Privacy Law and Policy Reporter
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Privacy Law and Policy Reporter |
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Nigel Waters
Versions of this article were given at two conferences in 2001 — the Australian Centre for Independent Journalism Conference: the Public Right to Know, 26-28 October and the Victorian Government National Privacy Conference, 26-27 November. It has been updated to comment on the new Australian Press Council standards and recent events.
The media has long been suspicious of and resistant to legal protection for privacy. Journalists and editors understandably fear that privacy law will be used by the rich and famous, and by politicians, to avoid legitimate public scrutiny. In the UK, a recent Court of Appeal decision[1] appears to have extended common law privacy rights in ways that have alarmed the British media. In NZ, the Privacy Act 1993 and the Privacy Commissioner have come under sustained, although mostly uninformed, attack from the media.[2] In the US, proposals for privacy regulation have been vigorously opposed for infringing First Amendment rights.[3]
In Australia, as elsewhere, controversy regularly erupts over the use of hidden cameras in pursuit of TV stories.[4] The recent High Court decision in favour of ABC TV over the use of footage from a covertly installed camera in a Tasmanian abbatoir,[5] while superficially a victory for free speech over privacy, is widely regarded as ominous for the media, as several of the judges suggested that they would have given much more weight to the privacy of an individual (the issue in this case being the right to privacy of a company[6]).
The Australian Press Council — a longstanding advocate for self-regulation — has made submissions critical of the Government’s recent private sector privacy legislation,[7] and the Government has responded with a broad and generous exemption, which arguably goes much further than necessary for the protection of news and current affairs reporting. A former Chair of the Press Council has even gone so far as to argue that privacy is an outdated and irrelevant concept.[8] This flies in the face of survey research (most recently by Roy Morgan for the Privacy Commissioner) which shows very high levels of concern about the collection, use and disclosure of personal information across a wide range of sectors and activities.[9]
There have been several attempts in Australia over the last decade to analyse the issue of the media and privacy, and suggest solutions. The most comprehensive of these was the article ‘Privacy and the Media’ from the Communications Law Centre in 1997.[10] Despite such excellent work, the issue has continued to be characterised by rival points of view digging in to their trenches and sniping at each other from a distance.
From a privacy advocate’s perspective, media organisations have failed to engage in a mature debate about the extension of privacy law, and also about Freedom of Information (FOI) law reform — which raises many of the same issues, as there is a privacy exemption in all Australian FOI Acts.[11] Privacy and consumer groups have at least been willing to accept the need for the media to be treated as a special case, and to make concessions to their difficulty with some of the privacy principles. In contrast, most media organisations and industry bodies steadfastly refuse to acknowledge that there is a significant problem.
In the meantime, there are many cases where media organisations are perceived to have stepped over the line and perpetrated gross intrusions, particularly in relation to ordinary people who have no public role — typically victims of accidents or crimes, or relatives of victims or public figures. The fact that the worst intrusions seem to be associated with ‘infotainment’, rather than with serious news and current affairs reporting, compounds the perceived problem.
Claims by the media that the volume and level of complaints do not justify the level of criticism fail to acknowledge that individuals are unlikely to bother complaining if there are, first, no clear and well publicised rules, and second, no basis for confidence that anyone will take the complaint seriously or enforce remedial action.
The media typically claim that the existing self- or co-regulatory mechanisms — the various broadcasting Codes, the Press Council Principles and the Media Entertainment and Arts Alliance (MEAA) Journalists’ Code of Ethics — provide sufficient protection against excessive intrusion and redress in the case of breaches, although there has been some acknowledgement that these Codes may need to be reviewed and updated.
Where there are adverse findings from the self-regulatory watchdogs, competitors to the particular offending media are often quick to ‘beat up’ the breach, and politicians routinely respond by threatening regulation. In 2000, a Senate Committee recommended the establishment of a Media Complaints Commission,[12] attracting withering criticism from media representatives.[13] The Government has yet to respond.
