Thursday, November 6, 2014

Barend Vlaardingerbroek from Lebanon : No more emailing of Irish jokes

I won’t be sending any more Irish jokes to my mates via email – certainly not from my workplace email. One of the recipients might rat on me by forwarding a particularly pungent sample to a thin-skinned member of the Irish Anti-Defamation League who then slaps it on the internet with my name alongside it, thereby inciting a hue-and-cry against me that could see me lose my job and being black-listed for the rest of my life.

Admittedly, this is not a likely scenario, but there is a serious side to my jocular narrative: I am indeed going to be more careful about what I put in my private emails. I have been known to make some scathing comments about various groups and individuals (which of us hasn’t?) which in retrospect I would prefer to remain cosily entre nous between me and the intended recipient. Maybe I should have a jolly good look at the people I send emails to – is there a potential back-stabber among them, someone who maybe has the huff with me and would just love to drop me in it?

But you said ‘private emails’, I hear someone say, so surely that’s............. well, private, not intended for the public domain, and whomever spilled the beans is breaching your right to privacy and indeed breaching a confidence as you sent it to the recipient(s) as a personal message, so you could get an injunction against the rotter and sue.

No, it’s not as simple as that. There is no tort of invasion of privacy as such in Common Law. There has effectively been one created in English law – the Naomi Campbell case of 10 years back was a milestone in that regard – but this has been brought about by the incorporation of the European Convention on Human Rights (ECHR) through the Human Rights Act 1998 and English courts have had to adopt a whole new ‘rights’ mindset. The decisions of senior English courts can have persuasive authority in other Common Law jurisdictions, but that’s not really relevant in the context of jurisdictions that did not sign up to the ECHR.

The ‘breach of confidence’ angle is a rather weak one where no reasonable person would regard the information imparted as ‘confidential’. My telling a handful of mates an Irish joke can hardly be seen as taking them into my confidence, so they are not bound by any duty of confidentiality – unless I impress it upon them that the joke is confidential, which would rightfully make them suspect that I had been out in the sun a bit much of late!

The real problem doesn’t lie with my Irish jokes or even with some prat (Irish or otherwise) who makes them public with malicious intent. It lies with certain media outfits which pounce on them with a view to whipping up a scandal, with some rent-a-crowd baying for my blood, and with an employer who over-reacts to the situation by slapping an embargo on me.

I am, of course, alluding to the Barry Spurr case across the Tasman. Somebody ratted on him by passing some personal emails containing pointed comments about certain individuals and groups to an on-line self-styled news agency called New Matilda, and the proverbial hit the fan.

Spurr initially tried to argue that he was merely playing a “whimsical word game”. The guy is a Professor of Poetry, after all, and fellows of the literary bent often make use of hyperbole. But Professor Spurr teaches (or rather, taught) lots of university students who, we are told, must be protected from the pernicious influence of a man with such nefarious views as are reflected by those comments. He was also a member of a 3-man panel looking at the school English curriculum and made himself thoroughly unpopular with certain people when he suggested infusing more classical English literature into the curriculum at the expense of indigenous (Aboriginal and Torres Strait Islander) literature. A man with such politically incorrect opinions should not have any say in what is taught in schools, we are told, and those terrible things he said in his emails prove it, so there.

The connection with the school curriculum review was largely what made Spurr’s private outpourings “a matter of public interest” – an important line of argument for a journalist facing a claim for invasion of privacy or breach of confidence. New Matilda is hardly Reuters, but they made apparently successful use of this argument when Spurr (through his lawyers)  demanded that they disclose their source (i.e. the name of the character who landed him in it); the demand has now been dropped or at least shelved for the time being.

The case, set for December, is being seen as a legally momentous one in the development of Australian privacy law. It has polarised opinion, the lefties pumping out headlines like “The smoking gun of institutional racism” and right-wingers coming out with rejoinders such as “The new puritanism” (thank you Barry Humphries).

The University of Sydney says that it does not tolerate “sexist, racist or offensive” remarks being made on its email facility. Excuse me, ‘sexist’ or ‘racist’ by what – or rather, whose – standards? The same goes for ‘offensive’ – offensive to whom? If the answer to these questions points in the direction of some authoritarian PC clique, a great many of us are in dire trouble for being ‘sexist’ or ‘racist’ without knowing it, or for ostensibly causing offence through some statement we thought was innocuous.

The status of emails as private correspondence is not entirely settled in law. While the Law Reform Commission was inclined to treat them as being akin to conventional pen-and-paper  letters, the fact remains that an email is not a letter – it is not in an envelope that has to be surreptitiously (and illegally) opened, and it can be forwarded to any number of recipients (or even the whole world, through the internet) at the touch of a button.

One bright spark I came across in the news media suggested that people send any possibly touchy personal messages through an internet email provider like Hotmail. Perhaps there is some merit in that advice. although one could conceivably still get nailed by the employer if one had sent the message from a workplace machine. We can only wonder how much difference it would have made had Barry Spurr’s leaked emails been from a Hotmail or gmail account and sent from his home computer, although the University may well have had less reason to suspend him and bar him from all its campuses.

The Barry Spurr case is about a lot more than any ‘tort of privacy’ or breach of confidence, or technicalities about the legal status of email messages. It is about the targeted persecution of a man for informally sharing his opinions with a handful of private recipients – people who, I should add, are shaking in their boots for fear of being revealed because of the possible repercussions for them. Hey, is this North Korea or Australia we are on about?

Whatever the outcome of the case, Barry Spurr’s name is now mud, and his career probably in tatters. Maybe I should try to cheer him up by sending him a few Irish jokes. Then again, maybe I’d better not.

Barend Vlaardingerbroek BSc (Auckland), BA, BEdSt (Queensland), MAppSc (Curtin), PhD (Otago), DipCommonLaw, PGDipLaws (London) is associate professor of education at the American University of Beirut. Feedback welcome at

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