Privacy and the Media

This page explains the APF’s campaign on this topic, running since 2007

The APF’s Policy Statementof March 2009

Contents

The Sorry Story – 1970 to 2007

Since the emergence of privacy as a major public issue about 1970, policy discussions have continually ducked away from the question of the media’s impact on privacy. Politicians are dependent on the media for sympathetic treatment, and are seldom eager to pick fights.

The private sector amendments to the Privacy Act in 2000 were littered with exemptions and exceptions in response to industry association lobbying. The media was granted an exemption – “An act done, or practice engaged in, by a media organisation is exempt … if the act is done, or the practice is engaged in …by the organisation in the course of journalism …” – s.7B(4).

The exemption was (very) lightly qualified – “[provided that] the organisation is publicly committed to observe standards that deal with privacy in the context of the activities of a media organisation … and have been published …”. This gave rise to a flotilla of industry and corporate statements that provided a veneer of respectability, but no effective privacy protections.

These pretences at ‘self-regulation’ included the Australian Press Council’s Privacy Standards, and the Register of Codes of Broadcasting Practice administered by the Australian Communications and Media Authority (ACMA). Those Codes include that of the ABC, which says (in total) “The rights to privacy of individuals should be respected in all ABC content. However, in order to provide information which relates to a person’s performance of public duties or about other matters of public interest, intrusions upon privacy may, in some circumstances, be justified”.

The New World from 2007

The media world is undergoing rapid change under the influence of digital transmission, and now is the time to codify the vast amount of experience that’s been gained about what’s fair, and what’s unfair, in relation to the collection and publication of personal data.

The Australian Law Reform Commission (ALRC) undertook a study of privacy law during 2007-08. The ALRC recommended in late 2008 that “The Privacy Act should be amended to provide that media privacy standards must deal adequately with privacy in the context of the activities of a media organisation” (Recommendation 42.3), and that consultative processes should lead to “a template for media privacy standards thatmay be adopted by media organisations” (42.4). These recommendations underminethe freedom granted in the Privacy Act for the media to set whatever low, oreven emptystandards they wish.

The ALRC further recommended that “Federal legislation should provide for a statutory cause of action for a serious invasion of privacy … restricted to intentional or reckless acts” (74.1-74.7). (Irresponsible media commentators knee-jerked against this recommendation, and misrepresented its scope, seeking to sully its reputation). The ‘statutory tort’ will only ever be applicable in casesof quite serious and distinctly unreasonable breaches, but it will be a valuable adjunct to the properly articulated ‘media privacy standards’that the ALRC has called for.

In August 2009, the NSW LRC also recommended a statutory cause of action, again carefully designed to achieve balance among the many competing interests. Media commentators again wilfully misrepresented the proposal as though it were an unjustified attack on media freedoms.

APF’s Actions in 2007-09 – Summary

1.The ALRC Study

The APF provided a comprehensive set of submissions to the ALRC during 2007-08. Among these was strong and specific support for action on privacy and the media.

2.The ARTK Coalition

In parallel with the ALRC Study, a cluster of major media organisations formed the Australia’s Right To Know Coalition (ARTK). Its primary purpose was to lobby for major improvements to the country’s Freedom of Information legislation and practice.

The APF’s submissions to the ARTK Study during 2007-08 strongly supported improvements to FOI, while making clear that privacy required far greater protection.

3.The APF’s ‘Privacy and the Media’ Policy Statement

In early 2009, the APF published its Policy Statement on ‘Privacy and the Media’. This proposed a Framework, and more detailed Guidelines.

4. Promotion

In May 2009, the APF followed that up with letters to ARTK and to the professional body Media Alliance, and to a dozen leading schools of journalism, and postings to mailing-lists.

The Chair wrote a piece called ‘Why it’s time for guidelines on ‘privacy and the media”, which was published in Online Opinion on 18 May 2009.

Letters to the Privacy Commissioner and ACMA were sent, seeking assurance that consultation concerning changes to privacy law in this area would not be limited to business, but would extend to the APF and other public interest groups.

APF issued a Media Release in August 2009, supporting the NSW LRC’s recommendation of a statutory privacy tort, and explaining why it is not a threat to the media.

In August 2009, we sent a letter to the ABC’s Managing Director, proposing an upgrade to the ABC Code.

Board Members to Contact for Media Comment

Nigel Waters – (02) 4981 0828 or 0407 230 342; or Roger Clarke – (02) 6288 1472

APF Resources