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section heading icon     media, privacy and public

This page considers the shape of privacy in the 'infotainment economy', considering questions about media spectacles, self-regulation, 'community notification' regarding offenders and outing.

It covers -

  • introduction - some questions about media, government, community and the individual
  • the culture of spectacle - are celebrities and the stigmatised fair game?
  • investigative journalism
  • regulation - consumers, government and self-regulation by the fourth estate in the networked economy
  • rights of publicity and personality -
  • outing - principle and practice in self-disclosure and forced disclosure
  • offender registers - questions about online crime registers, disagreement about spent convictions and 'Megans Law' schemes

section marker     regulation

Most privacy regimes make particular provision for journalism, typically on grounds of free speech or a community 'right to know'. In practice there is substantial self-regulation, marked by

  • respect for media proprietors ("freedom from the press belongs to those who own a press")
  • community acceptance, even encouragement, of activities that breach the privacy of celebrities ("no privacy is the price you pay for fame") or stigmatised groups
  • concern that stronger privacy law and practice will restrict free speech
  • expectations that journalists and media organisations will adhere to professional codes and act responsibly

For Australian regulation see Mark Armstrong's Communications Law (Melbourne: Oxford Uni Press 1999).

The Australian Press Council's Privacy Standards statement notes that the 2001 federal legislation

provides an exemption for acts done or practices engaged in by a media organisation in the course of journalism, if the media organisation is publicly committed to observing standards that deal with privacy in the context of the activities of a media organisation, and those standards have been published in writing either by the organisation or a body representing a class of media organisations.

It indicates that

In gathering news, journalists should seek personal information only in the public interest.

In doing so, journalists should not unduly intrude on the privacy of individuals and should show respect for the dignity and sensitivity of people encountered in the course of gathering news ...

Public figures necessarily sacrifice their right to privacy, where public scrutiny is in the public interest. However, public figures do not forfeit their right to privacy altogether. Intrusion into their right to privacy must be related to their public duties or activities

and that

the media organisation should provide a reasonable and swift opportunity for a balancing response in the appropriate section of the publication.

A media organisation should make amends for publishing any personal information that is found to be harmfully inaccurate.

Critics have responded that in practice such aspirational statements are regarded with a shrug or a wink. In 2005 the Australian Communications & Media Authority (ACMA) released its Privacy Guidelines for Broadcasters (PDF), offering broad and selective guidance for commercial broadcasters and for the public sector broadcasters.

For New Zealand see Media Law in New Zealand (Auckland: Oxford Uni Press 1999) by John Brown & Ursula Cheer. Insights into the UK regime are provided by Joshua Rozenberg's Privacy and the Press (Oxford: Oxford Uni Press 2004).

section marker     rights of publicity and personality?

Proposals for a 'right of publicity' or 'right of personality' are situated at the intersection of intellectual property and privacy.

section marker     outing

Some sense of complexities is provided by considering outing, an essentially political practice involving involuntary public disclosure of sexual preferences or relationships in environments where particular activities may be illegal (as in Tasmania until last decade) or deeply stigmatised.

Critics of outing characterise the practice as both a fundamental breach of privacy and an attack on the good manners that form the basis of civil society. They argue that an individual's private life is his/her own, noting continuities with the past in which police, blackmailers, salacious journalists or rivals 'exposed' an individual's shameful or illegal behaviour.

Proponents, in contrast, argue that outing is a mechanism for personal and community liberation, with exemplary individuals such as politicians, judges, sportspeople and business leaders having an obligation to come out of the closet and thereby erode perceptions that GLBT people are 'inferior' or that heterosexual relationships are the 'default orientation'.

Opening the closets by 'naming and claiming' has thus been characterised as a foundation for building a successful civil rights movement: as GLBT preferences are not shameful revealing those preferences simply indicates an unremarkable part of the individual's life, a part in common with much of the population.

Activist Michaelangelo Signorile commented that

Average people have been outed for decades. People have always outed the mailman and the milkman and the spinster who lives down the block. If anything, the goal behind outing is to show just how many gay people there are among the most visible people in our society so that when someone outs the milkman or the spinster, everyone will say, "So what?"

He somewhat disingenuously responded to criticism of outing as a breach of privacy by asking

How can being gay be private when being straight isn't? Sex is private. But by outing we do not discuss anyone's sex life. We only say they're gay.

