# RÉVOLUTIONS DE LA MARGE ### N° 8 — Sunday, 6 September 2026 > *Cum quiescunt, probant ; cum patiuntur, decernunt ; cum tacent, clamant. » « Quand ils restent cois, ils approuvent ; quand ils laissent faire, ils décrètent ; quand ils se taisent, ils crient.* > — Cicero, First Catilinarian, I, 21. ## THE THIRD REFUSAL Australia has just invented a right of a new species, and I beg the reader to look closely at the beast, for the first specimen is never made twice. On Monday, 31 August, Michelle Rowland, Attorney-General in the Albanese government, presented in Parliament’s blue room the exposure draft of the second tranche of her privacy reform — the *Privacy Amendment (Personal Data Protection) Bill 2026* — and in it, at last, the right of a citizen to demand the erasure of his personal data. *Australians expect their personal information to be protected, not exploited*, said the minister. We had waited years for it; the press releases speak of a turning point; and a turning point it is, I do not deny it. But read the threshold clause before applauding, for it contains the whole philosophy of the text, and corrects the minister’s sentence with an adverb: protected, yes — provided the exploiter is rich enough. The right may be exercised only against “large digital platforms” — that is, a service of the kind already targeted by the Online Safety Act: social networks, messaging, streaming, games, artificial intelligence — and among those, only such as belong to a group worth more than five hundred million Australian dollars in all, or have more than two and a half million users in the country. Understand clearly what this means, for it is not a qualification of the right — it is the right itself. Below the threshold, the citizen has nothing: not a weakened right, not a deferred right — nothing. Your power to be erased is born of your adversary’s accounts. The platform that holds your profile owes you oblivion only if it has made a good living; if it languishes at two million four hundred thousand head of digital cattle, it keeps you. And the data broker, which is not a platform but a warehouse, keeps you whatever its size: it lies outside the scope by species, as the fox lies outside the law governing henhouses. The reason for the threshold is confessed in the consultation paper itself, and I like a confession: the object is to catch organisations “sufficiently large to meet the erasure obligations” — large enough to bear the obligation. That turns the telescope around rather prettily. We knew duties that grow with power — Europe furnished an example that very day by designating ChatGPT and Reddit under its enhanced regime once they passed forty-five million users: there, the threshold measures the audience and modulates the burden upon the powerful. Here, the threshold measures the defendant’s coffers and modulates the existence of the subject’s right. It is not the same grammar, though the round numbers are the same. Let us pass to the sinews of the text, for a bill is judged like a horse, by its hocks. A data breach must be reported to the regulator within seventy-two hours; the citizen who requests erasure, meanwhile, will receive an answer within a “reasonable period” — the watch for the State, the adjective for you. The refusal of his request must be explained to him, “*except to the extent that, having regard to those reasons, it would be unreasonable to give the individual notice of them*”: except insofar as, having regard to those very reasons, it would be unreasonable to notify him of them — that is principle 14.5(b)(i), and the obligation to give reasons contains its own dispensation, judged by the party refusing. Erasure, moreover, stops where commerce begins: six exceptions, including that of whatever is “*strictly necessary… to continue to provide goods or services*” — and what byte will a well-advised business model not deem strictly necessary to its continuance? Consent, finally, may be bought and sold, pay or consent, provided the choice is “*genuine*”; the text regulates the market, it does not close it. And then there is section 26WF, which I quote in its own language because no translation could capture this perfume of notarial metaphysics. A data breach, if the organisation takes remedial action in time, “*is not, and is taken never to have been, an eligible data breach*” — is not, and is deemed never to have been, a breach requiring notification. It occurred; it was stopped up; henceforth it never occurred within the meaning of the law. Rome annulled marriages: the spouses had never been spouses, and the children remained. Canberra annuls breaches: the scattered data remain, and the breach never occurred. The only perfect erasure in the text is not that of the data. It is that of the fault. Now to the credit side, and there is solid stuff there: a general test of fair and reasonable processing, consent redefined with more teeth, geolocation classed among sensitive data, and retrospective application of the right to data already held — that last point is no small thing, for a right of erasure applying only to future data would be an amnesty for the stockpile. The text is no farce; that is precisely why its silences deserve examination. For here are the silences. In the ninety-six pages of the bill and its consultation paper, the word *journalism* does not appear once — nor *media organisation*, nor registered political parties, nor employee records. These are not drafting oversights: they are the three historic exemptions in the 1988 Act, and the bill leaves them where they were. The press is exempted by section 7B(4) for its acts of journalism; the employer, by section 7B(3), for everything touching his employee’s record — his hours, his pay, his health, his union, his leave, the list is in the law; and the registered political party is not exempted at all — it is simply, by section 6C, *not an organisation*: the law does not see it, its vocabulary does not contain it. Three classes of data-holder remain outside the new right — and look which ones: those who write