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JENNY BROCKIE: Have a look at what is happening in one suburban back yard.
DENNIS AND JUDY’S STORY:
JUDY: The backyard upsets me because I find that is my domain. We like to grow vegetables and flowers and we've been watched all the time. Sometimes there might be something on the line and I run out in my nightie and then I realise the camera is photographing me so I run straight inside again.
DENNIS: The rest of the neighbours in our street are all up in arms about this, not just us. They have all spoken to us about it. They feel the same as we do. If we complain, they just put it up.
JUDY: I would like them removed.
DENNIS: Security here has never been a problem. And quite frankly, I don't see why he's got them up.
JUDY: He said, well, you can't do anything about it, there's no law.
JENNY BROCKIE: Timothy Pilgrim, you're the Privacy Commissioner, Dennis and Judy who are sitting behind you there. Is there anything you can do about those cameras on the neighbour's property, that they feel is intruding on their privacy?
TIMOTHY PILGRIM, PRIVACY COMMISSIONER: Under the Federal Privacy Act, it mainly applies to organisations and Commonwealth government entities - what it doesn't cover at the moment is the activities of individual who in that sort of situation may have set up a camera in their own yard, so the Act wouldn't necessarily apply to those sort of activities.
JENNY BROCKIE: So if someone had a camera that was pointing directly at your bedroom or something, could you do anything about that?
TIMOTHY PILGRIM: Under the Commonwealth Privacy Act – no, I could not but there may be State surveillance laws that may be able to help in those sort of situations.
JENNY BROCKIE: Dennis and Judy, we saw how you feel about that there. What are you most worried about with the cameras, because when you look at those cameras, it looks like they're looking down the side of that person's property rather than directly at you, is that right? What are you most worried about Judy?
JUDY: There are five cameras around the house, but what I'm really upset about is the grandchildren being photographed. In our street there are a lot of little children and I don't know if that's a good thing. You're not allowed to take photographs at sporting fixtures. So these children...
JENNY BROCKIE: Have you spoken to your neighbour about it? Yes. What happened?
JUDY: He said there's no law. He can do that.
JENNY BROCKIE: How do other people feel about that? How would you feel about that?
PROFESSOR BARBARA MCDONALD,
JENNY BROCKIE: Okay, Barbara, you're a lawyer, is that the only law they would have recourse to?
PROFESSOR BARBARA MCDONALD: That is one. There are a number of laws that protect privacy indirectly in the common law. That is one of them. An action in nuisance, but it protects people within their own home.
JENNY BROCKIE: Has it before tested?
PROFESSOR BARBARA MCDONALD: Yes, there was a case some years ago where neighbours set up a surveillance camera and lights and every time the plaintiffs went out into their back yard the lights came on and the cameras started rolling and they got an injunction.
SAM DE BRITO, COLUMNIST: What would happen legally if you decided to spray paint the cameras or borrow your grandson's slug gun and take matters into your own hands - Would you be prosecuted for damaging someone's property?
DAVID VAILE, CYBERSPACE LAW AND POLICY, UNSW: That would be vandalism!
SAM DE BRITO: You'd be doing it from your own household so….
DAVID VAILE: Not necessarily, but you're reaching into someone else’s property. Because you don't in many cases apart from nuisance have a right to much about it, direct action yourself often leads you to other problems.
JENNY BROCKIE: So if you threw a towel over it or something, could you be prosecuted for doing that? Not that I'm suggesting anyone should do anything.
DAVID VAILE: People are tempted sometimes to take things into their own hands but because there's no clear legal support for a right to privacy, then often you run a foul of other laws.
JENNY BROCKIE: Do you think it's a breach of privacy Sam, do you think it’s a breach of privacy?
SAM DE BRITO: Yeah, without a doubt - I think it's a clear cut case of breaching someone's privacy. I would hate to live in that situation.
DENNIS: It is not just our back yard, this chap does the whole street, he has one that does the whole cul de sac. So as soon as you come into the cul de sac, he's aware of what is going on. It's every house in our street.
JUDY: Every neighbour is against it - every one in the cul de sac.
JENNY BROCKIE: George, you're the Deputy Mayor in this area, how common is this in the area this covers, how common is this in your neighbourhood?
GEORGE CAPSIS, DEPUTY MAYOR, SUTHERLAND SHIRE: This is very common now. We're getting a lot of complaints because the technology of these things has outstripped the legislation. So Sutherland council has put up a motion to the Local Government Association to get the State Government to pass some legislation so we can put some controls on them, because I mean, council can stop you putting up a balcony if there is a privacy issue or a privacy screen can stop you putting a window in the wrong place. But with these cameras, we can't do anything yet.
JENNY BROCKIE: You have cameras at your place?
GEORGE CAPSIS: But they don't look at anyone, they look at the bird cage. We try and find what rats come and eat the birds.
JENNY BROCKIE: Have you got them outside?
GEORGE CAPSIS: In the back yard.
