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The Forum > Article Comments > The limits of freedom > Comments

The limits of freedom : Comments

By George Williams, published 18/8/2008

Our privacy should be protected against unwarranted invasion but should be tempered by a legal guarantee of freedom of expression.

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The Law Reform Commission has produced a massive report with close to 300 recommendations for reform of the Privacy Act. It's significant that a piece of legislation this young is seen to need such wholesale changes.

George Williams had distilled some of the key issues for which I am grateful. What a calm rational contrast to the rant by Mirko Bagaric a few days ago.

I agree with Williams on the need to balance any new right to privacy with equivalent rights to freedom of expression and freedom of the press. All these freedoms need to be considered in relationship to one another so that one freedom is not seen to be out of kilter with others.

The media can't have it both ways - there can't be total freedom of the press but no right to privacy. Nor can there be a total right to privacy but no right to freedom of the press.

Getting the balance right will never be easy but we should give it our best shot.
Posted by Spikey, Monday, 18 August 2008 12:55:43 PM
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It appears obviously to me that George Williams albeit being a Professor of law lacks proper understanding of what the (federal) Constitution is about when he stated;
QUOTE
Because Australia does not have a national charter of rights that equally protects fundamental rights such as speech and privacy
END QUOTE
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As the Framers of the Constitution stated;
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) Mr. CLARK.-
QUOTE
for the protection of certain fundamental rights and liberties which every individual citizen is entitled to claim that the federal government shall take under its protection and secure to him.
END QUOTE.
.
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are intimately allied to this question.
END QUOTE
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HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. DEAKIN.- In this Constitution, although much is written much remains unwritten,
END QUOTE
.
As a CONSTITUTIONALIST I interpret what the Framers of the Constitution intended and amended with successful referendums and not what contemporary views might be by judges and others.
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If one were to explore the true application of the constitution you will find, as I have published in my various books in the INSPECTOR-RIKATI® series on certain constitutional and other legal issues that the Human Rights provisions of the European Union in fact also apply to the Commonwealth of Australia.
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On 19 July 2006 the County Court of Victoria upheld my constitutional submissions against the Crown (Commonwealth) where they were all left UNCHALLENGED by the Crown.
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The issue therefore is how to apply constitutional powers appropriately. For this we need an OFFICE OF THE GUARDIAN, a constitutional council, that advises the Government, the People, the Parliament and the Courts as to constitutional powers and limitations, rather then political motivated views of a leader of a political party deciding what is or is not constitutionally applicable, or judges motivated by inappropriate considerations.
Posted by Mr Gerrit H Schorel-Hlavka, Monday, 18 August 2008 2:03:10 PM
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Having spent some time (with the co operation of my friends) trying to draw info on them from the web using basic instructions that can be found on the net, it became obvious that most people have a lot more on them easily available than they would be comfortable with.

The question is more than what information a company should be allowed to release, but what people should be allowed to use, as often one needs some inform

The most common invasion of privacy, which need not be IT related, is the sales call to your house. A no call list is an example of a control mechanism.

The fact that I want my number to be public so that friends and family can find it, does not mean that I want charities to call.

I would prefer that whilst companies should continue to strive to keep information private from those that are unsrupulous, public domain information should not be assumed to be free for any one to use as they wish.
Posted by Shadow Minister, Monday, 18 August 2008 2:24:43 PM
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Privacy protection is an illusion cherished by all who have yet to learn that most of our personal details regarding telephone numbers, email addresses, health and accident insurance details, our banking transactions, the money we have saved or invested in shares here and abroad, all our soul-barings via the Tax Office, our driving licences and all our breaches of law are all a matter of public record. In fact, these personal details that go to the heart of our cherished privacy requirements are being bought and sold in the market place. Telemarketers know who we are and what our needs are, must be or should be.What else is there that isnt on public display?

When they finally come to know where we crap,how we crap and if and when we crap then we are all well and truly in the poo!!
LOL!!
Privacy indeed.

socratease
Posted by socratease, Monday, 18 August 2008 4:38:08 PM
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The article treats all types of information equally. But from a practical there are really two types. There is the hidden camera / media type, which has all that icky free speech versus privacy debate associated with it. And then there is the information you hand over to business like your employer, your bank when getting a loan, and even Ticketek when you want to buy or sell something.

Unlike the other sort, how business information should be handled is clear cut. It should never leak, and for efficiencies sake it has to flow easily. No one wants to have to read every Tom, Dick and Harry's privacy statement just to see if handing over their details is safe. So it must legislated. The legislation will only work in practise if the cost of cleaning up the mess created by a leak is born by whoever stuffed up. So if a firm leaks your bank account details the account is syphoned, then the firm is responsible has to make good any losses. And that won't work unless it is mandatory to notify everyone effected by a leak.

To a nerd like me the other interesting distinguishing feature for information like this is how it is obtained. Business information is given freely - but you retain control of it. The other type is in the public domain. You get to decide whether you want to put it in the public domain, but once you do you loose control over it. Unlike business information the debate isn't about what the business can do with it once you hand it over, it's about how it gets into the public domain in the first place. Posting pictures from a hidden camera of you in the loo is a definite no-no, as is I presume riffling through your garbage while its on your property. What about when its on the curb? How about when you litter the side-walk?