Media organisations are understandably bitterly opposed to legislative controls, even if they take the form of legislatively mandated but independent watchdogs. There is all too much evidence of governments’ inability to refrain from political appointments, funding squeezes and other forms of more or less subtle pressure, in relation to ombudsman schemes and nominally independent tribunals.
Freedom of expression is, of course, vitally important in a liberal democratic society — a value at least as important, and arguably more so, than privacy. But to acknowledge that is not to abandon an attempt to strike an appropriate balance.
The prevailing media view seems to be that — using a topical if somewhat insensitive analogy — any amount of low level collateral damage is an acceptable price to pay for occasional hits on major targets. However, just as in the military context, such a view is highly vulnerable to swings in public opinion. If there are enough cases of collateral damage to the privacy of ordinary people (or even that of public figures and their families) that do not seem to be justified in the public interest, then support for draconian controls that could seriously limit free speech might not be too hard to obtain. This would be an unfortunate overreaction to the problem, with damaging consequences for public discourse.
The outcome of media lobbying over the new private sector privacy regime, which took effect on 21 December 2001, was an exemption for journalism (see article on p156). Section 7B(4) of the Privacy Act 1988 (Cth) provides that acts and practices of media organisations in the course of journalism are wholly exempted from the application of the Privacy Act and the principles it contains, provided that the organisation is publicly committed to observe published media specific privacy standards. The media also won a significant protection for journalists’ sources that has gone almost unnoticed.[14]
The breadth and scope of the exemption depends on the meaning of ‘media organisation’ and ‘journalism’. A media organisation is defined broadly in the Privacy Act as one which undertakes the collection, preparation and dissemination to the public of material having the character of news, current affairs, information or a documentary; or commentary, opinion on or analysis of that material. Journalism is not defined separately. The inclusion of information separately from news, current affairs and documentaries (together with the absence of any limiting definition of those three terms) opens the door for any organisation aiming to publish material (not just the recognised news media) to take advantage of the exemption. The Government has confirmed the breadth of the exemption, giving an example of an issues-based community group being able to use the exemption.[15] The Press Council, while welcoming the exemption for its mainstream print media members, has sensibly expressed concern about its breadth.[16]
The only other constraint is the requirement for a public commitment to published standards — but without any prescribed mechanism for assessing such standards or monitoring compliance, the value of this as a limiting device has to be questioned. The Press Council has developed a new set of Privacy Standards for the print media that aims to meet the condition for the journalism exemption.[17] However, there is no need to seek approval of this by anyone, and no mechanism for ensuring that those committing themselves to it are in fact complying other than through the Press Council’s complaints process, and that only has jurisdiction over members who have voluntarily accepted it. There is nothing to stop any publisher simply declaring a public commitment either to the Press Council standards or to their own self-declared standards.
An example of the potential abuse of the exemption would be the various recent private initiatives to publish details of alleged offenders, either in print or on the internet. Such initiatives would clearly fall within the broad definition of ‘media organisation’, and provided they commit to observing a published code — either their own, or of an industry body such as the Press Council or the MEAA (even if the publishers are not members of these bodies and have no approval nor means of monitoring) — then they are exempt from all of the National Privacy Principles,[18] including obligations to:
This exemption is an extremely serious flaw in the new privacy law.
Privacy advocates have acknowledged the importance of the media ‘fourth estate’ role and called for a more focused exemption which addresses the real freedom of speech issue.[19] This would require a tailored partial exemption only from the collection, use and disclosure, as well as access and correction principles (NPPs 1, 2, 6 and 10). There is no reason why the media should not be subject to the same obligations as other businesses in relation to data quality (NPP 3) and security (NPP 4); overall transparency (NPP 5), identifiers (NPP 7), anonymity (NPP 8), and overseas transfer (NPP 9). The exemption should also only apply to the genuine news and current affairs role of the media. While it will not be easy to devise definitions that cover this role, it is essential that this challenge be faced to prevent the exemption applying inappropriately to the bulk of the entertainment, infotainment and educational output of the media. The answer probably lies in a broad public interest defence or exemption for practices which would otherwise be an interference with privacy. It is often easier to leave judgment as to breaches to the common sense of an adjudicator than to seek excessive abstract definition in formal rules. We should be confident that there would be a general public consensus in any particular case on the boundary between a genuine public right to know and unjustified privacy intrusion merely in pursuit of sales or ratings.