JENNY BROCKIE: In the back yard! And have your neighbours complained about them?
GEORGE CAPSIS: No, the neighbours don't even see them.
JENNY BROCKIE: Is there a need for law to cover something like this, is there a case and obviously Judy thinks there is, what do you think Timothy – do you think there’s a case?
TIMOTHY PILGRIM: There are certainly a number of areas that the Federal Privacy Act doesn't currently cover, one of them, as I said, is this issue about - if an individual is doing something such as, having surveillance cameras, there can be a gap there and I think it is important that we start looking at alternatives so that people can have their privacy strengthened by changing the laws.
SAM DE BRITO: What about if someone set up a camera in their own household and they wanted to survey their nanny, for example or they wanted to see what the tradesmen were doing while they were finishing the renovations, are there any laws against that sort of stuff?
TIMOTHY PILGRIM: Well certainly, under the Commonwealth Act, I have to refer to that, no there certainly wouldn't be particular protections in that regard. It's interesting, because you then start to get into the area of employment and what sort of protections there are for employees, for example, under the Commonwealth Law at the moment in terms of private sector employment, the records of employees are not covered by the Act either.
SAM DE BRITO: You can survey an employee if you wished to as well.
JENNY BROCKIE: We've all seen those nanny cams from overseas, at various times you see examples of people doing just that, recording what employees are doing in their houses. Would it be law, would it be legal?
PROFESSOR BARBARA MCDONALD: I think certainly it might be a breach of the employment contract and implied breach of the employment contract between them. But I think that is an area where it is quite difficult.
JENNY BROCKIE: George.
GEORGE CAPSIS: It’s a good thing to have cameras for security purposes, it's only where they are looking into someone else's privacy and violating other people’s privacy where they are a problem. I can't see why councils can't have some teeth to regulate. Why should people have to go to court on matters like this? It's expensive, it’s vague, it’s not a good process. If there were some sensible regulations in place, council could then go and adjudicate these issues.
JENNY BROCKIE: Let's look at another example - Something different. Cherine, you are an artist, talk us through how you took these photographs we're looking at now of people sleeping in a park?
CHERINE FAHD, ARTIST: I was living in, on the 6th floor of an apartment in Kings Cross which overlooked a park that wasn't used by anyone except for drug users and homeless people in the area. Occasionally you had someone come and sunbathe there. But over the course of three years that we lived there you know, it was just this every day, you know, flow of people, and I just started photographing them and it came about after photographing and doing a similar series in Paris, where I photographed people unawares in everyday situations.
JENNY BROCKIE: Did you know who they were?
CHERINE FAHD: No.
JENNY BROCKIE: So you don't actually know, as you describe, whether they are druggies, I'd like to clarify in case someone sees themselves there. "I'm not a drug user". "Hi mum"! But it raises the question - Did you get permission from the people that you photographed?
CHERINE FAHD: No, I didn't. The reason I would describe the people that came to this park like that, was because you would often be standing at the window watching the activities occurring.
JENNY BROCKIE: You didn't ask their permission?
CHERINE FAHD: No.
JENNY BROCKIE: And the photos have been exhibited?
CHERINE FAHD: Yes.
JENNY BROCKIE: They've been in an exhibition?
CHERINE FAHD: Yes.
JENNY BROCKIE: Did any of the people contact you afterwards? Have you had any contact with any of them at all?
CHERINE FAHD: No. In the actual photographs themselves the people are quite anonymous. This photograph in particular, this one more than any other shows the face of the two people, but in the others they're sleeping. So you don't really see them and that was a decision I deliberately made in terms of editing.
JENNY BROCKIE: How would people feel about being photographed sleeping in a park and ending up in an exhibition in a photographic exhibition? David?
DAVID VAILE: I don't think I would like it. I think one of the problems is that in the past when photography was something that was relatively expensive, when it wasn't digital, no body worried too much about things happening in public spaces out in the open. The problem is that the more it's digitised, the more it is networked, the more it is put on national television like this, the circumstances have changed and the potential for embarrassment or humiliation or whatever potentially magnifies. So it's something that maybe in the past really the circulation of the exhibition of those photographs in a gallery may have had you know, little impact, maybe the people have not seen it. Now you've broadcast them around the country, does that put it into another sphere?
JENNY BROCKIE: Does it put it into another sphere?
MAN: I think if you're going to do it in public, unfortunately that's the risk you take in today's world. We have Facebook, we have everything. I mean, with what we were talking about before, the example of people's backyards - that is a different thing to a public space like a park. Anyone could see you - anyone could take a photo with their mobile.
CHERINE FAHD: The other day I was walking, I was out the front of Museum Station and I had someone cross the road holding a camera and I know I was in their photograph. But...
JENNY BROCKIE: And how did you feel?
CHERINE FAHD: I actually think I might have posed, in a very unposed way and it was funny, because it was, you know, I was aware that they were doing exactly what I've done in the past.
