A reasonable expectation

INEZ RYAN looks at the likely impact on the press of the Law Reform Commission's Review of Privacy

On 8 August 2008 the Australian Law Reform Commission (ALRC) released its long-awaited report on privacy in Australia. The report is extensive, detailed and, at 2,694 pages over three volumes, somewhat verbose. The report covers a lot of ground, much of it of limited relevance to the press, and to the Press Council. But those sections of the report that do concern the media will have a profound impact, if the ALRC's recommendations are translated into legislation.

The report deals with many aspects of privacy invasion including the developments in technology, cross-matching of data, impacts in areas like credit rating and health information and impacts on children and young people. It also looks in detail at the current federal Privacy Act, and examines many of the exemptions including those applying to small businesses and to political parties. The activities and actions of the Office of the Federal privacy Commissioner are also dealt with.

There are two aspects of this review of privacy law that primarily concern the media. The first is the media exemption to the existing privacy legislation and the second is the proposed introduction of a statutory cause of action for breach of privacy.

Journalism exemption

Chapter 42 of the report deals with the current media exemption. Section 7B(4) of the Privacy Act states that an act that is performed by a media organisation, in the course of journalism, is exempt, provided that the organisation is publicly committed to a set of privacy standards. At present, the legislation does not attempt to define "journalism", while "media organisation" is defined as an organisation whose activities include the collection, preparation for dissemination, or dissemination, of material having the character of news, current affairs, information or a documentary, or material consisting of commentary or opinion on, or analysis of, news, current affairs, information or a documentary.

In response to concerns that the scope of the media exemption is too broad, the ALRC has recommended that a definition of journalism be inserted into the Act and that the privacy standards to which media organisations must be committed in order to claim the exemption must be "adequate". The ALRC has also adopted the Privacy Commissioner's suggestion that the "media exemption" should be renamed the "journalism exemption".

Journalism defined

The rationale of the ALRC in introducing a definition of journalism appears to be, in part, that in determining what is journalism, the focus should not be on the nature of the organisation publishing the material but rather on the nature of the material being reported. The intention seems to be that the exemption should be available to journalists who work outside of the traditional models of publishing and broadcasting, thereby extending the exemption to bloggers, citizen journalists, freelancers and independent or fringe publishing endeavours.

The formulation which the ALRC has proposed be used as the definition of journalism is as follows:

The Privacy Act should be amended to define 'journalism' to mean the collection, preparation for dissemination or dissemination of the following material for the purpose of making it available to the public:

1. material having the character of news, current affairs or a documentary;
    
2. material consisting of commentary or opinion on, or analysis of, news, current affairs or a documentary; or
    
3. material in respect of which the public interest in disclosure outweighs the public interest in maintaining the level of privacy protection afforded by the model Unified Privacy Principles.

What would this mean in practice? What is meant by news and current affairs? The ALRC has indicated that the words should be interpreted according to their ordinary meaning. But there is a certain degree of subjectivity involved in deciding which items can be categorised as news or current affairs and which items cannot. Some subjects will obviously fall within the category of news: reports of accidents, crimes or government decisions, for example. Where there is a strong public interest component a story should satisfy the definition of journalism. Conversely, there are certain stories that cannot reasonably be considered to be news or current affairs. Reports that involve the intimate activities of private individuals in their own homes may not be considered news or current affairs unless there was a public interest dimension to the report. But there will be a class of reports that will fall into a grey area. Is a celebrity wedding news or current affairs? If a public figure has a private conversation in a public place that is overheard, is that news? Would it depend on the public interest content of the conversation? Would it depend on whether covert means were used to record the conversation? The precise parameters of news and current affairs cannot be known until the courts have considered the meaning of the words. (It is interesting to note that the terms in the current exemption, including 'media organisation' and 'journalism' have not as yet been tested in court.) In the absence of any court ruling on what is or is not journalism under the definition proposed by the ALRC, editors will be faced with a choice: publish and take the risk of incurring significant legal expenses, or self-censor in order to avoid that risk.

Similarly ambiguities surround the concept of a documentary. If a documentary concerns the private life of a public figure, will it satisfy the definition of journalism? Many such documentaries have been produced in recent years - notably with regard to the private lives of members of the British royal family. Presumably, if a public interest component can be established, a documentary can claim to be exempt from privacy law but, if not, the situation is less clear.

