Australian Press Council submission to the Australian Law Reform Commission in response to its Issues Paper 31, Review of Privacy

12 January 2007

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.

Submission

The Australian Press Council congratulates the Australian Law Reform Commission on the scope and detail of its review of privacy and of the Privacy Act. In its submission on the Issues Paper, the Council will deal with two issues only:

• the threshold issue of whether there is a need for a judicial or legislative recognition of a cause of action for breach of privacy and
   
• with respect to the Privacy Act, whether the extant media exemption should be retained and, if it is retained, whether it requires amendment or additional definitions inserted into the Act.

Question 1-2: Cause of action for breach of privacy

The question of where the line is drawn between the public interest in information and individuals' rights to privacy in their private lives is an ethical one, raising the issue of balance, and any movement to an extreme position is likely adversely to impact upon 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.

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. There is also an increasing number of webcams that monitor everything from shipping movements in ports and harbours to snow and surf conditions to street scenes. These developments have 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 perception that personal privacy is disappearing.

With regard to the press, privacy issues, whether through interpretations of the Privacy Act, proposed new legislation in areas such as surveillance devices or the publication of images, or judicial determinations, 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 Council notes a perception that there already is 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. The 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 moving towards the development of further privacy law, through a putative tort of privacy that is legislated or developed through case law. The judicial system seems either unaware of, or uncaring for, the importance of press freedom and how it contributes to a system of transparent justice. The possibility exists that any expansion of individual privacy rights will not take into account the balance question noted above. The difficulty of leaning heavily towards more privacy protection (at the expense of public rights to information) 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 danger exists that any putative cause of action for breach of privacy will be just another weapon in the arsenal of those in society who would seek to deflect public scrutiny of their possible malfeasance or non-feasance.

The High Court (in Lenah Game Meats) recognised the necessity of public interest defences in cases alleging a breach of privacy. In the development of any proposals towards a putative cause of action for preach of privacy, 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.

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Questions 5-10, 11, 12: The media exemption

The Commission, in its research into what the public perceives as the main causes of disquiet about privacy, discovered that media intrusions ranked very low. The Office of the Privacy Commissioner (OPC) reports that 1 per cent of the matters closed as being outside its jurisdiction related to the media exemption to the Act. This means that complaints about media intrusion form a very small part of those received by the OPC. This reflects the experience of the NSW Privacy Commissioner, whose reports indicated that complaints about media intrusions form a very small percentage of complaints about invasions of privacy, and the Australian Press Council, which reports annually on the number of complaints received and notes that complaints alleging invasion of privacy by the press are a minor aspect of those it receives. While potential intrusion into 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 the perception of a loss of privacy noted above.

Should the media exemption be retained

The OPC in its March 2005 report Getting in on the Act concludes, "Given there is no strong evidence that there are major concerns about the way the exemption is operating, removing the exemption would appear to be unnecessary".

In its June 2005 review of the Privacy Act, The real Big Brother, the Senate Legal and Constitutional References Committee makes no recommendation with respect to the media exemption even though it recommends the removal of another exemption, thereby implicitly endorsing the retention of the exemption.

The Council submits in response to Question 5-10 that acts and practices of media organisations in the course of journalism should continue to be exempt from the operation of the Privacy Act. It argues that the current exemption, and the Press Council's administration it for the print media, strikes an appropriate balance between the availability of information to the public and the protection of individual's privacy.

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Scope of the exemption

The principal reason for the inclusion of the media exemption in the Privacy Act was given by the then Attorney-General 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.

Paragraph 5.219

Is the exemption for the media too broad in the context of striking an appropriate balance between the free flow of information to the public and privacy protection? The Press Council has argued, from five years of experience in administering the Privacy Standards for the Print Media that an adequate balance has been struck. What evidence is adduced by critics of the exemption that it is too "broad" or that it requires reconsideration. Is there any evidence against the Council's contention that the exemption is working well and the balance is right?

The OPC in its March 2005 report Getting in on the Act recommends definition of one term currently undefined in the exemption and clarification of another. It makes no other recommendation for reconsideration of the exemption, nor conclude that it is too broad.

In 2000, in looking at the definition, the Council's then Chairman noted:

I appreciate the suggestion that the exemption proposed in the ... Bill is very broad and may possibly embrace bodies that designate themselves as engaging in journalism. However, in balancing freedom of the press against the right of privacy, I reiterate what I said to the Committee: today's small publisher of a community newsletter or Internet website may be tomorrow's global media network. It has always been a proud principle in Australia that anyone can become a publisher in the print media. There have been no licensing or other controls imposed over print, in contrast with the electronic media where scarce resources dictate a different approach. For this reason it is necessary to define media organisation broadly in the Privacy legislation. The Press Council therefore supports the inclusion of the present definitions in the Bill.