JENNY BROCKIE: What I find interesting about those photographs is, those people are asleep. You're more vulnerable when you are asleep.
CHERINE FAHD: That’s what the message in the work is though, that private action within a public space.
JENNY BROCKIE: Richard?
RICHARD GILBERT, CEO, RULE OF LAW INSTITUTE: I had the misfortune of walking up
JENNY BROCKIE: If we had a law it would destroy…..
GEORGE CAPSIS: If we had the surveillance cameras that we put in walls now too, we don't even know we're being filmed half the time. I guess where the problem would be is that they're broadcast around the place without the people's knowledge. I don't know if they would care really. It's not a good principle.
CHERINE FAHD: If you were photographed in this series, and your face was covered and you were like this, would it bother you?
DAVID VAILE: But these people here, their faces are not covered. They're identifiable.
CHERINE FAHD: But are they really?
DAVID VAILE: Yes. Well, people who know them can probably identify them, they themselves can probably identify them.
JENNY BROCKIE: I'd know if it was me I think.
DAVID VAILE: The issue is though, that they haven't been asked about this.
JENNY BROCKIE: So David, you think there should be a law to stop Cherine from taking those photographs?
DAVID VAILE: I think we need to have a discussion that recognises that the potential distribution, the harm, the permanent publication of things, particularly when they go online, may mean that some of the things that seemed reasonable and seemed commonsense in the past may need to be rethought.
JENNY BROCKIE: Timothy, what do you think as a Privacy Commissioner?
TIMOTHY PILGRIM: It's an extremely difficult balance to get when we start talking about public space. One of the things that I do get concerned about, and what we have had mentioned are surveillance cameras that are in malls and those sort of things, which should be governed by privacy laws and in many places will be. We don't expect to go into a shopping centre, we don’t expect to bump into a trolley and we certainly don't expect to see it on a 'Funniest Home Videos' program later in the night. These are the sort of things that concern me, but I do understand there are important community expectations around being able to have, for example, artistic expression and how we can make sure we get that balance. So it is difficult one to get.
SAM DE BRITO: In the end, if something does end up on 'Funniest Home Videos' or this picture is displayed in a museum, what real damage is it doing to the person? It will be probably forgotten tomorrow. If you're in a public space, unless you're wearing a raincoat on public transport doing what people in raincoats do, why would you be so scared of being photographed?
PROFESSOR BARBARA MCDONALD: We live in an increasingly visual world, photographs tell lots of stories and we expect that. We want a lot of photographs in our newspapers and online, that's the way people get information these days, much more so than the written word.
TIMOTHY PILGRIM: And importantly at the end of the day, picking up on Sam's point, those people also make judgements about it as a result of what they see. They can but those judgements can often be negative. So people should have the ability to know if that information is going to be collected about them and who is making that judgement about them, particularly if it impacts on their ability to go about the rest of their life.
JENNY BROCKIE: And how they are going to be portrayed and how they are going to be described by you, Cherine, as you described these people in these photographs earlier.
CHERINE FAHD: The project itself, it was funded through a NSW grant, NSW Ministry for the Arts Grant, it was specifically looking at homeless people within Kings Cross.
JENNY BROCKIE: So that was the context?
CHERINE FAHD: And the way that they actually had to take their private, what we would consider our private activities and basically live on the street in the way that we would live in our house.
DAVID VAILE: It turns things on its head a little bit because we're saying if you go out into the public, more or less you have to put up with whatever happens. Here may be people who don't have much option, they don't have a nice quiet safe lounge room and they are out there because they have nowhere else to go, or else maybe we're presuming that that is who they are by seeing them in these photographs.
JENNY BROCKIE: We don't know who they are.
DAVID VAILE: In both of those cases, you can't necessarily make all the assumptions about them having given up something by being out in the public.
JENNY BROCKIE: Let's have a look at another example, footage that was taken at the time of the
SAM DE BRITO: Is it tasteful, is it decent, is it something that I would want to happen to my family? No, but it's just the world we live in. Unfortunately that is what news viewers demand. I always give the example of if, for example, a horrible example, a girl was raped and murdered and one newspaper covered the story, and basically it was an unnamed girl, there was no pictures, no quotes from the family, but then newspaper B has her picture on the front page, it has an interview with the parents, ask yourself, which newspaper you will pick up. These are forces that are, yes, driven by the news media, but also about what people care about, what people are moved by. So is it a good thing that we take pictures of people in situations like this?
DAVID VAILE: This newspaper actually contributed to the damage to that person.
SAM DE BRITO: I don't understand.
DAVID VAILE: The further humiliation, the exposure, someone who wanted to go away and to hide.
SAM DE BRITO: That is coming from someone who has never worked in a newsroom.
DAVID VAILE: Excuse me, I have.
SAM DE BRITO: I have done more than 100 death knocks in my life and I have spoken to…
JENNY BROCKIE: Can you explain what a death knock is for people who don’t know.