Media organisation

The ALRC, in its report, recommends a reformulation of the definition of "media organisation". The stated reason for the proposed simplification of the definition is to remove any circularity in the definition. The current definition of media organisation is:

"media organisation" means an organisation whose activities consist of or include the collection, preparation for dissemination or dissemination of the following material for the purpose of making it available to the public:

1. material having the character of news, current affairs, information or a documentary;
    
2. material consisting of commentary or opinion on, or analysis of, news, current affairs, information or a documentary.

This is the definition proposed by the ALRC to replace it:

The definition of 'media organisation' in the Privacy Act should be:

1. amended to 'an organisation whose activities consist of or include journalism'; and
    
2. expanded to include an agency that has been specified in the regulations. The regulations should specify, at a minimum, the Australian Broadcasting Corporation and the Special Broadcasting Service.

The rationale of including clause (b) is to address the concerns on behalf of the ABC that public broadcasters might not fall within the existing definition. The altered definition of media organisation would not seem to pose any major problems for publishers, apart from the fact that it refers back to journalism as it is to be defined in the legislation.

As a result the proposed new journalism exemption would apply to organisations whose activities consist of or include journalism, in the course of journalism and who have publicly subscribed to a set of privacy standards. How this would then apply to the sort of individuals, like bloggers, citizen journalists and freelancers, whom the ALRC wants to ensure are included in the exemption is not clear. But it could be a field day for lawyers who want to find out. And for those with enough cash to use the courts in an attempt to shield their activities from public scrutiny.

Privacy standards

In its report the ALRC expressed the view that current media privacy standards are "lacking in scope and detail" and are "lax in several respects". The report made specific reference to the Press Council's Privacy Standards, which it says contain no equivalent of National Privacy Principles 1.3 (the obligation to inform individuals about whom an organization has collected personal information) or 9 (transborder data flows). In order to address this concern the ALRC has recommended that there be requirement in the legislation that media privacy standards be "adequate":

Recommendation 42-3 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 (whether or not the standards also deal with other matters).

Recommendation 42-4 The Office of the Privacy Commissioner, in consultation with the Australian Communications and Media Authority and peak media representative bodies, should develop and publish:

1. criteria for adequate media privacy standards; and
    
2. a template for media privacy standards that may be adopted by media organisations.

Organisations committed to media privacy standards that fail to comply with the criteria to be established by the Privacy Commissioner will risk losing the benefit of the media exemption. The comments of the ALRC with respect to the Press Council's privacy standards imply that journalists who collect information about an individual will be obligated to inform that individual that the information has been collected and how it will be used. This may present a significant burden to journalists, particularly those involved in investigative journalism. It might also pose a direct threat to one of journalism's strongest ethical tenets: the protection of the identity of confidential sources of information. The ALRC also suggested that sanctions and enforcement mechanisms could be taken into account in determining the adequacy of privacy standards. If the ALRC's recommendations on the role of the Privacy Commissioner with respect to media privacy standards are adopted, it is crucial that the Privacy Commissioner consult extensively with media professionals in order to ensure that any criteria for adequate media standards are workable.

Cause of action

While the changes to the media/journalism exemption to the Privacy Act will be of concern to many media professionals, they will be of far less significance that the threat of a tort for breach of privacy. Chapter 74 of the ARLC report deals with the need to protect personal privacy and considers different models for doing so. The chapter concludes by recommending that federal legislation provide for a statutory cause of action for serious invasion of privacy. The test that is preferred by the ALRC is that there must have been "a reasonable expectation of privacy" and the conduct complained of must be "highly offensive to a reasonable person of ordinary sensibilities". The ALRC also recommends the public interest in maintaining the claimant's privacy be weighed against other notions of the public interest, including the public interest in freedom of expression. The report favours a formulation that includes a non-exhaustive list of the categories of conduct that would be actionable. The recommendation is that this list should include the following:

1. where there has been an interference with an individual's home or family life;
    
2. where an individual has been subjected to unauthorised surveillance;
    
3. where an individual's correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed; or
    
4. where sensitive facts relating to an individual's private life have been disclosed.

