philosophy became: privacy is best protected by flexible guidelines, monitored by an informed and concerned public, and aided by a vigilant permanent watchdog.

The balancing of privacy with other community interests is not a static thing, since it changes over time and geographically.

Politicians, however, believe all society's problems can be solved by legislation. Therefore they pass confrontational, complex, inflexible privacy laws that do not keep up to date, rarely anticipate the problem, and often run roughshod over established, commonsense practices, causing more problems than they solve.

How many people are reassured by the privacy statements telling you that your information will only be disclosed "as authorised by law"? How reassured would they be to know that myriad bodies are so "authorised", when it is not known whom or how many are so authorised?

If we are to remain a vibrant society of confident individuals, personal privacy is fundamental. We must be eternally vigilant, act courageously, and ensure we remain individuals and never become mere "ciphers". The public, and the watchdog, must never sleep.

Bill Orme was head of Australia's first statutory privacy body and is a community activist lawyer.


PRIVACY is about human dignity. It is not about secrecy, but about preserving our sense of self. We all need private time and private space in which to reflect, share intimacies, express joy or grief, or just go about our daily lives.

Even public figures - regardless of whether they choose a public life - deserve the freedom to work out at the gym, take a shower or seek medical treatment, without the fear of exposure that can bring ridicule or humiliation.

Privacy is also about what we choose to share of ourselves. What you tell your work colleagues may be very different from what you reveal to your GP or your partner. What better example do we have of modern privacy in action than social networking sites, on which members actively construct their identities, by choosing what about themselves they reveal to their friends, to friends of friends, and to the world at large? You may question whether these choices are always well-informed or wise, but they are choices nonetheless.

Privacy must of course be held in balance with other public interests, but I don't believe that we must necessarily trade our privacy in exchange for more security, or better healthcare, or the benefits of technology. The protection of privacy is often essential to securing other public benefits.

For example, research has shown that many people will avoid seeking medical treatment if they believe their privacy will not be respected - especially teenagers, and adults with sexual health, mental health or substance abuse concerns. Both public and individual health outcomes are best served when privacy controls are robust and trusted. As we await the introduction of shared electronic health records, the Facebook generation will expect finely calibrated personal controls over who can see what of their health information. The expected public health benefits of shared e-health records depend on high levels of participation, and therefore public trust in the way privacy will be protected.

Privacy is a value which enables each of us some choice or control over how our personal information is used, and how our behaviour or communications are monitored. It is as relevant today - in this age of social media, e-health records and celebrity gossip mags - as it ever was.

Anna Johnston is director of Salinger Privacy. She was previously deputy privacy commissioner of NSW.


I HAD a call from a newspaper journalist last week who had heard a rumour I was about to blow the lid on the tawdry past of a certain cricket star's wife. Apparently I'd hired a computer hacker; a trained "Facebook specialist" with the ability to recover profiles well after they had been taken down. As such, I was in possession of some hot photos which the couple were nervously expecting to see in Woman's Day.

I had a chuckle to myself during that call - I just love that the Gen Y's in my office are gaining reputations as genius codebreakers! It was no accident though. I didn't hire them for their spelling, that's for sure; it's their Facebook-keeping skills I need.

The reporter was right, I am in possession of some information on the cricketer's wife, but it didn't take an ASIO spy to uncover it. One of my "hackers" took about 20 minutes trawling social networking sites to find it. The cricketer's wife had taken down her profile but by getting in quickly and contacting her friends, we had a good starting point.

But the question here isn't whether a celebrity or even a celebrity's wife or partner can expect to achieve privacy - that's a no-brainer. Human curiosity means celebrities will never achieve privacy and nor should they expect it. In one hand you have fame, in the other privacy. It's a tradeoff, and it's why I suspect so many celebrities tweet; they have accepted they are public property and they are happily running with it.

The question is whether privacy, in its purest, en masse form, is a lost cause altogether. Again, I have only to look to my hackers for the answer. I can think of only a handful of occasions where I've asked my staff to track down someone and they haven't been able to do it. One was just this week and when I demanded to know why we couldn't find the missing piece of our latest amazing crime story, my news editor meekly replied, "It turns out she's in witness protection."

As a frustrated young cadet journalist scanning electoral rolls and knocking on one door after another until I had the right "Andrew Smith" or "John Jones", I might have argued that people who want to remain anonymous easily could. But now that we facebook, tweet, join forums, email and blog - and in doing so can get closer and quicker to anyone in the world - it's not just celebrities faced with a tradeoff, it's all of us. If we want the best of the world's communications, we can wave goodbye to privacy.

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