SAM DE BRITO: Going to people's houses and knocking on the door, and saying, "I know your daughter has just been murdered but would you like to talk about it?" And not for the majority, but for a significant proportion of those people, they do get some sort of release out of it. They do see it as a farewell to their relative.
DAVID VAILE: If they have a choice to do that, that's one thing, but if you come afterwards, saying - you've just been raped, you’ve been humiliated, probably at the lowest point of your life, you’ve been brutalised, now on top of that, for the interest of our millions of viewers we will expose you here...
SAM DE BRITO: Well, what happens is they go clunk and close the door on you. In this situation, I see the point, that the victim does not have the choice.
JENNY BROCKIE: How far is too far Sam? You have covered celebrities, you’ve rivalled through a bar badge bin or two I gather?
SAM DE BRITO: Yes.
JENNY BROCKIE: How far is too far?
SAM DE BRITO: It's a foggy line, I have to say. It's very dependent on how demanding a news desk is. I've done things as a journalist when I was much younger and feeling under more pressure than I probably would do now, there's lines I crossed when I was younger and hungrier.
JENNY BROCKIE: Like what?
SAM DE BRITO: I’ve paid mates to go into a celebrity's room when I was 21. I went through Shannon Doherty's garbage bin in her room and I broke every law possible when I was living in the
JENNY BROCKIE: The whole reason we're talking about this is the phone hacking scandal in the
MATTHEW FINNIS, CEO, AFL PLAYERS’ ASSOCIATION: I think whether you are involved in a scandal or not, or whether you're high profile person, or member of the public, I think that what we're looking for is some real leadership in society, to set benchmarks. So we're not leaving it to the hungry young journalist who decides to compromise whatever ethics he may hold to make his way, but in actual fact there is accountability around whatever decisions may be taken and I think from our point of view, our members very much understand that when they become a footballer, there's a relationship with the media. In fact they rely upon the interest and the involvement of the media to make a livelihood.
JENNY BROCKIE: There is public interest here as well - I mean it’s not all just on one side. It can be in the public interest to find out things that perhaps some of the people you represent don't want to have found out.
MATTHEW FINNIS: I think that is an important consideration, but I think we've got to recognise that not everything that the public is interested in is in the public interest. And there's often I think a distinction between public curiosity and public interest and I think that is where the debate ought to be and I think some real I guess accountability and leadership from a Government point of view, in helping to define some of these moral standards is a debate worth having.
JENNY BROCKIE: Government defining moral standards is an interesting concept.
SAM DE BRITO: The issue I have with you know, strengthening privacy laws is it tends to protect rich footballers or business people, or media moguls. It doesn't protect the powerless, because they don't really have the money to take action in court. So they seem rather toothless because you know, just ask yourself, when with is the last time you saw a Goldman Sachs executive pap snapped in the newspapers. It doesn't happen.
MATTHEW FINNIS: If you look at the case in the
JENNY BROCKIE: Can I get a sense from you of what the Act actually covers at the moment - The Privacy Act?
TIMOTHY PILGRIM: The Privacy Act, to try and put it in a short form, covers the Australian Government Agencies, that is the big Commonwealth departments; it covers the large sectors within the private sector, and it covers credit reporting agencies.
JENNY BROCKIE: It doesn't cover individuals?
TIMOTHY PILGRIM: It doesn't cover individuals and there are a number of other exemptions that it doesn't cover. As I said, it doesn't cover employee records and it doesn't cover political parties and it doesn’t cover journalism and media organisations.
JENNY BROCKIE: It doesn't cover small business either
TIMOTHY PILGRIM: It doesn't cover some small businesses.
JENNY BROCKIE: Richard?
RICHARD GILBERT: What is important here, in relation to what Matt said is, the things that happen in the
JENNY BROCKIE: Jan, a few years ago you began protesting against a water pipeline that was planned for your area in rural
JAN BEER: Well, I discovered that for almost two years the Melbourne Water Corporation and its employees had been monitoring me and had me under surveillance and had collected a very large amount of personal information on me.
JENNY BROCKIE: How much, and how many pages of documents did they collect and over what period?
JAN BEER: Look, there were 102 documents of which they released 88 documents to me.
JENNY BROCKIE: This was under Freedom of Information?
JAN BEER: Under Freedom of Information. That included two video tapes, photos and an audio tape.
JENNY BROCKIE: An audio tape?
JAN BEER: An audio tape.
JENNY BROCKIE: And what was that of?
JAN BEER: That was of a conversation between a land owner, myself, and a Melbourne Water-authorised officer when they were attempting to enter this land owner's property to construct the pipeline and I had no idea that that was being taped until there was a court case brought by the land owner against Melbourne Water. It came out in the evidence.
JENNY BROCKIE: What sort of information was it and what were you doing to warrant this amount of attention?
JAN BEER: I was the spokesperson for the ‘Plug the Pipe Organisation’. We strongly objected to the north South Pipeline on environmental grounds, it was in the middle of the drought and I was determined I would document the construction of the pipeline, because it was going through many, many waterways and...
