Tessa Meyrick
The
arrival late last month of the new heir to the throne was unsurprisingly
attended by a flurry of media interest in the UK and beyond, with reports of
the royal birth apparently accounting for a staggering 5 per cent of online news content consumed
globally on 22 July 2013. When the (yet-to-be-named) Prince George of Cambridge
made his first media appearance the following day, every portal, page, RSS and
Twitter feed continued to be jammed with details of the Prince's BMI,
speculations as to his naming (commiserations to those who'd put their cash on 'James'), and even the Royal swaddle he
left wrapped in.
Somewhere
among all this emerged concern (including from the media itself) over how the
Royal parents are to construct some semblance of an ordinary life for the
Little Prince once the natal storm has passed. In the UK Government's official
response to the news of the birth, Lord Hill of Oareford, Leader of the House
of Lords, shared with his peers a hope that the Prince (and his no doubt
fatigued parents) be given some privacy. The media agreed, with one major UK
newspaper at pains to stress that 'no one, and certainly not the media, would
want to deny the Duke and Duchess some time alone with their baby son'.
With
the UK Government's plan for a new press regulator (set in chain by the Leveson inquiry) put on the back-burner until the Australian spring, it's uncertain
which body in the UK will be responsible for ensuring the media comes good on
its commitment to honouring the Royals' privacy. In any case, it's also not
entirely clear that it’s the conventional media that’s going to need to be held
to account.
Prince
George is the first future monarch to grow up in an era of social media and
under the gaze of many-a-quick-fingered 'citizen journalist' in possession of a
smart phone. Which is to say, Prince George's privacy (or lack of it) won't
depend purely on the strength and structure of media regulation in the UK, but
will also hang on the development of a freestanding right to privacy in that
jurisdiction. For the record: there is no such right in the UK, and nor is
there in Australia. But if 'the right to be let alone is indeed the beginning
of all freedom', then the influence of Article 8 of the European Convention on
Human Rights and the extension of the law in relation to breach of confidence
to cover misuse of private information by the Court of Appeal actually puts the
UK in comparatively good stead.
In
Australia, the idea that privacy is solely a media regulation issue continues
to hold ground. This was helped along by the Federal Government's decision in
March this year – expressly in the context of its ill-fated media reforms – to
sideline the question of whether Australians should be able to sue for serious
invasions of privacy. Concerned that earlier consultations on a privacy tort (the 28 month Australian Law Reform Commission inquiry finalised in 2008 and
the Government's own consultations in 2011) showed little consensus on what
such a right would look like, the Government has referred the issue to
the ALRC for yet another inquiry. That inquiry, 'Protecting privacy in the digital era',
kicked off in June. The final report, focusing specifically on the legal design
of a statutory cause of action, is due to be delivered in June 2014. Whether
that report stays with its earlier counterparts in the 'too hard' basket
will remain to be seen.
This piece first appeared on the Allens intellectual property blog, Scintilla.
