Australian Press Council Submissions to the Australian Law Reform Commission in response to its inquiry into the Privacy Act 1988

8 August 2006

Executive Summary

The Australian Press Council argues that questions of privacy require acknowledgement of the balance between private rights and the public's right to know and that any developments must stress the public interest as an appropriate criterion. As the body which administers the Privacy Standards for the Print Media under the media exemption in the Privacy Act 1988, the Council submits that the media exemption inserted into the Act is working well, that the Council's experience indicates that an appropriate balance between the flow of information on matters of public concern and individuals' rights to privacy in their private affairs has been struck. The Council also appends a brief summary of the privacy matters with which it has dealt since the introduction of the media exemption.

1. Questions of privacy

A number of issues with potential to impact on the ability of the press freely to report matters are related to conflicts between private rights and the right of the public to information on matters of public concern. One of the most important is the question of where the line is drawn between the public interest and an individual's right to privacy in their private life. As in all such ethical conundrums, there is here a question of balance, and any movement to an extreme position is likely adversely to affect either private rights or public rights.

The Press Council, in dealing with questions of privacy, says that the following need to be taken into account in determining the balance between privacy and the right of the public to be informed:

• Consent and harm (whether there is consent, implied or direct, on the part of individual/s concerned; whether the parties directly involved have complained; and whether harm has been done).
   
• The public interest (whether there is a level of public interest sufficient to justify invasion of privacy).
   
• The extent to which the individual is a public figure and to what level of privacy the individual is entitled as such.
   
• Whether the individual is a child and warrants a greater level of privacy protection.
   
• Whether the personal information being disclosed concerns sensitive matters as defined in the Privacy Act, such as health information, and whether disclosure can be justified.

Privacy developments are already having a major impact on the ability of the press to report freely on matters of public concern and are likely to have a further adverse effect over the next few years. The proliferation of CCTV cameras throughout our cities, the constant mini-cam surveillance of work places and monitoring of the things we do on our office computers have left people with the view that little they do is private any more. This has combined with the constant abuse of people at home by telemarketers and the cross-matching of information on ever more extensive databases to exacerbate the feeling.

While potential intrusion onto the privacy of private individuals by the media is not as pervasive as other forms of privacy invasion, the rare examples of it fuel a perception that the media are contributing to this sense of a loss of privacy.

Current trends

The Council notes a perception that there already an over-emphasis on privacy rights at the expense of the public interest, reflected in irrational reporting restrictions imposed by governments in relation to their own dealings, in the closing of courts, in the denial of information regarding people charged with crimes, and in restrictions on photographers. A new acronym, BOPA, has come into common parlance as agencies restrict the availability of information "because of the Privacy Act". Examples of this are rife. For example, access to files in the Administrative Appeals Tribunals and other similar tribunal hearings are being refused prior to the hearing on grounds of privacy. Access to police mug shots on court files, even of convicted persons, is regularly denied on privacy grounds until after sentencing. (In one particularly egregious case, a newspaper has been refused access by the police to the record of a deceased criminal on the grounds that he had not given his consent to the release.) These trends seem to contradict the recognition of the need for a free flow of information on matters of public interest that formed the basis for the media exemption to the Privacy Act.

Governments and the courts, acting separately, are developing further privacy law, via legislation, a putative tort of privacy and a judicial system that is either unaware of, or uncaring for, the importance of press freedom and transparent justice. The possibility exists that such expansion of privacy rights will not take into account the balance question noted above. The difficulty of leaning heavily towards more privacy protection is that it seems impossible to avoid reinforcement of trends towards more secrecy on matters where public debate is essential for the proper functioning of a liberal democracy.

The High Court (in Lenah Game Meats) has already hinted at the possibility of a tort of "breach of privacy", although it recognised the existence of public interest defences in such cases. A lower court in Queensland has established a de facto tort of privacy in a recent judgement (Grosse v. Purvis) where there was no public interest justification for the defendant's acts. These cases follow similar trends in comparative jurisdictions: an expansion of breach of confidence as an action in the United Kingdom to become a virtual privacy tort, and the development of an actual privacy tort by the New Zealand High Court in the case of Hosking v. Runting in 2004.