Paragraph 5.220

The commission refers to the 1979 recommendation calling for legislation to provide privacy protection against publication without reasonable justification of sensitive private facts relating to an individual, in circumstances where the publication is likely to cause distress, annoyance or embarrassment on an objective view of the position of the individual. While this has not been implemented in legislation, the Council would argue that its own regime has given effect to such standards being applied to the print media. It draws the commission's attention to its Principle 3 (Readers of publications are entitled to have news and comment presented to them ... 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) and to the Privacy Standards for the Print Media. The public interest is used as the criterion for 'reasonable justification'. The Council's adjudications demonstrate how it interprets the principles and standards. In Adjudication No. 916 it ruled that images of a Senator and his wife arguing in their own backyard was an unjustified intrusion into the private life of a public individual. The Council recognises the existence of 'sensitive private facts' and seeks to ensure that publications do not intrude into them. The Council would argue that any such legislation, if implemented, would need to include public interest and public figure tests, as well as adequate definitions of what would constitute "reasonable justification"?

Paragraph 5.221

Concerns about the media's reporting of health information causing harm to individuals have been alluded to. The matter arises from the OPC's March 2005 report Getting in on the Act that refers to submissions from the AMA and the Mental Health Coalition referring to an incident in 1997 when a Sunday newspaper investigated conditions at a centre for the intellectually disabled that was itself the subject of a critical report from the state's Auditor-General. The incident occurred before the current privacy regime was implemented and before the adoption by the Press Council and the press of the Privacy Standards for the Print Media. The Council in dealing with a complaint about the matter (Adjudication No. 932 of July 1997) ruled that the newspaper was justified, in the public interest, in observing and reporting conditions at the centre, but the publication of images of patients at the centre was not justified and invaded their privacy. Are there any recent examples of the media reporting of health information causing harm to individuals?

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Definitions

In response to Question 5-11, the Council would have no difficulty with the inclusion of definitions of terms such 'in the course of journalism', 'news', 'current affairs' and 'documentary' in the Privacy Act but wonders whether adequate definitions can be crafted.

The Council was involved in the development of the definitions in 2000 and understands why the original definition of 'journalism' was regarded as circular with the definition of "media organisation" and omitted. There is no evidence that the Act suffers from this lack of specific definition.

Paragraph 5.222

A definition of the term "journalism" was omitted from the original bill after being included in the draft. The Council concurs with the thinking of the Attorney-General's Department, borne out by experience over the last decade, that the nature of 'journalism' is changing in nature and that the omission of a specific definition of the term removes the need for a constant revision of the definition. The Council draws the commission's attention to its publication, The State of the News Print Media in Australia 2006, which discusses in detail many of these on-going changes.

Paragraph 5.223

The OPC recommended the term "in the course of journalism" be defined and that the term "media organisation" be clarified to ensure the exemption focuses on news and current affairs. But the OPC made no suggestions for how this might be achieved, nor why it might be seen as necessary. Where are the examples of instances where the definition is inadequate or the omission of the definition relevant?

Paragraph 5.224

It has been argued that the lack of definitions for "news" etc make the media exemption available to anyone who publishes material as long as it is committed to observe published privacy standards including any organisation that collects and disseminates personal information over the internet. This is not the Press Council's experience. 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 that 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 organisations subscribing to the Council Privacy Standards indicates that the Council has been at pains to ensure that only organisations that are principally publishers of print media can subscribe to the Standards.

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Adequacy of the self-regulatory model

In response to Question 5-12 The Council submits that, if the media exemption is retained, journalistic acts and practices be regulated as they are now. The licensed media is subject to the regulatory oversight of the Australian Media and Communications Authority. The unlicensed press is subject to the self-regulatory oversight of the Australian Press Council, a body comprising representatives of the publishers, of journalists and of members of the public.

As the Council has no powers to fine or prosecute publications or force them to publish corrections or apologies, it has, on occasion, been branded a 'toothless tiger.' This absence of punitive powers is, in fact, the Council's most beneficial strength. As a self-regulating body, newspapers and magazines have agreed to cooperate with the Council in resolving complaints quickly and at no expense to the complainant. They agree to abide by the Council's rulings and to publish adjudications where appropriate.

Under a compulsory scheme, such cooperation would be unlikely. With a statutory regime 'policing' the press the benefits of self-regulation, its speed, inexpensiveness and efficiency, would disappear. If there were a body that could fine newspapers significant amounts then lawyers and the inevitable delays and prohibitive expenses would be involved.

Self-regulation works because the newspaper and magazine publishing industry is committed to it. Subscribing organisations undertake to publish with appropriate prominence any adjudications issued by the Press Council arising from complaints about their mastheads. The Council is aware from discussions with them that editors are significantly displeased when they have to place adverse adjudications in the valuable editorial space of their publications and that this possibility gives rise to a greater awareness of the privacy issues involved during the editorial decision-making processes on questionable stories.

Paragraph 5.225

Concern has been expressed at the enormous potential for breaches of privacy if media organisations or journalists behaved irresponsibly. Is potential a sufficient reason to impose tighter controls? Is there evidence that the current regime has been ineffective and that there has been irresponsible behaviour?

Paragraph 5.226

It was suggested that it was not appropriate to require independently operating journalists and media organisations to subscribe to a model code developed by the OPC. The OPC recommends in its 2005 report that organisations like the ACMA consult with it when developing Privacy Standards under the media exemption. The Press Council, in developing its Privacy Standards for the Print Media, in conjunction with its Constituent Members, discussed the draft with officers of the OPC to seek its views on the draft code. So the Council met the criterion recommended by the OPC for consultation. The Privacy Standards for the Print Media are based on the National Privacy Principles in the Privacy Act and reflect them, in so far as is possible. The Standards are published on the Council's website and in its information booklet. 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.