opinion, those who write the law, those who hold your livelihood. Chance has good taste. And here is the prettiest part. In 2023, when the great review of the Act proposed reforming these exemptions, the government answered each with a different verb: for the press, *accepted*; for employee records, *accepted in principle*; for the parties, *noted*. Carefully graduated degrees of commitment — all arriving at the same nothing in the first tranche of 2024, then at the same nothing in Monday’s second. Cicero, at the head of this column, said as much of the senate sitting mute before Catiline; the government in Canberra has supplied the verbs of its own tricolon. I shall be told: a silence is not an act; the bill could not address everything; the press exemption has its reasons, and besides, it has existed since 1988. The history of that exemption is more eloquent than the silence that prolongs it. Section 7B(4) of the *Privacy Act* exempts acts performed “in the course of journalism” by a “media organisation” publicly committed to published standards. Yet the word “journalism” is nowhere defined in the Act; “media organisation” is defined so broadly — it is enough that the activity include the dissemination of material having the character of news or “information” — that the exemption covers anyone who disseminates information to the public, which, in the century in which I write, is very nearly everyone and his broker; and the required standards may be published by the organisation itself, with no register, no approval, no threshold of adequacy, no sanction, no complaints procedure. Publish a few paragraphs of principles on your website, commit yourself publicly to observing them, and the trick is done. So much for the hole. Now for the refusals. The first dates from the year 2000: the bill that created the exemption contained a definition of journalism; it was removed before enactment, and no one has restored it since. In 2008, the Law Reform Commission recommended defining journalism, narrowing the meaning of media organisation, requiring the standards to deal adequately with privacy, and having criteria established for them — four recommendations, none of which entered the law. In 2023, the great review of the *Privacy Act* proposed making the exemption conditional upon supervised or adequate standards, and the government accepted the proposal, in black and white, in its official response. Then came the second refusal: the first tranche of reform, in 2024, which touches the Act and does not touch the section. Then the third: Monday’s exposure draft, which opens the Act again and leaves the section again. Three times the legislator has held his pen above that word, and three times he has laid it down — the last after writing with his own hand that it ought to be used. Criticism is not repealed; it is not refuted; it is left standing on the quay. Tacitus described the imperial method in the first book of the *Annals* (I, 72): the emperors needed only a few additional provisions sewn onto the law of treason to envelop the citizens within it. One does not touch the protective law, one stitches a section onto it. The modern method is more economical still: one stitches on nothing at all. The first tranche offers connoisseurs, moreover, a jewel of the same workmanship. In 2024 it created a civil cause of action for serious invasion of privacy, with its own journalistic exclusion: the journalist subject to a professional code is protected by it — and the text specifies, clause 15 of the schedule, that an actual breach of that code is immaterial to the application of the exclusion. Read it again: the exemption requires the oath and declares apostasy irrelevant. It is a vow of temperance engraved upon the cellar door. There remains my own bench. I am a journalist; the press exemption is my window, and a right of erasure enforceable against newspapers would be a file in my lock. But see what the silence truly protects: not my corporation — a word. A word that no one has wished to define for twenty-six years, so hollow that the first data broker may put it on as a hat by publishing his own standards, so convenient that three successive reforms have preferred to leave it gaping. I wear the hat of this exemption; I hold it out to you, that you may count its holes. A press that cherishes its freedom ought to be the first to demand that journalism be defined — for so long as the word covers everyone, it protects no one, and the day a hurried legislator wishes to close it up, he will close it upon us all with a single gesture, journalists with brokers, in the same sack and to the same applause. The department has opened a consultation on its exposure draft. The newspapers announce three weeks in which to respond; the consultation paper itself, in forty-two pages, gives no closing date, no means of submission, no rule for publishing the responses — the deadline exists in the press release, not in the document. It asks five questions, all concerning emerging technologies, which is to say the only part of the subject for which there is as yet no text; nothing on the threshold, nothing on the exceptions, nothing on enforcement; and the fourth forbids in advance one class of answers, “*without duplicating existing powers*”. They consult as they exempt: keeping hold of the pen. I answer all the same, in a column and without being invited, the question they do not ask: why is the right to be forgotten born mute concerning those who remember professionally? Cicero’s senate, at least, fell silent in the presence of the accused. This one is silent in the very text of the law. Of Cicero’s three verbs, it is the last that suits it — *cum tacent, clamant* — and it is the loudest. --- *Documents: the exposure draft and its consultation paper (31 August 2026); the Privacy Act 1988, sections 6C, 7B and 26WF; Report 108 of the Law Reform Commission (2008); the government response to the review of the Act (2023); the 2024 Amendment Act, Schedule 2.* --- *Translated from the French by an agentic translator of the publishing house.*