A similar debate in other countries has led to exemptions for the media from some or all privacy principles. The European Data Protection Directive, on which all 15 European Union (EU) member privacy laws are based, requires an exemption where processing of personal data is ‘carried out solely for journalistic purposes and the [exemption] is necessary to reconcile the right to privacy with the rules governing freedom of expression’.[20] The Swedish Supreme Court recently broadly interpreted the relevant exemption in the Swedish Personal Act to encompass a private campaigning website — suggesting that fears about possible abuse of media exemptions are well-founded.[21]
There are of course many other laws that constrain the news gathering and publishing activities of media organis-ations. These range from common law protections against trespass and nuisance (affecting news gathering) and breach of confidence and defamation (affecting publication), through criminal law sanctions against burglary and theft, to specific legislation against interception of communications and surveillance. Surveillance laws in particular have been under review in some States, with a comprehensive new surveillance devices law in Victoria,[22] workplace video specific law in NSW,[23] and both the NSW and Victorian Law Reform Commissions recently considering the need for further changes.[24] An underlying theme, to date, has been acceptance that individuals have no expectation of privacy in a public place. But this simplistic notion is being challenged by increasingly sophisticated surveillance technology that can covertly intrude on activities and even conversations.[25] Clearly the news media would strongly resist any constraint on their ability to film and record activities outside private premises but, once again, the legitimacy of this freedom is inevitably undermined by frivolous abuses in pursuit of infotainment.
The unfortunate experience of defamation law appears to cloud the judgment of media organisations. Their frustration with the way these antiquated laws are used by the rich and powerful to stifle legitimate public scrutiny is understandable. So too is the media’s resistance to the creation of a tort of privacy, either through case law (as seems to be happening with the series of court decisions already mentioned) or by statute. It is unfortunate that many critics of the media seem to see a tort of privacy as being the answer,[26] as it seems almost inevitable that it is primarily the well-heeled plaintiffs in the public eye who would bring actions such as tort — but there is no reason why a modern, well thought out media privacy law, based on accepted privacy principles, should not be drafted in such a way as to avoid this result. As suggested above, a sensible public interest defence could substantially reduce the risk of the law being used as a shield against accountability. It would, however, also be necessary to clarify, and if necessary amend, privacy laws to prevent them being used to withhold information about individuals in performance of their roles as public servants or other publicly accountable positions, such as company directors, elected representatives and public office holders. One of the main reasons for privacy (and FOI) laws having such a bad image in media circles is their (often incorrect) application to block legitimate inquiry about public affairs. It may be necessary to revisit the definition of personal information, perhaps reverting to the concept of ‘personal affairs’ previously used in the Freedom of Information Act 1982 (Cth), but without its narrow interpretation in relation to an individual’s access to their own information.
Rather than kneejerk hostility, a more mature approach by the media to privacy protection could result in a regulatory framework which satisfies public concern about media intrusion. This approach would improve the image and credibility of the media, without endangering freedom of speech or the media’s capacity for public interest reporting and comment.
The media in general continues to spurn the opportunity to create a more effective complaints mechanism for privacy breaches (and potentially for a range of other perceived wrongs) in a relatively benign and sympathetic climate. Far better to design a scheme in such a climate than to have to do so — or have a scheme imposed — in a climate driven by particular actual or perceived abuses. The Press Council has at least taken the initiative to set Privacy Standards[27] (just released) and these Standards can now be assessed against the following suggested benchmarks.
In order to satisfy concerns about media intrusions into privacy, a self-regulatory scheme would have to meet certain criteria in relation to scope, standards, complaint mechanisms and remedies.