JENNY BROCKIE: Were you destroying property, or doing anything like that?
JAN BEER: Mainly, we were at several protests, but they were always peaceful protests. Police were always told where we would go
JENNY BROCKIE: What sort of information was it that you got in those documents, what did you find?
JAN BEER: Wow, I found that they had tailed and follow me up the
JENNY BROCKIE: Now, you went to the Privacy Commission about this.
JAN BEER: I did.
JENNY BROCKIE: And it eventually went to the Victorian Civil and Administrative Tribunal. You got an apology?
JAN BEER: I got a public apology from the Melbourne Water Corporation. It's taken a long time. All of this information was collected on me quite unbeknown at the time to me, I didn’t realise it.
JENNY BROCKIE: We should point out we did ask Melbourne Water to join us tonight but we were told the issue was resolve and it wanted to respect your privacy, which is interesting. Even though you're here and you're talking about it. But you can find
JAN BEER: Yes, we did.
JENNY BROCKIE: I just think that is an interesting example and I would like to broaden it out a little bit. I'd like to ask you, David, because you were quite passionate about some of these things, where do you think the main threats lie to our privacy from your perspective?
DAVID VAILE: Everyone has their own favourite source, but the way I see it there's four different sources of threat for personal information, security and privacy. The obvious one is crooks, baddies, people who run in malware networks, capturing computer information, that’s easy, everyone can point to them, as Richard said - they have often committed crimes along the way. But then there are governments who are over zealous about trying to keep tabs on you, and there are businesses who are over opportunistic about trying to understand what's in your head. Generally to try to work out how they can sell things to you.
But in many cases the worst participants in this sort of threat are you, yourself and maybe your friends in putting things up online or in other - particularly the Internet-related systems, without thinking about what permanent global publications actually means.
JENNY BROCKIE: And you're nodding your head Richard?
RICHARD GILBERT: Yes, look at the end of the day, go the Commonwealth Government, and with due respect to Tim he is there trying to put a brake on some of it. We had a great example a couple of years ago, where the people in Canberra put together a bill called the Tax Confidentiality Act, it should have been called the Tax Anti-Confidentiality Act, because it was actually designed to regularise the collection of people’s tax data, and disseminate it to 50 other agencies – state and federal, you don't know these things are happening, you don’t know for how long people keep the data, whether they destroy the data. It’s just not good enough and fortunately we had some amendments put in the law and I'm waiting now for the Tax Commissioner's report to say how often he's used these powers. This group, Jenny - if I can finish - This law even tried to tell the parliament that it could only have certain sorts of information in certain directions. You wouldn't believe it.
JENNY BROCKIE: So you think, in the discussion about privacy, not enough focus is on those sorts of things?
RICHARD GILBERT: Absolutely. The other one just mentioned was Internet service providers. What is happening with Internet service provision is that we have a whole lot of transactions going on the net and it's possible for agencies to go and find out your email records, your Google hits and whatever, it's tantamount to putting Freddy Longbottom down at the Redfern Mail Exchange looking at everyone's letter.
JENNY BROCKIE: David, you mentioned, social networking, sites like Facebook - I know you're concerned about Facebook, tell us why?
DAVID VAILE: The question about Internet service providers, normally they're in a role where they're your servants, you are the customer, they are delivering you a service, there's a big pressure with lots of other sorts of regulations becoming too complicated or difficult for both litigants and governments to want ISPs to become the new gatekeepers but also the new monitors and disciplinarians of your use of the Internet. That is a good question to look at.
The other side of it though is if we're thinking about you and your friends, Facebook is an obvious example here, people think it's fun, Facebook themselves try to encourage you to just think it's like some never ending teenage party, that there's no consequences and you know, woo-hoo let's do this. But people have been sacked, people have been humiliated out of school, there may be issues about being exposed, committing criminal offences, so there's a range of real consequences that can actually happen.
JENNY BROCKIE: You've likened it to the sexual revolution and then discovering that there are sexually transmitted diseases.
DAVID VAILE: There was a period during the sexual revolution where everyone said, "This was fun", "Great, free love" whatever and it turned out, five or ten years down the track there was not only, the known sort of problems from that but things like AIDS that had not been appreciated before. I suppose, I think it could well be something like that, where it's so new, and really only been going on, like it is at the moment nor the last couple of years, in a few years time, we may stand back and think, what were we thinking? Why didn't we think there were some consequences in the future about all this?
JENNY BROCKIE: We did approach Facebook to come on tonight, but unfortunately they didn't join us. I wish they had, it would have been a really interesting discussion. Anyone had thoughts on that, on privacy?
CHERINE FAHD: I find it really fascinating that this discussion about privacy is occurring now when it appears that people are so, more than ever lax about their privacy in relation to things like Facebook and Twitter and blogging. It seems that everybody, every day, every minute, going to the bathroom, cooking dinner, is out there.
