Privacy Law and Policy Reporter
Chris McLeod THE HERALD AND WEEKLY TIMES LIMITED
The ability of government to deal with advances in technology is under the spotlight again thanks to mobile phones that double as digital cameras. Two recent incidents have prompted hasty promises of action and highlighted the lack of a uniformity across state and territory boundaries.
Once again the media finds itself in the middle on the issue of privacy. While the Commonwealth Privacy Amendment (Private Sector) Bill 2000 took a reasonably sensible approach, generally exempting journalism from the legislation’s purview and allowing the press to do its job under a system of self-regulation (via the Australian Press Council), the States and Territories are also heavily engaged in privacy legislation, in the name of controls on such things as health information and surveillance devices.
And they’ve been quick to jump up and down about the camera-phone incidents involving published images of convicted insider trader Rene Rivkin in Silverwater Gaol and the use by unsavoury types of their camera-phones to photograph children getting changed in dressing rooms at swimming pools and gyms.
Victoria and Western Australia now have surveillance devices legislation that restricts how photographs of private activity may be taken and/or used. The NSW Law Reform Commission is considering even more draconian limitations on surveillance devices although the State already has extant legislation restricting covert surveillance in most circumstances.
There were calls for bans on camera-phones. The Victorian Attorney-General has referred the matter to his Law Reform Commission which is already looking into workplace privacy and privacy in public places. Similar calls for legislation have been made in Tasmania and NSW.
But, as Federal Privacy Commissioner Malcolm Crompton noted, any move to draft new laws restricting the use of telephone technology needed to be considered with care. ‘Think about how we could get it wrong if we are too hasty,’ he said. ‘We could interfere with grandma taking pictures of her three year old grandson. It is an extremely complex issue and it is clear that we need this public debate before reaching for the law books.’
The press should pay careful attention to what’s been foreshadowed, too. Nobody wants to defend the people who would take pictures secretly in a children’s locker room or swimming pool changing room. But the words of a spokesman for the NSW Attorney-General should send a shiver through the press:
We are looking at creating a new offence which relates to the capture and use of an image. The laws will protect people from having their images taken and used in an offensive manner without their knowledge.
The latest photographic technology available to the press allows photographs to be taken on a digital camera and transmitted directly to a newspaper office or website using mobile phone technology. It should be immediately obvious that the kind of crackdown being spoken about may well impact on the ability of the press to do its job.
Victoria and Western Australia already have legislation that would deal with such things: the Surveillance Devices Act 1999 (Vic) and the Surveillance Devices Act 1998 (WA). They’ve converted their listening devices legislation to cover surveillance devices. And it is already quite restrictive.
A stated purpose of the Victorian Act is ‘to restrict the communication and publication of records of private conversations and activities obtained through the use of surveillance devices’. The Act contains the following definitions.
• ‘[O]ptical surveillance device’ means any device capable of being used to record visually or observe a private activity, but does not include spectacles, contact lenses or similar device used by a person with impaired sight to overcome that impairment [s 3].
• ‘[P]rivate activity’ means an activity carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be observed only by themselves, but does not include —
(a) an activity carried on outside a building; or
(b) an activity carried on in any circumstances in which the parties to it ought reasonably to expect that it may be observed by someone else ... [s 3].
• ... a person must not knowingly install, use or maintain an optical surveillance device to record visually or observe a private activity to which the person is not a party, without the express or implied consent of each party to the activity [s 7(1)].
• ... a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or tracking device [s 11(1)].
So private activity may be recorded by one of the parties to it but the recording cannot be published without the consent of all parties.
The prohibition on communication or publication of private conversations or activities does not apply:
(a) to a communication or publication made with the express or implied consent of each party to the private conversation or private activity; or
(b) to a communication or publication that is no more than is reasonably necessary —
(i) in the public interest; or
(ii) for the protection of the lawful interests of the person making it; or
(c) to a communication or publication in the course of legal proceedings or disciplinary proceedings [s 11(2)] ...
What constitutes public interest is the significant feature of the defence the press might want to use. The courts are yet to determine this question.
The Victorian law would also seem to pretty much cover the Rivkin situation and covert photography at swimming pools and gyms, with or without publication.
So what might the Victorian Law Reform Commission’s brief to investigate surveillance in public places come up with? It already has been suggested that publication, without permission, of pictures of people taken in public places will come under attention.
A discussion paper is expected later this year.
Any proposals that restrict the ability of the press to record news events and present information to the public in pictorial form will have to be resisted aggressively.
The losers in such circumstances will be the public.
Governments everywhere would do well to heed the advice of Mr Crompton. Give it careful thought.
It would be a travesty if legitimate attempts to deal with unsavoury conduct had unintended consequences on the freedom of the press. l
It is understood that the State and Federal Attorneys General Departments are currently reviewing surveillance laws with a view to uniform legislation —Associate Editor.
Chris McLeod is Editorial Development Manager, The Herald and Weekly Times Limited, and an Industry member of the Australian Press Council. A shorter version of this article appeared in the Press Council News, August 2003.