In terms of scope, a media scheme should ideally apply seamlessly to all media, although if for whatever reasons print, broadcast and online media are unable to co-operate, separate but similar schemes would be better than nothing. Consistency between the schemes, and with the privacy laws, is desirable for public understanding. Given that there are concerns about other aspects of media behaviour and ethics — including advertising, content, and treatment of sensitive social issues such as suicide and grief — media organisations may wish to consider a wider scheme, covering the full range of issues covered by the existing voluntary codes.
The new Press Council Standards (the Standards) are drafted to be capable of application by any media organisation, but remain privacy-specific. The initial list of organisations committed to the Standards appears to be a subset of the Press Council’s print media membership. It remains to be seen if any non-print media will adopt the Standards.
In terms of Privacy Standards, the scheme should follow as closely as possible the NPPs in the Privacy Act. NPPs constitute the standards that most of the rest of the private sector must follow, and while not perfect, they are the best set of principles currently available in Australia. Consideration could, however, be given to also adopting some of the other principles in the Australian Privacy Charter (developed in the early 1990s under the chairmanship of Justice Michael Kirby) as a benchmark for privacy protection extending beyond information privacy.[28]
The Standards follow the general structure of the NPPs, but there are very significant differences.
Standard 1 (collection) entirely omits the fundamental concept of notification (although declaring a purpose seems to be implicit in Standard 2). Given the propensity of journalists to be less than frank about their intentions when conducting interviews, a more sophisticated treatment of this issue is required. A standard notice may well be inappropriate, but there should be some clear guidelines about when an individual needs to be told that information they are giving may be published or broadcast and/or attributed. Whatever journalists may claim, only seasoned interviewees such as politicians and lobbyists really understand the nuances of ‘off the record’ and ‘for background only’ comments and the unwritten rules about the default status of conversations.
Standard 1 contains a welcome qualification to the general rule that public figures are fair game.
Standard 2 is generally sound, and contains a useful commitment to proportionality in publication — that is, the minimum necessary in identifying or locating particulars. But the Standard does rely heavily on the individual’s reasonable expectation as to the purpose for which the information will be used — and this comes back to the adequacy of notification or explanation under Standard 1.
There is no Standard dealing with access by individuals to information about themselves, and there is no explanation as to why it is not regarded as possible or appropriate for media organisations to grant this key right. There is clearly a need for some modification of the right of access in a media context — it would be unreasonable to grant access while a story was in preparation, or to drafts and details of sources (or to obituaries!). But there will be much other factual information held by media organisations that individuals should have a right to see.
A limited right of correction is incorporated in Standard 6, but it appears to concede the need for remedial action only where there is a ‘harmful’ inaccuracy. The right to correct factual information should not be qualified.
The anonymity principle (NPP 8) has been confused in the version that appears as Standard 5 which is about non-disclosure. It is not about allowing individuals to deal with the media organisation anonymously.
The Press Council has adopted its own existing sensitive information categories (race, religion, nationality, colour, country of origin, gender, sexual orientation, marital status, disability, illness and age) for the purposes of Standard 7, which requires media organisations not to place ‘gratuitous emphasis’ on such information ‘except where it is relevant and in the public interest’. This half-hearted commitment, besides being clumsily worded (do they really mean that gratuitous emphasis can sometimes be justified?), is no substitute for NPP 10, which applies to a wider range of information and requires consent for collection as a starting point. As with access, the media could no doubt make a case for a modified rule concerning sensitive information — but Standard 7 does not do so.
On the basis of the omission of the access principle alone, the Standards cannot be seen as dealing adequately with privacy. But unfortunately, the Privacy Act exemption does not impose any criteria or provide for any independent assessment of the adequacy of the Standards.[29]
In terms of complaint mechanisms, the watchdog should be clearly separated from any other role such as defence of press freedom. The Press Council is fatally flawed by the conflict of interest between its two roles — all other self-regulatory ombudsman or alternative dispute resolution (ADR) schemes in Australia recognise this and have been established separately and independently from the initiating industry body.[30] The Privacy Commissioner’s Code Development Guidelines and the prescribed Standards for Pt IIIAA Codes include minimum standards of independence and composition for Code Adjudicators that could be used as a benchmark for a media scheme whether or not it is intended to be registered under the Privacy Act.
