OPINION: When is private also public?

QUICKSAND: Senator Nova Peris, whose private emails were leaked.

THE publication by media outlets of leaked emails purportedly written by Northern Territory Senator Nova Peris and Sydney University Professor Barry Spurr raise numerous issues around public interest and privacy.

What is the public interested in? What is in the public interest? Are the two mutually exclusive?

Publication of subject matter and content that is in the public interest can be poles apart from – and even diametrically opposed to – subject matter and content that the public are interested in.

Salacious stories are more likely to grab public attention than stories that are in the public interest. Salacious stories involving public and powerful figures are even more alluring.

When sex gets into bed with the information necessary to properly participate in a robust democracy, sex always takes the blankets and gets the mouse clicks. Quality and accuracy are often the first casualties of the clickbait ruse.

Last month, a story about a dwarf stripper getting a bride pregnant on her hen’s night went viral. A clickbait masterpiece, the story first appeared in Spanish publication Las Cinco Del Dia.

Web aggregator Inquisitr claimed that while there was nothing to positively verify the yarn, “the story is too interesting not to pass along”.

In other words, don’t let the facts get in the way of a clickbait masterpiece. But while there can be no doubt it was interesting to the public, it was hardly in the public interest.

Perhaps it may be of more use and provide additional clarity if matters that publishers argue as being in the public interest were redefined as being of public benefit. A public service ethic underpins all serious journalism.

Public interest and privacy are at the centre of the email leaks involving Senator Nova and Professor Spurr.

From his University of Sydney email address, Professor Spurr sent emails to friends and colleagues over a two-year period. The emails contained racist and sexist diatribes. One email attributed blame to a victim of brutal sexual assault.

Professor Spurr maintains that the emails were a ‘‘whimsical linguistic game … trying to outdo one another in extreme statements’’, and the emails were largely restricted to a bit of ‘‘one-upmanship’’ between himself and an old friend.

It seems the spirit of that game was to see who could be the most outlandishly offensive and politically incorrect. The “I was only joking” line is the go-to defence of those accused of bullying, racism, homophobia and sexism. Yet though Professor Spurr’s defence is not palatable, it is plausible.

Professor Spurr has launched a Federal Court action against New Matilda for publishing the emails. The argument against the online news site includes Professor Spurr’s right to keep his emails private. Australians have no right to privacy under law, but they can and have taken successful legal action against breaches of confidence.

Emails have been considered by the law to be like letters. Letters are treated as confidential between the sender and recipient. Unauthorised publication may breach the confidence implied in email correspondence if the information is confidential.

Some emails contain advice at the bottom of the email advising information contained in the email is or may be confidential and subject to copyright.

The defence for publishing Professor Spurr’s emails may include argument that to do so was in the public interest.

Part of the problem for the Federal Court may be that there is no black-and-white definition of what constitutes public interest. Is it in the public interest for Australians to know the nation’s only professor of poetry shares anachronistic and abhorrent views that he sees as playfully quaint amusement?

Senator Nova Peris has also had confidential emails published. In her case, the information may be considered even more private because it refers to an intimate relationship. The NT News has already argued it published the emails because it was in the public interest to know that public money may have been used inappropriately to facilitate a personal relationship.

The Australian Law Reform Commission’s 2014 report Serious Invasions of Privacy in the Digital Era makes it clear that the defence of public interest is unclear in Australia. Accordingly, the commission has recommended a public interest defence be built into a new privacy law.

But there is little interest from government in this recommendation and the media certainly aren’t backing any new privacy laws.

The issues around the right to publish and the right to expect an email to remain confidential are struggling in a quicksand of ambiguity.

The Federal Court’s ruling may throw one of the two a lifeline, but the battle to stop from sinking may require a once-and-for-all ruling by the High Court.

Paul Scott is a lecturer in the School of Design, Communication and Information Technology at the University of Newcastle

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