The ALRC's favoured test sets the threshold for actions at a reasonably high level. The requirement that the conduct complained of be highly offensive should exclude actions for trivial breaches of privacy. Even so, the introduction of the cause of action has the potential to act as an impediment to some journalistic activities. The extent of any such impediment is difficult to predict. The use of covert surveillance can be expected to provide the basis for a cause of action, as would the publication of images of individuals involved in intimate acts, but the limits on other journalistic activities may not be so clear. Photographing private individuals in public places is one area where doubt can be expected to arise. Recent cases overseas, including Mosley, Naomi Campbell, Princess Caroline Von Hannover and Douglas v Hello might give some hints as to where the line is likely to be drawn, but only the introduction of legislation and the subsequent running of test cases can accurately determine what journalists will be able to do with impunity in the future. Another field day for lawyers and for those with enough cash to use the courts to shield their activities from public scrutiny.

The ALRC has recommended that the media/journalism exemption should not extend to actions brought for breach of privacy, i.e. acts done in the course of journalism would still be subject to civil action, even if such acts are exempt from other obligations under the Privacy Act. So, for example, publishing information about an individual that would not result in a prosecution for breaching the Act may nonetheless give rise to a cause of action for breach of privacy.

The unavailability of the journalism exemption will be compounded by the narrow defences recommended by the ALRC. Of the three potential defences recommended, the only one that can be considered to be of any utility to the media is that the publication is privileged under defamation law. When considering whether the particular conduct of a journalist in pursuit of a specific story can be defended on the basis of privilege, or whether such conduct can be considered to be outside the scope of the cause of action, the public interest will be of paramount importance. But where there is no obvious public interest in publishing material, the two primary arguments that defendants would be expected to pursue are that any expectation of privacy on the part of plaintiffs was not reasonable, or that a reasonable person would not have found the journalist's conduct of the journalist to have been highly offensive.

In the Council's view, any set of defences that does not allow for a public interest test to be applied would be deficient, especially in the light of the fact that, unlike comparable democracies, Australia has neither a constitutional nor a legislated protection of freedom of communication against which any legislated protection of personal privacy can be weighed.

Remedies

Publishers, editors and journalists who are concerned about the inception of a statutory cause of action for breach of privacy are likely to be chiefly anxious about the legal and damages costs incurred in defending themselves against such actions - and rightly so, since the damages awards can be expected to be comparable with those awarded in defamation cases. But more troubling is that the ALRC has recommended that remedies to be made available to plaintiffs should include injunctions. This raises the spectre of SLAPP writs: court orders being used to gag the media from pursuing a story that might have a significant public interest. Individuals who bring actions with the sole intention of preventing or delaying publication of embarrassing material may ultimately lose in court, but journalists who have limited resources may be forced to stop publication because they cannot afford to defend themselves.

Timetable for reform

The reforms recommended by the ALRC can be expected to have a dramatic impact on the publishing and broadcasting industries in Australia. But it is not clear when the reforms will be implemented or the extent to which the Government will adhere to the ALRC's recommendations. The Special Minister of State, John Faulkner, has simply stated that reforms to privacy will be considered by the government in stages, and that those reforms mainly impacting upon the media - changes to exemptions in the Privacy Act and the statutory cause of action - will not be considered until the "second stage" of privacy reform. When quizzed by journalists about the likely impact on media reporting, Faulkner emphasised that these reforms were "not a priority", as far as he was concerned.

Last Word

Privacy has been on the legal reform agenda for some time and no journalist or editor should be surprised that the ALRC has recommended a statutory cause of action or, for that matter, that the media exemption should be revised. Now that the proposals are on the table, it is time to take action on a Bill of Rights, so that any statutory protection of personal privacy is balanced by a protection of freedom of communication.

Inez Ryan

[Editor's note: In its consideration of whether the privacy standards used by the media adequately address the Privacy principles, the ALRC is critical of the Press Council's Privacy Standards for the Print Media. In doing so it continues to rely on a 2002 article, largely written before the Privacy Standards had been applied to a single case. It notes that one NPP and part of another are missing from the Press Council's Standards. In one case the omission was because of to protect the ability of journalists to protect confidential sources and the other because its remit as an overseer of the Australian print media means that it has no role in transborder information flows. The ALRC should be well aware of this as is the Office of the Privacy Commissioner, which was consulted during the development of the Press Council's Standards and made no objections to them at the time.]

For more information on the Council's views on privacy
go to the privacy overview.

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