In terms of remedies, the ADR scheme needs to be seen to have more ‘teeth’ than the existing Press Council complaints process. The Press Council persists in the laughable belief that requiring a media organisation to publish the Complaints Committee adjudication is a major sanction. Most adjudication is written in dry legalese, which does not self-evidently communicate that there has been a breach unless the reader persists to the very end. Not only does most adjudication appear buried in places where it is unlikely to be read, but some publishers even have the nerve to ‘challenge the umpire’s decision’ in the same piece. If there was a requirement to put the adjudication as a front page article with an appropriately dramatic headline, it might have some deterrent effect. Currently, it cannot credibly be suggested that most publishers regard an adverse Press Council adjudication as more than a mild slap on the wrist, which may or may not lead to some minor systemic change in the organisation’s policy, if not to a change in actual behaviour.
The power of adverse publicity, which is almost certainly exaggerated by all self-regulatory schemes that rely on it as the principal sanction, is in any case much weaker in an industry such as the media, which hardly has a high public reputation for ethical behaviour. Most readers or viewers are likely to see an adverse finding more as confirmation of their already low opinion and expectations of all media than as a reason to change allegiances. Experience shows that poor behaviour by media organisations is unlikely to be punished either by circulation or ratings losses,[31] or by falls in their share price — unlike the situation in some other industries.[32]
It is difficult to avoid the conclusion that the only effective sanction is, at least, the potential for monetary loss — awards of compensation for emotional distress, inconvenience and so on, and/or fines. These need not be substantial — a sensible cap of a few thousand dollars would dispel any fear that a privacy complaints regime would become another defamation ‘honeypot’. But the cumulative effect of repeated payouts for breaches of privacy would attract the attention of accountants and senior management in a way that mere chastisement cannot. The reporting of payouts (no doubt gleefully) by rival media would also attract more public attention and register more with them as a real judgment of misconduct.
The private sector amendments to the Privacy Act are due to be reviewed by 2004 at the latest.[33] The journalism exemption, while dangerously broad, at least gives bona fide media organisations another chance to come up with a self-regulatory scheme that could, if properly designed, stave off demands for legislative controls including a statutory privacy tort (at least for the foreseeable future) or at least ensure that any subsequent statutory controls strike an appropriate balance.
The Press Council Privacy Standards, while a marginal improvement on their general principle concerning privacy, fall well short of the standards required, and the associated complaints mechanism remains fundamentally flawed. Whether or not those Standards are adopted by other non-print media, they are not the answer.
Privacy rights and a free and effective media should not be incompatible. It is time for privacy advocates and media organisations to call a truce and co-operate in the design of a new framework of accountability. v
Nigel Waters, Associate Editor, PLPR; Convenor, Australian Privacy Charter Council; Visiting Fellow, Faculty of Law, UNSW.
[1] Douglas v Hello! Ltd EWCA Civ 353 (21 December 2000). See also Horton J ‘The developing right to privacy — at common law’ (2001) 7(10) PLPR 206.
[2] Australian Press Council News November 1999 Vol 11 No 4 at 3. This is also available at <www.presscouncil.org.au/pcsite/pubs.html>.
[3] See contributions to <www.politechbot.com/> and <www.epic.org>.
[4] An example of a recent case occurred in May 2001, when Channel 9’s A Current Affair program sent a concealed camera into the home of the former director of the failed HIH Insurance.
[5] Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63. See also various articles in (2002) 8(7) PLPR.
[6] The UK Court of Appeal held last year, in a similar ‘hidden camera’ case, that companies do have a right to privacy — but under the Broadcasting Act 1996 (UK), not the Data Protection Act 1998 (UK): R and Broadcasting Standards Commission: Ex parte BBC EWCA Civ 116 (6 April 2000).