They are tricky questions, but they don't apply to business information. That is why the two cases should be treated separately. Unfortunately the article didn't.
Posted by rstuart, Monday, 18 August 2008 5:55:13 PM
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I think freedom of expression trumps privacy every time. I distinguish between several fields of privacy because it's not one whole issue as this report or debate seemingly makes it out to be. government->citizen, private enterprise->citizen, citzien->citizen are different.

If you are in a public space or easily observed from one, or sharing one with someone, you have no right to privacy.
Posted by Steel, Tuesday, 19 August 2008 12:40:03 AM
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"If you are in a public space or easily observed from one, or sharing one with someone, you have no right to privacy".

Sorry I can't agree Steel. I don't think that Nicole Kidman's job for instance makes her and her family, fair game everytime she goes out in public for the media. I also don't think that the pollies by entering public life have given up the right to have some sort of normal existence, ie shopping, taking the kids to sport, without someone lurking with a camera to catch them in their tracky dacks.

People not in public life are suffering some too. I'll never forget my partner trying to look cluey at the dump on something he knew nothing about when ambushed a news crew, when dropping a load off. Shamelessly they ran him as the expert comment with no attempt to identify him - fortunately while disconcerted, he laughed. I like to sit and listen in public events sometimes. For a while there the poliferation of camera's getting stuck into filming the audience right to closeups reached the level of unpleasant at some of the things I went too. While it could be argued that it was harmless and I was not being injured in anyway, it was invasive and distracting. Being in public doesn't automatically make you camera fodder in my book.
Posted by JL Deland, Tuesday, 19 August 2008 3:31:58 AM
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Media Intrusion....

If the media becomes too intrusive to an individual.. the individual has a right to be equally intrusive of the person who wrote the story.. and run a protest outside their home....

They have a right to search images on the internet of the Media Executives..and raise speculative questions about their lives and behavior... including putting 'tabloid' like headlines and the images of such people on line.....

"Senior Media Executive accused of Drug use" with a very large picture of the Chairman of FairFax on the same page..but of course..the 2 stories are unrelated... this is how the Herald Sun does it's front pages on a daily basis.

So...those who 'probe' our privacy..should realize that in todays world.. their's can be also.

The higher the position.. the more images of them that most likely exist.
Posted by Polycarp, Tuesday, 19 August 2008 8:23:05 AM
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Privacy is a human concept, and as such is an artificial construct.

A society cannot function without connections between individuals, and the more a person interfaces with society the more treads she/he leaves open to the world. In fact the only way to ensure privacy and to prevent the information being available to all is to live as a hermit on an island.

If one cannot exclude information from the public domain, then one has to make rules as to what you can do with it, trying to balance the right to privacy with the right to freedom of speech and expression.

As the right to freedom of speech and expression is designed to allow anyone to have his say and to publish information in the public interest, and the two controls on this should be the law of libel / slander, and the laws regarding privacy.

When one sells pics of one's babies for millions, one cannot expect protection with regards the rest of one family life, but for the rest of us plebs, our private lives should be our own domain.
Posted by Shadow Minister, Tuesday, 19 August 2008 9:55:16 AM
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This isn't idle scare mongering.
Privacy debates are more often driven by myopic reasoning be that ideological, academic or plain ignorance than reality. That’s scarier!
People would be stunned at what information is commercially available if one knows where to look. Information is in its self is benign but it’s the actual/probable abuses are where the problem lies.

Proper crim can gain information on :
• How ‘worthwhile’ you and/or home are to rob.
• What expensive items you have.
• Who lives there, probable movements etc.
• Knowing exactly what and where your security is. Even alarm systems are vulnerable and more.
Don’t kid yourself that only the rich are targets, rich is a relative term.
Knowing how and when to bully…Just get behind on a loan even from the big boys to discover this. Late night threatening phone calls, intimidation all tactics used and then there’s corporate maliciousness.
Where it get really scary is when we’re talking kidnap targets or worse.

Why should richer families be at more risk because one member is “news worthy?”
Everyday families are vulnerable, particularly children are at risk.
• Explain why relatives particular children are worthy of exposure and subsequent harassment because a parent/close relative is positively or negatively “news worthy”?
• Why should “public people’s families” not be able to join in public activities like every one else?
I think it all comes down to the definition of “news worthy”. One is entitled to ask how much detail is too much… does the public really need to see blood on pavements or mangled wrecks with names to get the story? Consider the family.
How appropriate are neighbours’ comments, especially if they didn’t actually see anything.
The media today is simply a business and exposes are more to do with their interests than the public’s. Of course they’ll scream.
Consider the articles on Murdock’s wife that he used his corporate might to crush? Good for the chooks but not for the ancient rooster?

