Australian Press Council Submission to the New South Wales Law Reform Commission on its review of NSW privacy legislation.

17 October 2008

The Australian Press Council is grateful for being provided with an opportunity to comment on the NSW Law Reform Commission's recommendations with respect to the regulation of privacy in NSW.

In proposal number three the consultation paper states that "New South Wales legislation should only apply to the handling of personal information by public sector agencies", and that privacy in private sector organizations should be regulated by the Commonwealth Privacy Act, in accordance with the ALRC's recommendation. In this case any reforms to existing NSW legislation will not adversely impact the media.

The Council agrees the LRC's proposal number three and would prefer to see the NSW legislation refer solely to information held by public sector agencies. If the commission were to consider a change to its view on that issue before the publication of any final report, the Council would seek to be heard on the issue.

Uniformity

The report also calls for uniformity of legislation across Australian jurisdictions. It is important that the NSW government clarifies whether it proposes that there be a complete absence of state legislation dealing with private sector privacy issues, thus leaving the regulation of privacy as it pertains to private sector organisations to the Commonwealth alone, or whether it proposes to introduce mirror legislation that reflects amendments in accordance with the ALRC's recommendations. The NSW LRC will be aware that the Press Council has made submissions to the ALRC, the text of which are available on the Council's website (http://www.presscouncil.org.au/pcsite/fop/fop_subs/alrc_priv.html, http://www.presscouncil.org.au/pcsite/fop/fop_subs/priv_issues.html, and http://www.presscouncil.org.au/pcsite/fop/fop_subs/alrc_dp72.html). If the commission were to recommend the introduction of mirror legislation, there would certain aspects of the legislation that would impact upon the press. The Council supports uniformity, but any uniform or mirror legislation proposed in NSW must include a media/journalism exemption, which the ALRC has recommended be continued in the federal Privacy Act, albeit with minor adjustments.

Images

The specific inclusion of photographs and images into the definition of personal information is likely to have unanticipated consequences that may impact significantly on the ability of the media to publish photographs of people. Even if the NSW legislation is confined in its scope to information held by NSW public sector agencies, the right to reproduce images for public consumption may be compromised if, for example, the images were held in photo libraries held by public agencies, such as the State Library.

While images of people may, in certain specific instances, constitute personal information that warrants protection, images of people in general should not be classed as personal. At present the legislation makes no mention of images, neither to exclude nor to specifically include them within the scope of personal information. The Press Council regards this as the best way of dealing with images.

If the legislation were to make specific reference to images as a potential class of personal information, any definition should be extremely narrow, referring to the context in which the images were created, the purpose for which they were created, the degree of intimacy or intrusion into personal privacy that is conveyed in the photograph and the extent to which the images clearly identify the subject individual. To illustrate: a photograph involving nudity or graphic displays of sexual conduct might be regarded as inherently personal and the consent of the individual concerned might be required before it could be used; while an image of a clothed individual in a public place might be regarded as public information. If an image belonging to an individual is provided to a government agency as part of an investigation (e.g. as a result of a search warrant) that might be regarded as personal information, unless there is a public interest justification for its publication. Similarly, if an image is obtained in a manner which constitutes an intrusion into personal privacy (e.g. by the use of a surveillance device) that may constitute personal information, unless there is a public interest justification for its publication (e.g. to expose misconduct by a public official).

Conclusion

The Press Council recognises that the proposals set down in Consultation Paper No. 3 are unlikely to adversely impact upon the media. However, the Council urges the commission to be aware that any proposed legislation may have unintended consequences and to give careful consideration before recommending any definition of personal information that includes images.

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See also
2007 Submission to the NSW Law Reform Commission on its Consultation Paper 1, Invasion of Privacy.

Index of privacy material on the website

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Freedom of the Press overview

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