[7] See the Australian Press Council’s submissions to the Federal Attorney General (13 October 1999) and to the House of Representatives Standing Committee on Legal and Constitutional Affairs Inquiry on the Privacy Amendment (Private Sector) Bill 2000 (No 118).
[8] Pearce Professor D ‘Is Privacy Dying?’ Australian Press Council News November 1998. This is also available at <www.presscouncil.org.au/pcsite/pubs.html>.
[9] Survey results are available at <www.privacy.gov.au>. Unfortunately this and other surveys have not asked specifically about media privacy.
[10] Communications Law Centre Privacy and the Media research paper No 4 October 1997.
[11] Snell R ‘Salvaging the planks from the Good Ship Open Government’ FOI Review No 92 (April 2001).
[12] Senate Select Committee On Information Technologies In the Public Interest: Monitoring Australia’s Media (April 2000), which is also available at <www.aph.gov.au/senate/committee/it_ctte/selfreg/index.htm>.
[13] See, for example, Australian Press Council News August 2000 Vol 12 No 3 p 1. This is also available at <www.presscouncil.org.au/pcsite/pubs.html>.
[14] See Privacy Act 1988 (Cth) s 66(1A).
[15] Attorney General’s Department Privacy and the Media Fact Sheet (December 2000). This is available at <www.law.gov.au/privacy/newfacts/media.html>.
[16] Australian Press Council News February 2001 Vol 13 No 1 p12. This is also available at <www.presscouncil.org.au/pcsite/pubs.html>.
[17] Australian Press Council News November 2001 Vol 13 No 4. This is also available at <www.presscouncil.org.au/pcsite/pubs.html>.
[18] The National Privacy Principles (NPPs) are listed in Sch 3 of the Privacy Act 1988 (Cth).
[19] See, for example, the Australian Privacy Charter Council’s submissions to the Parliamentary Committee on the Privacy Amendment (Private Sector) Bill 2000.
[20] European Parliament and Council Directive 95/46/ EC art 9 (deals with the protection of individuals regarding processing of personal data and the free movement of that data). This is available at <europa.eu.int/comm/internal_market/en/dataprot/law/index.htm>.
[21] See Bygrave L ‘Balancing data protection and freedom of expression in the context of website publishing — recent Swedish case law’ (2001) 8(4) PLPR 83.
[22] Surveillance Devices Act 1999 (Vic).
[23] Workplace Video Surveillance Act 1998 (NSW).
[24] NSW Law Reform Commission Inquiry into Surveillance report. See also Victorian Law Reform Commission Privacy Law: Options for Reform Information Paper June 2001, which is available at <www.lawreform.vic.gov.au>.
[25] See the Victorian Law Reform Commission, above note 24 at 42.
[26] Communications Law Centre, above note 10 (the article focused on self-regulation, common law and statutory torts almost to the exclusion of privacy law).
[27] Australian Press Council Privacy Standards 2001 available at <www.presscouncil.org.au/pcsite/priv_stand.html>.
[28] See <www.apcc.org.au>.
[29] Privacy Act 1988 s 7B(4).
[30] Examples include the Australian Banking Industry Ombudsman (ABIO) — separate from the Australian Bankers Association (ABA); the Insurance Enquiries and Complaints Ltd (IEC) — separate from the Insurance Council of Australia (ICA), and the Direct Marketing Code Authority — separate from the Australian Direct Marketing Association (ADMA).
[31] As evidenced by the lack of a significant consumer reaction to the Australian Broadcasting Authority’s ‘cash for comments’ inquiry in 2000, and by continued success of tabloid newspapers around the world which are widely acknowledged to frequently transgress accepted industry standards.
[32] Recent abuses of privacy by major businesses in the US led to significant falls in their stock market valuation, and there have been effective consumer boycotts of businesses around the world for unethical or environmentally damaging behaviour.
[33] The last Government, now re-elected, publicly committed to a review by the Privacy Commissioner two years after the Privacy Act took effect in December 2001.
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