New Privacy Act

A new Act, governing privacy in the private sector, has implications for the press. Jack R Herman summarises.

During the last weeks of last year, the Privacy Amendment (Private Sector) Act 2000 was passed. This new legislation places obligations on the private sector which are designed to protect Australians' privacy, similar to provisions that already affect the public sector. Under the legislation, private organisations are subject to the application of the National Privacy Principles where there is not an organisation or industry-wide privacy code that has been approved by the Privacy Commissioner. (These principles lay down guidelines on, amongst other things, how personal information may be collected, used and disclosed and what rights parties have to access and correct their personal information.) A key exemption in the legislation covers the media.

The exemption for the media provides that acts engaged in by a 'media organisation' are exempt if the act is done by the organisation in the course of 'journalism'. However, the Act specifies that media organisations, like all such private entities, must be publicly committed to observing privacy standards that have been published in writing by the organisation or by a body representing the media industry or a section of it.

The Act defines 'media organisation' but has no definition of 'journalism'. This means that what defines 'journalism' for the purposes of the Act will be something for the courts to determine. A "media organisation" is defined as an organisation whose activities include the collection, preparation for dissemination or dissemination of material that either:

• has the character of news, current affairs, information or a documentary or
• consists of commentary or opinion or analysis of news, current affairs, information or a documentary for the purpose of making that material available to the public.

Industry code

The Australian Press Council, in discussions with its constituent bodies (the major print media proprietors), the federal Attorney-General and the Privacy Commissioner, has undertaken to develop a privacy code for the print media and to oversee its enforcement provisions. There is also no formal necessity for the Privacy Commissioner to have input into the standards or to certify that the standards meet a particular benchmark but the Act requires that the privacy code be submitted to the commissioner and the Council expects that the commissioner will be very outspoken if the standards were not to meet his requirements.

Currently, principle 3 of the Council's Statement of Principles, says that "Readers of publications are entitled to have news and comment presented to them honestly and fairly and with respect for the privacy and sensibilities of individuals. However, the right to privacy should not prevent publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports, if published at all, should be identified as such." The Council, in consultation with its constituent bodies, is expanding this principle into a wide-ranging code, based on industry codes in use by various publishers. In effect, the Council will provide a detailed set of provisions to supplement the existing general statement of principles.

The Council would also act as the administrator of the privacy code, using its alternate dispute resolution processes, and complaints procedure, to deal with complaints.

Definition debate

In terms of the exemptions in the Act, there remains concerns with the definition of the term "media organisation". As currently defined, "media organisation" is very wide and could include many websites which would not be seen as traditional media organisations. The major limitations of the definition are that it refers solely to acts engaged in by the organisation "in the course of journalism" and when the organisation is publicly committed to a privacy code. This is where the absence of a definition of 'journalism' becomes a matter of concern.

The original draft of the Bill contained a definition of 'journalism' which, in the legislation, by its reference to activities of media organisations, appeared to be circular. For this reason, it was removed. This leaves open to later decision by the Courts (or perhaps the Privacy Commissioner) as to what is to be meant by 'journalism' in the Act.

Insofar as the Council's constituent bodies are concerned, they would all appear to fall under the definition of 'media organisation' in the Act (with one possible exception) and be subject to the exemption, provided they subscribe to the privacy code developed by the Council or develop their own code. The concern to be addressed might be whether 'lifestyle' magazines, the infotainment end of the print media, are engaged in journalism.

JACK R HERMAN

See also
Index on privacy matters on this website

Return to APC News 2001 Index

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