Sauer, Glen --- "Media exemption from new privacy obligations" [2002] PrivLawPRpr 2; (2002) 8(8) Privacy Law and Policy Reporter 156

Media exemption from new privacy obligations

Glen Sauer

The National Privacy Principles (NPPs)[1] have applied to the private sector since 21 December 2001. However, the media should be aware that certain practices in which they may engage will not have to comply with the new privacy obligations.

Media exemption

The Privacy Act 1988 (Cth) provides that the NPPs will not apply to acts and practices of media organisations carried out in the course of journalism.[2] By providing this exemption, thePrivacy Act recognises the role of the media in keeping the Australian public informed. The Office of the Federal Privacy Commissioner has stated that this exemption aims to balance the public interest in allowing a free flow of information to the public through the media and a person’s right to privacy.

A ‘media organisation’ is defined in the Privacy Act as an organisation whose activities consist of or include collecting, preparing or disseminating news, current affairs, information or documentaries, or commentary or opinion on or analysis of such material to the public.

The Commonwealth Attorney General has stated that the term ‘journalism’ is intended to have its everyday meaning and to apply in a technologically neutral way.[3]

Activities of a media organisation that are not carried out in the course of journalism will have to comply with the NPPs.

Media organisations must publicly commit to observing published standards if they wish to avail themselves of the exemption for media organisations, as the exemption only applies where the media organisation can show that it has publicly committed itself to observing published standards that deal with privacy. For example, a media organisation can demonstrate that it is a member of a media industry body that requires its members to subscribe to a published code of ethics dealing, perhaps amongst other things, with privacy.

Other media-friendly provisions under the Act

A range of other provisions in the Privacy Act also recognise the important role that the media plays in facilitating the free flow of information to the public. Importantly, it is not an offence for a journalist to refuse to give information, answer a question or produce a document or record which is sought under legislation, where this would tend to reveal the journalist’s confidential source.

The Privacy Act also recognises that public interest in the free flow of information from the media to the public may compete with the right to privacy. The Privacy Commissioner and approved Privacy Code Adjudicators will be required to take these competing interests into account when considering complaints. v

Glen Sauer, Lawyer, Blake Dawson Waldron.

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[1] Privacy Act 1988 (Cth) Sch 3 contain a list of the NPPs.

[2] Section 7B(4).

[3] See Attorney General’s Department Privacy and the Media Fact Sheet which is available at <law.gov.au/privacy/newfacts/Media.html>.