One can’t legislate for every possibility/probability but a clear charter is the next best choice
Posted by examinator, Tuesday, 19 August 2008 10:23:45 AM
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examinator: "Everyday families are vulnerable, particularly children are at risk."

examinator, your responses are usually well thought out. But in your last post ... well in it you reduced yourself to using a "think of the children" argument.

For the life of me, I can't tell whether:

1. You have suffered a brain explosion, or

2. You are trolling.

Care to say which it is? I am going to look like a real doofus if I respond as though it is a serious attempt at reasoning through the issue and you are just pulling my chain.
Posted by rstuart, Tuesday, 19 August 2008 4:14:07 PM
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I just saw on the TV news, Princess Mary down in Hobart, looking extremely uncomfortable as she was filmed buying nappies at a Chemist. Clearly totally newsworthy stuff - though I seemed to have missed the bit on what was happening in Georgia, or maybe that's down the news list.

Can't see how it enriched her day, can't see how it enriched mine, and I wondered if it made the people doing the filming felt slightly dirty.

Don't know what the solution is. Maybe the Packers and Murdoch's should insist in the same level of behaviour from reporters covering other high profile families that they get for their own.
Posted by JL Deland, Tuesday, 19 August 2008 5:59:52 PM
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'If you are in a public space or easily observed from one, or sharing one with someone, you have no right to privacy".
'

Free speech and the law are not in competition; the former only abides via the later. IOW, all things comes under the law - a public figure's rights are also under the law. While one can make comments and take a photograph of a public figure - only when they are in the public domain, as with a public building or a sun set - they cannot assume the law in their hands and do whatever they like.

A public figure does have a right to privacy; one can critique on their public works, such as with a movie star or politician; but one cannot physically touch or slander that person inappropriately and assume no onus from the law. All that has occured with a public figure, is certain assets and their works have fallen into the public domain, and that aside, they have full privacy rights which remain inseperable from one's inalienable human rights.
Posted by IamJoseph, Tuesday, 19 August 2008 9:00:53 PM
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rstuart,
Thank you for your kind (?) comments (I think?).

A few points that may help you to decide.
• As my nom de plume indicates I try not to preach or convert others to my opinions rather EXAMINE the logic, completeness and context of what is said.
• Therefore they are contextual an attempt to ADD to comments already made .
• Likewise I try to or expand my previous comments on long running variations of the subject. Constant repetition of the same points is tantamount to preaching. Hence when I exhaust a line or its simply causing circular arguments I “END or Bye”

With regard to the issue of children.
• Years ago I was a founding member of a state’s Youth Line. About 40% of the calls were about being teased/bullied or publicly harassed on issues about which they had no control . Often because of someone else’s actions (family members actions was highly represented).
• Anecdotally, I remember talking down a suicide attempt by a 12 yo girl who was being bullied because her father (a high school teacher) had been sprung having an affair with a near 18 yo student (1month short). Was this story public need? Three months later after another distressing burst of publicity she succeeded.
• I have dealt with many other similar calls if less dramatically climactic .

As it would happen (limited experienced councilors) I was also a regular "graveyard shift" councilor (10pm to 7 am a time that received the most traumatic calls) on lifeline too and received a call from the mother. She was falsely accused of knowing and allowing her husband's activities had to move to the city and have longterm professional counselling because the reactions of her neighbours and people in the town.

Most ‘good citizens’ don’t seem to consider the effects (including bullying at school) of such publicity has on the children.
Children tend to reflect family prejudices. You decide which I am Brain explosion or trol. Do let me know what you decide.
Posted by examinator, Thursday, 21 August 2008 9:40:47 AM
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IamJoseph, you are absolutely right (in theory) but the reality tends to be somewhat different.
There is a difference between a crowd shot and targeting an individual.
My point is that in PRACTICALLY observance of these rights are being ignored for profit.

Everyone,
Papparatsi should be banned as should the publishing of this type of pap.
It tends to go beyond rights to privacy and into the rights of parents, families and wellbeing of children and associated others.
If you have ever tried to cope with multiple children on or after a long day and how wearing or pressure laden it is, ask a mum. As a (new) parent you are painfully aware of your (self perceived) inadequacies. The last thing you need is public scrutiny or criticism of your parenting skills from the public.
Children learn how and when to pressure parents in public the consequences for the future can be unfortunate.

Average teenagers have enough problems dealing with raging hormones and life without the constant pressure of constant public scrutiny.

Have a look at the child stars and the problems that these pressures have engendered.

Imaging Duchess Fergie’s brood trying to come to grips with constant comment about their weight/looks?

It is ridiculous to try and legislate for all issues but there has to be rational and fair boundaries to the level of the public’s intrusive vicarious voyeurism. The public’s right to know needs definition.
In real terms freedom of the press in this type of intrusion solely to make money and nothing to do with the public’s (it simply doesn’t) need to know. Such issues should be banned unless the parents choose to allow it and then only for that specific circumstance. To do otherwise undermine their parental rights…they have primary responsibility. Would anyone out there tolerate interference in your homes/child raising? I doubt it!
Posted by examinator, Thursday, 21 August 2008 10:48:09 AM
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