State governments have enacted, or are discussing, legislation to govern the use of 'surveillance devices'. Western Australia has the strongest law but the courts have interpreted the definitions of 'public' and 'private' places quite strictly. In other states, proposed definitions are so badly constructed that hearing aids and contact lenses would be classed as 'covert surveillance devices'. NSW and Victoria have developed workplace surveillance laws containing definitions that may be applied in legislation on more general surveillance issues.

The Standing Committee of Attorneys-General, in a recent discussion paper arising from a desire to limit the publication of exploitative images on the Internet, has made proposals that might result in repressive restrictions on taking photos in public places. The ability of photojournalists to record the culture and history of Australia is under threat from such proposals. This follows a British court inventing the crime of "image theft" by a photographer and attempts by sporting and entertainment personalities to 'protect their image' by using the law to restrict the ability of the media to publish photographs, even when taken in public places.

Finding the balance

In the development of any proposals in the area of privacy rights, the Commission needs to place a stress on the public interest as an appropriate criterion to be used to determine the balance between privacy rights for individuals and the public's right to the free flow of information on matters of public concern.

2. The media exemption and Privacy Standards

Historical background

From late 1999, when the then federal Attorney-General foreshadowed changes to federal privacy legislation, which then limited access to personal data held by the public sector, to extend the protection to information on individuals held by the private sector, the Press Council was involved in the development of the proposals, especially as they related to a putative media exemption to the Bill's provisions. The Council was successful in its argument for the inclusion of such an exemption.

In introducing the final revision of the Bill, the Attorney said in Parliament:

The media in Australia have a unique and important role in keeping the Australian public informed. In developing the Bill the government has sought to achieve a balance between the public interest in allowing the free flow of information to the public through the media and the individual's right to privacy. In order to achieve this balance the Bill does not apply to acts and practices of media organisations in the course of journalism.

A range of other provisions in the Bill also recognise the important role of the media in facilitating the free flow of information to the public.

In the light of the likely passage of the Bill through Parliament, the Press Council decided to develop a model code for the print media, based on current press practice and established industry codes.

The Privacy Standards for the Print Media

The exemption exists for media organisations that subscribe to a code of practice on privacy. The Press Council continued to develop such a code, in conjunction with its Constituent Members, and invited media organisations publicly to subscribe to it. The Council discussed the draft code at several meetings and the Council's Executive Secretary met with officers of the Privacy Commission to seek its views on a draft. The Council's Privacy Standards for the Print Media were agreed to in 2001 and are published on the Council's website and in its information booklet. A copy was attached to this submission.

In particular, the Council took note of the possibility that complaints under the Standards may lead to a further invasion of the privacy of those involved if third party complaints were allowed. It therefore determined that, in the case of complaints under the Privacy Standards, only those directly involved could lodge a complaint.

All of the Council Constituent Members subscribed to the standards except for ACP Magazines. This organisation is a unit with Publishing and Broadcasting Limited (PBL), the owner of electronic as well as print media. PBL decided to develop its own standards in order to seek exemption. This is because the Press Council's Privacy Standards are specifically addressed to the print media only. When, in February 2005, APN News and Media Ltd formally subscribed its print publications to the Council's Privacy Standards, all major newspaper publishers had subscribed.

In addition to the Constituent Members, a large number of country newspapers, affiliated only indirectly through Country Press Australia, all major suburban newspapers and a number of magazine publishers not affiliated with the Council as Constituent Members have also publicly subscribed to the Standards. The complete list of subscribing organisations, and the titles represented, is published on the Council's website [http://www.presscouncil.org.au/pcsite/complaints/priv_org.html].

Who can subscribe?

Following inquiries from a number of other organisations about the possibility of subscribing to the Standards, the Council considered the position of, inter alia, schools, churches, hospitals, and telecommunication companies which claimed to engage in 'journalism'. It determined that the Privacy Standards for the Print Media can only be subscribed to by 'media organisations' as the Act allows exemption only for such organisations, and not others who might, incidentally, publish periodicals. The list of subscribing organisations indicates that the Council has been at pains to ensure that only organisations that are principally print publishers can subscribe to the Standards.