Paragraph 5.227

Professor Dennis Pearce argues the current self-regulatory model should remain. The only practical alternative is a government-appointed body. As the Council has argued elsewhere, it would be inappropriate for the government to appoint a body to oversight the print media. It would contradict the basic tenet of press freedom in a liberal democracy: its independence from government so that it can be adequately report and comment on government matters, a principle that the High Court has identified as a significant feature of our democracy.

Paragraph 5.228

The Law Reform Commission of Hong Kong has recommended a co-regulatory approach and the establishment of an independent and self-regulating statutory commission to deal with privacy complaints against the print media. The Council would argue that, in most respects, the current regime in Australia reflects this already, with a statutory independent body oversighting the licensed media and an independent self-regulatory body oversighting the print media. The Council would point out that the print media in the People's Republic of China is licensed, so it hardly affords a proper model for regulation of the press in Australia.

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Criteria for media privacy standards

Paragraph 5.229

The Privacy Act has been criticised for its lack of criteria for, or independent assessment of, the adequacy of media privacy standards. The adequacy of the media privacy standards also has been questioned and it is proposed that the OPC be involved to establishing whether codes are adequate.

This raises the questions of whether the Privacy Standards for the Print Media, administered by the Council, are adequate and whether the OPC should have the final say on the adequacy or suitability of standards adopted by the press. In response to the latter point, the OPC had adequate opportunity to comment on the Standards while they were in draft form and to contribute to their development. The Council took the OPC's silence to be informed consent. Neither Nigel Waters nor any of the other critics have sought to address the Council on the alleged inadequacies in the Standards nor demonstrated that they have failed adequately to address the public's concerns with allegations that the press has dealt improperly with personal information. Mr Waters' critique of the Standards was written before any complaints had been dealt with under those Standards.

Paragraph 5.230

The OPC believes that the Privacy Act could be amended so that the ACMA would be required to consult with the OPC when developing privacy codes and cooperate with the OPC in providing guidance to media organisations. As noted above, the Privacy Standards for the Print Media were developed in consultation with the OPC and the Council, through its website, quarterly newsletter and annual report, as well as its perennial consultations with senior editors, has ensured that the press is well aware of their responsibilities under the media exemption. The list of subscribing organisations, which now includes a large number of print media organsiations not directly (or indirectly) affiliated with the Council, indicates that the press are well aware of their responsibilities.

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Enforcement mechanisms

Paragraph 5.231

Concerns have been raised about the lack of adequate enforcement mechanisms for the media privacy standards. Since the ABA's submission to the OPC, the ACMA has published its guideline booklet Privacy Guidelines for Broadcasters. It seems now to have addressed these concerns. In administering the Privacy Standards for the Print Media, the Council has expressed no similar concerns with the adequacy of any enforcement mechanism.

Paragraph 5.232

Nigel Waters criticised the fact that the only mechanism for ensuring compliance with Privacy Standards for the Print Media is the complaint process. It has been argued that the penalty of an adjudication isn't a deterrent. Publishers have indicated to the Council how they feel about the deterrent value of published adjudications. One has said he would rather pay a $25,000 fine than have to publish the Council's view that his newspaper got it wrong. Mr Waters was wrong to say that the Council has jurisdiction over only members. As noted above, many other organisations have publicly subscribed to the standards and agreed to abide by the 'penalty' of publishing adjudications, even adverse ones. But, then, Mr Waters wrote his article before the current regime was in operation. If publication of adverse findings is not an appropriate deterrent, what other form of penalty might be envisaged, and at what cost to the freedom of communication to which critics pay lip service?

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A final issue: The Inquiry

Finally, the Council makes two points about the structure of the inquiry.

a. The Advisory Committee

The Council notes that the committee includes people with a wide experience in matters related to privacy and the administration of public and private enterprises but notes that there is no-one on the committee whose current expertise is in the area of the media or in the administration of complaints about the behaviour of the press. It might be argued that the advisory committee has, from the background of its members, overwhelmingly an interest in the expansion of privacy regimes, even at the expense of the public interest.

b. Public consultations

The Council notes that the consultations will be on-going and that the commission intends to consult representatives of the media between the issuing of its Discussion Paper and its final report but notes that the commission's public consultations before its Issues paper have been with privacy advocates; academics and lawyers with expertise in privacy; and similar individuals. This raises questions as to whether the commission has consulted adequately widely.

More importantly, the absence of any details of some of these consultations leaves open the question of what was said. For example in paragraph 5.219 the commission reports from such consultations that "Several stakeholders have expressed the view that the media exemption requires reconsideration". It is hard to argue against such assertions when no detail of their views have been given - do they want to amend or abolish the exemption, for example - nor any justification for their position is given.

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See also
Index of website material on privacy
2006 submission to the ALRC on its review of privacy

Return to
Submissions list
Freedom of the Press overview

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