JENNY BROCKIE: Are you on Facebook Cherine?
CHERINE FAHD: No, I was on it for a very short period of time and I found it really, when my friends from school put up photos of us when we were 15, that is when I disconnected it.
JENNY BROCKIE: That’s a great irony here, I mean - you're taking photos of people lying asleep in the park.
CHERINE FAHD: This is something that I'm doing with a specific idea, and you know, they're not of me at 15 for the, you know the whole of everybody I know to see. So it was, and that's what I'm talking about. It's that there's these contradictions that occur, paradoxes that occur.
GEORGE CAPSIS: The people who go on Facebook, they do it because they want to do it. It's their business that they do that and make themselves vulnerable. The people from
JENNY BROCKIE: I don't think you can say "harassed" but there has been an apology.
GEORGE CAPSIS: Well, privacy was breached, I suppose. That's another matter. But here is two people here, just ordinary suburban people, who have they got to turn to, to take up their matter? At least you could turn to the Privacy Commission, but at the moment ordinary backyard people in suburbia don't have anyone to turn to, except complain to the local council who can't do nothing. So their matter is just as important to them as the other privacy issues are to other people.
JENNY BROCKIE: What is a breach of privacy? How do you define what a breach of privacy is?
PROFESSOR BARBARA MCDONALD: I think our discussion tonight just shows that privacy means so many different things to so many different people and so many different cultures. The worry is that if we have a broad based action for breach of privacy then we won't know where it is going to go. So I agree with Richard's view that we should stop the gaps, we should deal with technology as the law has to catch up with technology and sometimes it can predict where things are going but a broad based action would be...
JENNY BROCKIE: Timothy, have you looked into Facebook? There are lots of stories regularly about changes to Facebook settings and things like that and people concerned. Has the Privacy Commission looked into that?
TIMOTHY PILGRIM: We certainly have and have an ongoing dialogue with Facebook for these reasons because we do see there are constant changes to the privacy settings happening and we're not convinced that necessarily every time people are aware of that. We do have to go back to a comment that was made earlier a bit too that people need to take some responsibility when they go on to social networking sites about what they do post. They need to be really careful about that. Once it's out on the Internet it is virtually impossible to get that sort of information back.
JENNY BROCKIE: What do you as Privacy Commissioner think the rule of thumb should be for people posting on the Internet? What should they assume? What should they assume will happen to that information even if they think it is going to be relatively private?
TIMOTHY PILGRIM: First of all, if they are going on to the Internet, they should assume it will be reasonably available to just about anyone around the country, if not around the world and very quickly, which is another facet of the Internet which is quite interesting.
SAM DE BRITO: There seems to be this thing out there, if you put something on the Internet, it will be there forever and haunt you forever. It's actually not true. Servers go offline, websites collapse and I know that there's been things written about me online that have disappeared over time, I know that I've put, I once had hundreds of pictures on Facebook and I took those pictures down.
DAVID VAILE: And the thing is you don't know where they have gone, it stays there forever.
SAM DE BRITO: They might be sitting on a Facebook server now, but any shlub who wants to search me can't find those pictures any more. People aren't that interested.
DAVID VAILE: Maybe or maybe not. But people can circulate that information.
SAM DE BRITO: How will they get it?
DAVID VAILE: They copy and paste them.
JENNY BROCKIE: David, are you citing gravity here, I mean, is this just the way the world is now?
DAVID VAILE: I think what people are trying to get people to take their privacy and personal information and security seriously are fighting this attitude that, it doesn't matter everyone is doing it, so, who cares. The problem is that although every photograph that goes on Facebook doesn't stay there forever, anyone could stay there forever or could be circulated elsewhere forever.
SAM DE BRITO: So don't be an idiot when you put your photos up.
DAVID VAILE: It's not necessarily you, other people.
DENNIS: If we can’t have privacy in our own private home, we've been 40 years in our cul de sac, it's been a healthy, happy environment and suddenly we're being violated. Our privacy is, has been threatened. We're being watched all the time.
JENNY BROCKIE: Let's look at another quite different example where privacy has been raised. Andrew, you're the security manager at a
ANDREW MACDONALD, CHASERS NIGHTCLUB: We also do ID scanning so as people come in to our night club, what happens is, they go through a metal detector, to make sure there are no weapons coming into the venue, and we have cameras that photograph their face and match it back to a database to see if that person has been banned because there is in a lot of cases, where you have security door staff change, and it's all about people not being able to keep a memory all the time of who has been banned from a venue, so that is why you keep a facial recognition type database.
But with the ID scanning, what happens there is, if someone does assault another patron or in a case that happened last year where we had a female that had been at the club, she'd been picked up by a guy and taken behind the market and raped, the police were able to come to the club and go through the identification as well as the CCTV to identify the person and then prosecute the person, and the person's been locked up now.
JENNY BROCKIE: Let's look at how people are reacting to that.