Continuing consultations

Each year the Council's Chairman and Executive Secretary conduct regular forums with editors and senior executives of metropolitan, regional, community and country newspapers, and magazine publishers. These forums are both an exchange of information and a chance for the Council to benchmark its performance in the administration of its complaints process. At these forums, privacy and the Privacy Standards for the Print Media have been a major issue for discussion. This ensures that the Council is aware of any concerns with the Standards that may arise from time to time in the industry, and that editors are aware of the Council's requirements in the observation of those Standards.

The Council also conducts each year a series of Case Studies seminars at which journalists, journalism students and members of the public simulate the Council's adjudication process. Complaints about invasion of privacy have perennially been included among those used at these sessions. As the seminars are conducted by members of the Council who report back to it, the Council is continually benchmarking its interpretation of the Privacy Standards against contemporary community standards.

Administration of the Standards

The Council's experience with administering the Standards has been positive. By and large, the print media respect such provisions, as demonstrated by the low number of complaints received each year by the Council on such matters, fewer than 5 per cent of complaints to it are about invasion of privacy. Similarly, the most recently available statistics from the NSW Privacy Commissioner indicate that only 1.6 per cent of complaints received by that office arose from intrusions by the media. Polls and complaints, as well as the Law Reform Commission's recent phone-in, overwhelmingly indicate that the public main concerns with respect to privacy invasions are with unsolicited direct marketing and the proliferation of, and cross-matching on, databases.

The Council Secretariat, which generally administers the complaints procedure, is composed of individuals from a variety of backgrounds but none has a background in journalism. The Executive Secretary and the Office Manager, the staff members primarily responsible for the processing of complaints, are trained mediators and frequently use alternate dispute resolution techniques to arrive at an amicable settlement of complaints. When complaints are referred to the Council for adjudication, the Council includes representatives of the publishers, independent journalists and members of the public. The Council's Public Members, drawn from every state and a variety of backgrounds, provide the Council with a link to the contemporary view of issues in the community.

Complaints under the Privacy Standards

In the year 2001-2002, there were 23 complaints on privacy matters dealt with by the Council. 5 were refused, 4 were settled by mediation or otherwise settled to the complainant's satisfaction; and 4 were adjudicated (No. 1144 upheld a complaint against a general interest magazine; No. 1160 was dismissed; No. 1162 dealt with complaints against two newspapers, one of which was upheld and one dismissed).

In 2002-2003, there were 22 complaints that cited the Privacy Standards. Two were the subject of adjudication (No. 1189 and No. 1192, both complaints were dismissed); in four cases the complainant preferred to take legal action; and the vast majority were settled by mediation or otherwise settled to the complainant's satisfaction.

During the 2003-2004, there were 24 new complaints that cited the Privacy Standards. One was the subject of adjudication (No. 1219 - which was upheld in part but not on the question of privacy invasion); in two cases the complainant preferred to take legal action; three were carried forward and the majority (14) were settled by mediation or otherwise settled to the complainant's satisfaction. Two matters carried forward from the previous year were also successfully mediated.

2004-2005 saw 25 new complaints. One was adjudicated (No. 1277 that dismissed the complaint); in 3 cases the complainant preferred to take legal action; three were carried forward and the majority (12) were settled by mediation or otherwise settled to the complainant's satisfaction. Three matters carried forward from the previous year were also successfully dealt with.

In 2005-2006 there were 23 new complaints. Four were adjudicated (No. 1299 upheld the complaint of an invasion of privacy; No. 1312 upheld the complaint but not on privacy grounds; No. 1316 found that the newspaper had not sufficiently protected the privacy of two young women; and No. 1318, where the complaint of unfair treatment was sustained but the complaint of an invasion of privacy was not); in 3 cases the complainant preferred to take legal action; three were carried forward and the majority (12) were settled by mediation or otherwise settled to the complainant's satisfaction. Three matters carried forward from the previous year were also successfully settled.

The cited adjudications were attached for the commission's information.

Conclusion

The Council's experience with administering the Standards indicates to it that the media exemption in the Privacy Act 1988 is working effectively and that no changes are needed to the media exemption as it currently stands. The overwhelming majority of complaints are settled by conciliation, early in the process, and those settled by adjudication do not demonstrate any egregious abuse of citizens' privacy rights.

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See also
Index of website material on privacy

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Freedom of the Press overview

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