Last week, on the same day Nine received a damning report into its culture of bullying and harassment, Grace Tame was being pestered at a Bondi Beach café. As reported by The New Daily and the Daily Mail, Tame was seated at a table with a colleague when paparazzi with large lenses started taking photos at close range.
‘Why are you taking my picture?’ Tame asked.
‘Because you are in a public place,’ a photographer said.
‘I’m not working right now,’ Tame said. ‘Do you understand I’m an advocate for survivors of child sexual abuse? The whole point of what I do is to try to call out this sort of abuse of somebody’s privacy and agency and you’re just recreating that dynamic.’
Tame was now standing, with other café patrons alongside her. She asked them to stop, but they didn’t.
‘Do you know what public means?’ asked a photographer.
‘Yes,’ Tame responded, ‘This is not right, what you’re doing.’
Legally, the photographers don’t need Tame’s consent to photograph her in a public place. There are exceptions, of course, such as if they were upskirting. In that case, they’d be breaching s 91P of the Crimes Act, ‘Record intimate image without consent,’ and they could be jailed for three years. Generally, though, taking photos in public is lawful.
In the US, by contrast, you can sue for invasions of privacy, and the law recognises that there can be privacy in public. This recognition dates back to a 1967 case called Katz, where the issue was the legality of FBI phone taps. The Supreme Court held that even in a glass public phone booth a person could justifiably expect privacy.
In Australia, you can’t sue, but that looks set to change after a long, slow build-up. In 2014, the Australian Law Reform Commission released a report that recommended the introduction of a statutory tort for serious invasions of privacy. Following the US, it proposed that a person would only be able to sue where they had a ‘reasonable expectation of privacy’.
Last month, the Privacy and Other Legislation Amendment Bill was introduced to Parliament. If passed, it will introduce such a tort. As the Explanatory Memorandum summarises: ‘Individuals would have a cause of action if they suffer an invasion of their privacy, either by an intrusion into their seclusion or by misuse of information, when: a person in their position would have had a reasonable expectation of privacy in all the circumstances; the invasion of privacy was intentional or reckless; and the invasion of privacy was serious.’
Would Tame have been able to sue successfully under such a law? Unlikely. Even if she had a reasonable expectation of privacy, it seems unlikely a court would categorise the invasion as serious. What’s more, journalists are exempt. In clause 15, the bill defines ‘journalist’ as a person who: ‘(a) works in a professional capacity as a journalist; and (b) is subject to: (i) standards of professional conduct that apply to journalists; or (ii) a code of practice that applies to journalists.’ By this wording, a reporter for the ABC or News Corp would be exempt; however, an independent paparazzo subject to no such standards or codes might not be, although they might well be a member of the Media Entertainment and Arts Alliance, and hence bound by the MEAA Journalist Code of Ethics.
The reason for the exemption is that, supposedly, journalists will follow these standards and codes. Generally, these standards and codes are worded to balance privacy and the public interest. In theory, that’s great. In practice, Australia has a mess of standards and codes to oversee journalists. And the enforcement of these codes and standards is, at best, erratic.
A further issue is whether celebrities are entitled to privacy, given their lives are, by definition, public. This led Paul Chadwick to identify ‘five categories of fame’. As Chadwick wrote in 2017, ‘The type of fame, considered in combination with whatever public interest factors may be relevant in the particular circumstances, can help in making decisions about the degree of justifiable intrusion.’ Tame found fame by chance, as a survivor of childhood sexual abuse. For Chadwick, this is significant. As he writes, ‘Complexities are increasing over the effect on the privacy of innocent parties, especially victims, of media coverage of legal processes.’
For these reasons and more, the due protection of privacy requires a well-calibrated balancing act. The bill addresses this by recognising there are often competing public-interest considerations in decisions about privacy. As the Explanatory Memorandum notes, ‘Where one or more competing public interests are identified by a defendant (for example, the public interest in freedom of expression), the plaintiff must also satisfy the court that the public interest in protecting their privacy outweighs those competing public interests.’
This isn’t the first time Tame has been the subject of unwanted attention, both by the media and by ‘thugs’ responding to her work as an advocate for sexual assault victims. As Tame recently told an interviewer, she has been followed home, involved in a car chase, and had people rummage through her bins. Indeed, she says her childhood sexual abuse was compounded by the media’s treatment of her case when she was a teenager, which led her to move overseas at age 18.
‘It wasn’t just the experience itself of being abused over a period of time by a very sadistic, psychopathic individual, but it was the experience of that being reported on so erroneously, so misrepresentatively, and then those rumours being so pernicious, I didn’t want to be in my home any more. I became a pariah in my home when I was still a child. It’s very damaging.’
Legally, the issue of policing privacy is complicated. Ethically, it isn’t, at least in this case. The paparazzi should have stopped when Tame asked them to.
Sacha Molitorisz, Senior Lecturer - UTS Law