Last night's episode of Media Watch on ABC1 raises the question over whether or not a Right To Privacy should be enshrined in law, following the wake of the News Of The World phone hacking scandal.
According the the Human Rights and Equal Opportunity Commission, although Australia has ratified and adopted the Universal Declaration on Human Rights, "The Universal Declaration is not a treaty, so it does not directly create legal obligations for countries."¹
Obviously then question then is, if not, why not?
Framers of the Australian Constitution were careful not to include a Bill of Rights in the document for fear of limiting the rights that citizens have to the bullet points within the document. Notwithstanding the fact that there was already a Bill of Rights Act (1689) which is legally binding because it existed as statute law before 1901 has hasn't been formally repealed.
So then, we reach a tricky situation where there is a Right to Privacy according to the UN but there isn't actually a legal standing for that right. The right is explained in Article 12:
"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."²
Maybe the right itself doesn't need to be spelled out in as many words, though there is certainly a case to be made to enshrine into legislation, then ethical standards for parties who wish to infringe on people's privacy.
I don't think that the Right as contained in the UDHR only just applies to government's infringements. By the word "universal".
The legal trick is to conflate the various digital concerns into a new form of property right: a general tort against invasion of personal privacy akin to someone breaking into your property or a home invasion. Conventional private property rights are a foundation of a democratic market economy. But a property right over individual privacy necessarily intrudes into a more basic foundation of an open society: free speech.
- Michael Stutchbury, Economics Editor , The Australian, 26th July 2011.³
I find it really curious that in yesterday's The Australian (26th Jul, 2011) the front page led with an article by Peter Van Onselen the Contributing Editor, asking the question of what poltical parties do with personal data and with a small graphic bump "Protecting Your Privacy" yet the editorial on page 13 by Michael Stutchbury, Economics Editor suggests that the tort of an invasion of privacy somehow negates the Right to Free Speech.
Seeing as both the Right to Privacy and the Right to Free Speech both exist in the Universal Declaration on Human Rights as Articles 12 and 19 respectively, I would like to know if The Australian as an entity thinks itself of having a higher and nobler purpose than the astute diplomats and statesmen who founded the document in 1948 after having passed through the bloodiest conflict the world has ever seen, with the intent of making the world a safer and better place than they left it.
The way I see it, the issues of Privacy and Free Speech are separate. I think that what constitutes the line around which the issue of Privacy is drawn is pretty obvious. If someone has written something, or posted photographs to MySpace, Facebook, Twitter or elsewhere on the internet then those items have been published voluntarily. An invasion of privacy is where information which includes photographs taken in an invasive process or without permission implies that that information was not published voluntarily. An invasion of privacy is tantamount to theft.
I think that the Right to Privacy is an extension of someone's basic Right to Human Dignity. Whether you believe that that is a result of having it endowed by your creator (as I do), or as a result of the commonality of Human existence is moot but the point remains that all Human Rights are an extension of someone's basic Right to Human Dignity.
I think what we've seen particularly in the wake of the News Of The World phone hacking scandal and the reason why people are so offended is precisely because that Human Dignity has been violated.
I also reject outright this claim by Michael Stutchbury.
"The new digital technology also reduces the gatekeeper role of the traditional media: anything seems to go in social media."
Well, no it doesn't. Most journalists belong to the Australian Journalists Association; members are required to follow a code of ethics.
Guess what? Ethics also extend from the basic Right to Human Dignity. Please don't forget this.
¹ - Link: http://www.hreoc.gov.au/human_rights/UDHR/what_is_UDHR.html
² - Link: http://www.un.org/en/documents/udhr/index.shtml#a12
³ - Link: http://www.theaustralian.com.au/national-affairs/commentary/lawsuits-no-way-to-defend-privacy-or-free-speech/story-e6frgd0x-1226101597493