Today, Crikey is lodging a complaint with the Australian Press Council over the Pauline Hanson photographs affair.

We are doing this because we think the ethical issues raised cannot simply be allowed to fade. Although it now seems most likely that the photos were not of Hanson, the issues faced by editors and journalists when deciding to publish this sort of material still need adjudication.

At the time News Limited tabloids decided to publish, they apparently believed the photos were of Hanson, taken decades before in the privacy of a bedroom. They therefore decided to grossly invade her privacy with no apparent public interest reason to do so. We think News Limited editors should be held to account.

But how? Hanson says she will sue, but even if she goes ahead that suit is likely to be about defamation, not privacy. For all sorts of reasons, political, personal and financial, the suit may not proceed or may be settled out of court without the principles being tested.

Yet the principles are important. Privacy is important, and the degree to which public figures retain their right to privacy comes up again and again in newsrooms if not (yet) in law. Think Senator Bob Woods. Think Mark Latham. Think Cheryl Kernot. There are dozens of examples.

But how can these issues be tested?

I, and Crikey, have been highly critical of the Australian Press Council in the past. Let’s see, though, whether it can do its job in this case.

In deciding to lodge this complaint we have discovered various complications, limitations and barriers which we think the Press Council also needs to consider. Together, they make it more difficult for a citizen to hold the media to account on questions of privacy.

There are two sets of standards that apply to privacy complaints to the Press Council.

The first is the Privacy Standards, which are part of the mechanism of the Federal Privacy Act. Those media organisations that sign up to the Press Council Privacy standards are exempted from the Federal Privacy Act for things done in the course of journalism.

The Privacy Standards state:

Public figures necessarily sacrifice their right to privacy, where public scrutiny is in the public interest. However, public figures do not forfeit their right to privacy altogether. Intrusion into their right to privacy must be related to their public duties or activities.

All of the News Limited tabloids that published the Hanson photos have committed themselves to these standards, and have thus gained their exemption from the Federal Privacy Act. It’s a get out of jail free clause — or at least, it is if News Limited doesn’t really intend to adhere to them, and if there is no way the public can hold them to account.

And there is a problem. Under these standards, only the person who claims their privacy has been invaded can make a complaint to the Press Council. The rest of us — fellow journalists and concerned citizens — are locked out of the process.

So although we think our complaint should be made under these principles, we can’t do it.

That leaves the second means by which one can lodge a complaint with the Press Council – the general Statement of Principles . 

Principle Four states:

News and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy is not to be interpreted as preventing publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports should be identified as such.

Other principles that may be relevant in this case include numbers one, two and seven:

1. Publications should take reasonable steps to ensure reports are accurate, fair and balanced. They should not deliberately mislead or misinform readers either by omission or commission.

Where it is established that a serious inaccuracy has been published, a publication should promptly correct the error, giving the correction due prominence.

7. Publications have a wide discretion in publishing material, but they should balance the public interest with the sensibilities of their readers, particularly when the material, such as photographs, could reasonably be expected to cause offence.

However, we believe that it is the privacy principles, and the sorts of things editors should be taking into account in making decisions of the kind involved in the Hanson photographs affair, that are most important in this case.

As we reported yesterday the Press Council has already issued a strong finding in the Senator Bob Woods case that just because someone is a public figure doesn’t mean they have no right to privacy.

News Limited’s response to the ABC Media Watch program would seem to suggest that despite this history, editors take “the public interest” to mean merely that which the public is interested in. When Media Watch asked Helen McCabe, Deputy Editor of the Sunday Telegraph , to identify the public interest in publication, she responded: “That’s for our readers to tell. That will be determined by the number of people that buy the paper.”

But the Press Council says that for its purposes: “Public interest is defined as involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others.”

So here is a chance for the Press Council to show its members that it means what it says. Is it hoping for too much for this process to be educative for McCabe and other editors?

There is a final problem. The Press Council’s normal procedure is that a complainant should first contact the publication concerned outlining the complaint and seeking redress.

In this case, this would seem to be unnecessary. Crikey, Media Watch and a host of other commentators — some of them within News Limited — have already raised the matter. Yesterday Crikey approached News Limited’s Director of Corporate Affairs, Greg Baxter, for comment and published the result.

The redress we would ultimately want is an admission of wrongdoing, and for editors to be educated on privacy.

We will therefore argue that the Press Council should accept and adjudicate on our complaint without us having to further raise the matter with News Limited.

There are more barriers.

The Press Council can also reject a complaint if it seems likely to be the subject of legal action. We will argue that the privacy aspect of this case is unlikely to be the subject of litigation, because Hanson claims the photos are not her.

It is clear that there are lots of ways in which News Limited and the Press Council could avoid this complaint if they wished. News Ltd could argue that the potential for legal action rules out an adjudication. The Press Council could say we have to approach News Limited first. We hope that none of these things will happen.

We hope the Press Council will do its job — and also that the potential shortcomings in the Privacy Principles and the complaints process will be addressed.

A letter will be in the mail to the Press Council shortly. You will be able to read it in full on my blog, The Content Makers,  later today. 

We will continue to report on the process.