Privacy Law and Policy Reporter
Nigel Waters comments
Late in 1997, a public argument between the NZ Privacy Commissioner, Bruce Slane, and the NZ Press Council illustrated the tensions that exist between two important public interests. Although the origins of the dispute lay in a complaint about media invasion of an individual’s privacy, the issue that became public was the separate one of the Commissioner’s investigative powers versus the protection of journalists’ sources.
In summary, the Privacy Commissioner’s investigative staff had approached a journalist for assistance in relation to a story which had involved the disclosure of personal information obtained from an unknown government source. The newspaper in question took exception to the Commissioner even asking about the source, apparently assuming that he was seeking to exercise his powers to require the journalist to divulge her source. The Press Council took up the case and called for the Commissioner to desist from any future attempts to query journalist’s sources. The Commissioner’s response was that his staff had simply been trying to ascertain, initially, the nature of the source — it may not have been confidential, and knowledge of the circumstances could have assisted in the complaint investigation. The issue of the disclosure of a confidential source could clearly have arisen at a later stage, and would then have involved an interesting, and difficult, balance of two important public interests, both of which are protected by law. But the Commissioner clearly felt strongly that the newspaper, and subsequently the Press Council, had been premature and over-sensitive in seeking to invoke the protection of sources as an absolute reason for the Commissioner never approaching a news media organisation in similar circumstances.
This dispute brings to mind similar experience in Australia, where the Federal Privacy Commissioner has on more than one occasion felt it appropriate to ask journalists and editors about the source of stories which involved an apparently unjustified, or even unlawful, disclosure of personal information. One publicly reported example was an early complaint case under the Privacy Act 1988, (see Complaint Determination No. 2 of 1993, in the Federal Privacy Handbook) in which a Member of Parliament complained about the disclosure of information about a travel claim, which had formed the basis of an article in the Sydney Morning Herald. The complainant alleged that the information could only have been disclosed, in breach of the Privacy Act, by the relevant Minister or Department.
In the course of investigating the complaint, the Commissioner wrote to the Editor of the newspaper, who declined to co-operate — also on grounds of protection of journalistic sources — but did provide some background information. The Commissioner reached the point of serving a formal notice on the journalist in question, under s 44 of the Privacy Act, to attend to give further information, but the notice was subsequently withdrawn at the request of the complainant. Partly because of the inability of the Commissioner to establish the source, the complaint was determined inconclusively.
Both of these cases illustrate one of the difficulties that privacy regulators will always face in dealing with the media — the almost paranoid reaction that journalists, editors and media proprietors display whenever they are approached about sources — whether or not there is any suggestion that they have acted unlawfully or unethically. The Press Council and other Media complaints bodies have tended to instinctively side, as in the recent NZ case, with the media organisation that sees itself as under threat. Freedom of the press is typically seen as the key value to be upheld even where there have been clear transgressions of journalistic ethics or codes of practice. While this is clearly a vital freedom in a open democratic society, it should not be incompatible with a reasonable sensitivity to other values and rights. Various articles in this issue highlight the issue of more direct media invasions of privacy, which seem to be stretching the public’s tolerance for the ‘freedom of the press’ defence.
Given the power of the media, regulators and even parliamentary committees and governments have been very cautious in their approach to any suggestion of regulation of the media in relation to privacy. In Australia, an inquiry by the Senate Legal and Constitutional Affairs Committee into the rights and obligations of the media, commenced in 1993, never completed its work (other than an interim report on protection of journalists sources issued in October 1994, and one session of public hearings on wider issues in March 1996 just after the federal election). Although the inquiry terms of reference were continued by the new Parliament, there is no sign of the Committee (now the Legal and Constitutional References Committee) resuming the inquiry. The discussion paper on privacy protection in the private sector issued by the Attorney-General’s Department in September 1996 expressly ducked the issue, excluding the media on the grounds that it raised complex issues best dealt with in other forums. Media opposition is widely credited with deterring the SA Government from proceeding with privacy legislation in the early 1990s, and Bruce Slane has experienced a high level of often poorly informed criticism by the media ever since his appointment as NZ Privacy Commissioner. In the UK, successive governments have balked at implementing recommendations for privacy regulation of the media, so that the so-called ‘last chance saloon’ is still doing good business.
Sooner or later, governments in Australia will have to confront this difficult issue and a sensible balance will need to be struck. It should not be impossible to devise a system of satisfactory protection against abuses of privacy by the media, and mechanisms for the media to assist regulators’ investigations up to a point, without sacrificing the critically important freedoms which the media enjoy and the public interest role they play.