CHASERS NIGHTCLUB STORY:
WOMAN: It's so easy to have your identity stolen these days. The more places that have your information the easier it is. You don't know if the people here are obliged to keep it secure or not, they don't tell you that.
MAN: The only problem is, you don't want it to be used where you have people calling you and emailing you, sending your details out. As long as they're not doing that, I suppose it's kind of okay.... I would rather be safe.
WOMAN: I've had sleazy bouncers come up to me before and they're looking at me, a wink and yeah, you have a good time in there sort of thing. And I don't see why they should have our details.
JENNY BROCKIE: Andrew, what if you don't want your face scanned at the club?
ANDREW MACDONALD: What we have at the front of the club, is signage stating we are doing facial recognition and that we are doing ID scanning. If people do have concerns, then they can ask to see the licensee or the manager and say they don't want to go through that process.
JENNY BROCKIE: What happens to all that information - to the scans that you collect? You share it with the police obviously, sometimes?
ANDREW MACDONALD: So, if the police require that information, then we will pass the information on. With the data obtained through the licences and through the CCTV and facial recognition - that is all under lock and key, so that it's written over automatically after 28 days, which is the legislation that we have in
JENNY BROCKIE: Okay, Rafal, you've been a bar tender in clubs for the past decade. What do you think of facial scanning?
RAFAL: I'm really concerned about the way you guys are using and have chosen to use this technology, I think there's so many cameras and surveillance around the city centre already, that there's no way in that case they wouldn't have tracked these people down - I personally feel. What I would like to see is a more pro-active, preventative use of this technology. As a bar tender working in large premises, it's hard to keep a tab on how many drinks people have had and with this technology you could assist bar tender so that they can serve alcohol responsibly.
JENNY BROCKIE: That is a whole other issue. But I want to get back to the facial recognition and how people feel about that scanning. Timothy, what do you think of that, is it an invasion of privacy?
TIMOTHY PILGRIM: On the face of it, you would assume, pardon the pun, that it is an invasion of privacy. But when you look at how the act applies to it, the organisation firstly needs to justify, do they need to collect that information for one of their legitimate functions and they have to tell the people who are going into the club, what they intend to do with it, and how they are going to protect it. So they do have obligations around security and protecting information and importantly given the risk of identity fraud, that they should destroy it if they don't need it after a certain amount of time.
JENNY BROCKIE: Andrew, I’m interested that you said you wouldn't do finger printing, why?
ANDREW MACDONALD: There was a night club in Melbourne, ‘Neverland’, and they were doing the finger printing and they found that a lot of people wouldn't come to their club, because of that side of it.
JENNY BROCKIE: So fingerprinting is more invasive of your privacy than facial scanning? But why are you laughing Sam?
SAM DE BRITO: Because obviously crooks don't want to go in there - which says a lot about ‘Neverland.’
ANDREW MACDONALD: That night club is now, since taking out that fingerprint scanning and they just do the scanning of the IDs.
JENNY BROCKIE: So this is just customer resistance - that people are happier to have faces scanned than have finger prints taken? David, quickly?
DAVID VAILE: People associate finger prints, it's been around a long time, they understand what it is and they think it means you are a crims - it’s what they do to crims. What people don't understand is that face recognition is in fact a form of biometrics and the big problem with biometrics is that you get this huge risk that you can not revoke it - if it gets hacked, biometric information, face recognition information potentially can’t be fixed up. It's not like they can issue you a new credit card, you can't change your face.
JENNY BROCKIE: The Government is looking at privacy law hot on the heels of the
RICHARD GILBERT: I think the jury is out and we have written, the Rule of Law Institute has written to Mr O’Connor who has carriage of this, and said ‘would you just name us in the last five years the five or six big invasions of privacy that have driven you to make this decision to move forward on this thing only’, because if only, as you've seen tonight, the tort of privacy is one element of a big, it's one tile on a very big mosaic. So we say, hasten slowly and let's see the evidence to see what we're trying to address.
JENNY BROCKIE: What do you think is driving this?
RICHARD GILBERT: Well, look, this was done very proximately to what happened in the
JENNY BROCKIE: A tort meaning a law?
RICHARD GILBERT: No, a right of an action in court against an individual, with damages up to $150,000. I wouldn't like to be in a position to be talking to my neighbour about someone who may have committed a murder and suddenly found, it was true and find that I have a tort against me and I have to find lawyers, all the emotional stress of going to court to answer this thing, which was true. You have defences I know!
JENNY BROCKIE: Barbara, what do you think, is there a case for strengthening a law?
PROFESSOR BARBARA MCDONALD: I think there is a case, but I'm not sure whether a broad based statuary action is the way to go. I think there's a real problem and I do think we need protection of freedom of speech in our law which we don’t have. We don't have a Bill of Rights, we don’t have an express protection of freedom of speech in our constitution, we have some implied rights but they are fairly limited. So I think there is a danger for society generally. I think it can often have unintended consequences if we legislate too quickly, so I would rather fill in the gaps.