Proponents have also noted the hypocrisy of some religious and political groups. In the US during 2006, for example, Republican congressman Mark Foley and the Reverend Ted Haggard (president of the gay-hostile National Association of Evangelicals) were outed.

Salient works are Contested Closets: the Politics and Ethics of Outing (Minneapolis: Uni of Minnesota Press 1993) by Larry Gross, Gay Ideas: Outing and Other Controversies (Boston: Beacon 1992) by Richard Mohr, Making Trouble: Essays on Gay History, Politics and the University (New York: Routledge 1992) by John d'Emilio, The Homosexualization of America (New York: St Martin's 1982) by Denis Altman, Out of the Closets (Englewood Cliffs: Prentice Hall 1972) by Laud Humphreys, Outing: Shattering the Conspiracy of Silence (New York: Haworth 1994) by Warren Johansson & William Percy, Queer in America: Sex, the Media, & the Closets of Power (New York: Random 1993) by Michelangelo Signorile and Coming Out: Homosexual Politics in Britain From the Nineteenth Century to the Present (London: Quartet 1990) edited by Jeffrey Weeks.

For historical and contemporary perspectives on discrimination see Homophobia by Byron Fone, Homophobia: How we all pay the price (Boston: Beacon 1992) edited by William Blumenfeld, Straight jobs, gay lives: Gay & Lesbian Professionals, the Harvard Business School & the American Workplace (New York: Scribner 1995) by Annette Friskopp & Sharon Silverstein. For stigmatisation and recognition in the media see works such as The Celluloid Closet (New York: Harper & Row 1981) by Vince Russo, The Making of the Modern Homosexual (London: Hutchinson 1981) edited by Kenneth Plummer and other studies highlighted in the discussion of film censorship here.

section marker     offender registers

Questions about the shape, history and effectiveness of 'community notification' offender registers are explored in a supplementary note elsewhere on this site.

The sobering 2001 paper 'The War on Sex Offenders: Community Notification in Perspective' by L Hinds & K Daly in The Australian & New Zealand Journal of Criminology commented that

'Community notification' is based on the deceptively simple belief that if you could identify all the "bad" people, you could protect your loved ones from harm

That notion has resulted in a range of legislation - often tagged as 'Megan's Laws', after the US propotype - that allows community access to offender registers maintained by law enforcement or other agencies. Those registers typically centre on sex offences and are underpinned by requirements that the offender notify the agency of movements (eg a change of residential address or intention to travel overseas).

The notion has also resulted in a range of private print/online publications, sometimes on a clearly commercial basis, that draw on media reports of offences. Such reporting and the resultant publications may not be accurate.

Community and media responses have varied. A vehement 'name and shame' campaign by UK tabloid the News of the World appears to fomented hysteria that saw vandalism, death threats and assault on actual or supposed offenders. One utterly respectable paediatrician was thus driven out of town after 'concerned citizens' failed to differentiate between paediatrics and paedophilia.

There has been surprisingly little detailed research about community attitudes to 'criminal history' information, online publication and privacy. One major study is the 2001 Public Attitudes toward Uses of Criminal History Information report (PDF) from the US National Consortium for Justice Information & Statistics (NCJIS).

That report concludes that although there is substantial support for public availability of particular categories of records where there is a perceived public benefit/safety rationale, there is significantly lower support for more 'private' uses. In general, respondents favour access by employers and government agencies but do no support access to arrest-only (or arrest without conviction) records. The findings are consistent with a range of studies about US consumer attitudes to privacy.

The report suggests that, when not fretting about whether Elvis was rubbed out by the FBI or abducted by aliens in search of credit data, most US citizens view criminal history records as confidential information and favor some restriction in access. Surprisingly, given taditionally high levels of distrust of government, most of Westin's respondents are more wary of business misuse.

47% supposedly prefer a "partially open system" in which only conviction records are freely available. 37% support a restricted system, where only selected users have access. 12% favour a wholly open system in which arrest and conviction records are freely available. 90% preferred State agencies not to web-publish criminal history information that is already a matter of public record, for example that has appeared in newspapers.

Most support some access to conviction records by nongovernment entities for noncommercial purposes. Nine out of ten would allow restricted access to conviction records by potential employers, with 55% indicating that access should be tied to the nature of the position, such as handling money or dealing with children. A majority endorsed at least some access by organisations that work with children (88%), by the defence forces (82%) and insurance companies investigating fraud (76%), although there is markedly lower support for banks (32%) and credit card providers (21%).

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version of December 2006
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