JENNY BROCKIE: So used in the wrong way, the point that Sam was making.
PROFESSOR BARBARA MCDONALD: I think the slow development of the common law is personally the way to go and it is moving that way.
JENNY BROCKIE: So slow development of common law testing it in court?
PROFESSOR BARBARA MCDONALD: Case by case.
RICHARD GILBERT: I'm sure you would have a view about the 2001 case which allowed the pro-animal lobby to get into someone's property, take videos, and the court...
PROFESSOR BARBARA MCDONALD: There was public interest in that case, it said a corporation wouldn’t have a right of privacy anyway, and the court said a much older case didn't stand in the way of a development of action of privacy and there have been actions in the lower courts, so it's waiting for the right case to come along I think.
JENNY BROCKIE: Matthew, what do you think should happen?
MATTHEW FINNIS: I think we've seen every sophisticated jurisdiction around the world has been able to legislate in this area, we've seen three law reform commission reports now advocating for this, so I'm not sure if this is a matter of hastening slower than what the evolution has occurred thus far. But I think it is very important that we do consider the balance. Privacy is not an absolute right, we do need to protect the freedom of expression, but I'm confident that the right balance can be found to ensure there's more certainty for everybody to be governed in this area.
JENNY BROCKIE: So where would you want the focus to be, what would you want it to be on?
MATTHEW FINNIS: I think it needs to be where you have a serious invasion of one's privacy, where you have a legitimate and reasonable expectation that you're going to have your information or your identity being private, that is only when that is offended that we should seeking to provide protect.
JENNY BROCKIE: You're talking about publishing or media mostly?
MATTHEW FINNIS: I think it can be something private between two individuals, or between you know, surveillance or other organisations, I think we need some certainty in this area, but it comes back to protecting the fundamental principles.
JENNY BROCKIE: Sam, what go you think?
SAM DE BRITO: As I said, I think it's a really foggy question. I have a feeling that it's professionals who will be punished. If a professional paparazzi for example, was to take a picture of someone in a toilet cubicle, we could all say, well, that's an invasion of privacy, it’s clear-cut, and they shouldn't be there. But that happens every day, every weekend to footballers, where people will stick you know, cameras underneath toilet doors and take pictures of them and if we are going to be treating individuals the same as media organisations.
JENNY BROCKIE: Matthew, why are you laughing?
MATTHEW FINNIS: I'm not sure that happens every weekend. At the end of the day, the proposals that are being discussed and are being debated at a sophisticated level is to consider what is the public interest and what is something that's mere curiosity, we need to protect that.
JENNY BROCKIE: David?
DAVID VAILE: I think some of the concerns that free speech will be crippled, the basis of reasonableness is that there is no law that protects freedom of speech in Australia to any extent and I think we do need that law. On the other hand, the Law Reform Commission at the Federal level and two other law reform commissions have spent years and years writing a telephone booking looking at all of the detailed arguments for and against and came out with a recommendation to try to balance these two things and said, ‘if there is a public interest in discovering some crook doing something or someone is a complete hypocrite and this exposes them, then by all means let the media in’. If it's about sticking a camera under a toilet door to see whoever, whether it's a footballer or anyone else, then maybe in fact those journalists shouldn't be doing that, that may be the boundary line where if you can't work out if there is a public interest, the fact you may sell a few more papers shouldn't necessarily...
SAM DE BRITO: I wasn't talking about journalists, but teenagers.
JENNY BROCKIE: Timothy, would you like to have more power, would you like your office to have more how power, would you like a stronger Act?
TIMOTHY PILGRIM: Yes, there are certainly reforms in place that we support which will increase the powers, to the Commissioner and myself, in resolving issues and we are advocating for those, particularly in terms of being able to have enforceable undertakings for organisations when they do the wrong thing and access to civil penalties. So yes, there are some places that the Act can be strengthened.
JENNY BROCKIE: Where?
TIMOTHY PILGRIM: As I suggested, for example, if I start an investigation into an organisation on my own volition - that is without a complaint, can I work with the organisation to achieve an outcome, but I can't force them to do anything. When I get a complaint from an individual, I have different powers to do some enforcement work, so there are gaps in the Act where it can be strengthened in terms of the powers available to me.
JENNY BROCKIE: Okay Judy? We started with you. What would you like to see, you just want those cameras down?
JUDY: I would like council to be able to police it and that they could remove the cameras in the suburbs. I mean, I know we need them at railway stations and we need them in clubs and, but not in the family home.
JENNY BROCKIE: And not in your back yard when you are in your nightie?
JUDY: No and not in my backyard.
GEORGE CAPSIS: And I don't think you can really rely on court battles to get some decent legislation.
JENNY BROCKIE: All right, we will wrap it up. Thank you all very much for joining us tonight. It's been very interesting and we can keep talking online. You can keep talking to our guests on our live chat with Sam De Brito, Cherine Fahd and David Vaile. Keep talking about this on Facebook and other topics.
