Extract taken from 'The Media and Entertainment Law Review - edition 1'

Overview

The year 2019 has seen the largest suite of law reform processes in Australian media law history, as regulators grapple with the implications of globalisation and convergence of the media and entertainment industries.

The most significant of these is the Australian Competition and Consumer Commission’s (ACCC) Digital Platforms Review, which resulted in the Digital Platforms Review Final Report, published on 26 July 2019 (the ACCC Report). The ACCC Report recommends significant changes to Australia’s privacy laws and an inquiry in relation to the supply of advertising technology services and advertising agencies, codes of conduct to deal with disinformation and to govern the relationship between digital platforms and media organisations, and a variety of competition law, copyright, anti-disinformation, tax and educational measures.

There are also significant reviews and inquiries underway in relation to Australian defamation laws, court reporting and press freedoms.

Each of the reviews is considering, or has considered, Australia’s existing media, communications or security laws. At the moment, in addition to defamation, copyright and other platform-neutral laws, Australia’s media laws include platform-specific laws, with television and radio broadcasters regulated more extensively than other platforms.

Police raids on journalists and a trial relating to security laws (which is being held in closed court) have also caused the public and media to focus on Australia’s whistle-blowing and official secrecy laws. These are the focus of the Parliamentary Joint Committee on intelligence and security. In addition, the Environment and Communications References Committee is considering the adequacy of Commonwealth laws and frameworks covering disclosure, and reporting of sensitive and classified information.

Legal and regulatory framework

i Defamation laws

Australia’s defamation laws, like those of the UK and the US, are largely based on common law principles originally developed in England.

They do not include the serious harm requirement introduced in the UK in 2013, nor do they contain the US public figure defence.

In 2005, largely uniform defamation legislation was enacted in each Australian state and territory (the Uniform Defamation Acts) to harmonise Australian defamation laws. This legislation modifies certain common law principles relating to the question of whether and in what circumstances a cause of action arises, and in relation to damages. It also contains statutory defamation defences that apply in addition to common law defamation defences.

In Australia, it is necessary for a defamation plaintiff to establish:

  1. publication (which may occur by any means of communication);
  2. a defamatory meaning (a meaning that would be likely to cause the ordinary reasonable reader to think less of the plaintiff, or to shun and avoid him or her); and
  3. identification (that some or all readers would understand the relevant communication as relating to the plaintiff).

The Uniform Defamation Acts provide that for-profit companies with 10 or more employees do not have a cause of action for defamation. It also changes the choice of law principle applicable to publication to persons within Australia, such that the applicable law is the law with the closest connection with the harm occasioned by the publication, which is determined by reference to a number of factors.

Once a cause of action is established, the defendant will be liable unless it, he or she can establish a defence. The statutory defences are in addition to their common law counterparts. Key defences include:

  1. common law and statutory qualified privilege defences;
  2. fair protected report defences (which protect fair reports of court, tribunal and parliamentary proceedings);
  3. justification (truth) defences;
  4. contextual truth defence;
  5. an honest opinion defence (which requires that the material for comment is included in or adequately referred to in the matter complained of);
  6. innocent dissemination (of particular relevance to internet content hosts, newsagents and other distributors); and
  7. triviality defence.

In addition, Clause 91 of Schedule 5 of the Broadcasting Services Act 1992 (Cth) provides immunity from state and territory laws and common law and equitable principles to internet service providers and internet content hosts where they are not aware of the nature of the content in question. Clause 91 has not been considered by the courts, and the extent of the protection that it gives such entities is uncertain.

There has been controversy in the past year in relation to certain decisions concerning liability for online publications.

The High Court in Trkulja v. Google LLC rejected findings by the Court of Appeal, which, in effect, applied special tests and considerations to determine whether search engine results were capable of defaming a plaintiff. The Trkulja case also confirms that search engines bear the onus of establishing ‘that the degree of its participation in the publication of the impugned search results was such that it should not be held liable’.

In the case of Voller v. Nationwide News Pty Ltd; Voller v. Fairfax Media Publications Pty Ltd; and Voller v. Australian News Channel Pty Ltd (Voller), media organisations were found to be ‘primary publishers’ of third-party comments made on their Facebook sites, with the consequence that they are liable for those comments as publishers from the time that they are posted regardless of whether they have received any complaint. This decision has been appealed, and media organisations have criticised it.

There is currently a review by the Defamation Working Party of Australia’s defamation laws. That review has the support of Commonwealth, state and territory attorneys general. It is considering issues including whether to introduce a ‘serious harm’ test and what rules should apply in relation to online publications, including whether there should be clear take down requirements.

ii Privacy laws

Privacy in Australia is regulated by a complex web of Commonwealth, state and territory legislation, as well as equitable (confidentiality) and potentially also common law principles.

The principal privacy law in Australia is the Privacy Act 1988 (Cth). This Act contains 13 Australian Privacy Principles that are the primary rules relating to collection, use and disclosure of, and access to, data held by private sector organisations, including media organisations.

Importantly, there is an exemption in the Privacy Act in relation to acts in the course of journalism by media organisations that have publicly committed to standards dealing with privacy in a media context. Most media organisations have made relevant public commitments (eg, to the Press Council Privacy Principles, or, in the case of broadcasters, the relevant code of practice). This is important, as the Australian Privacy Principles would otherwise prevent media organisations from collecting sensitive information without consent, except in very limited circumstances.

The ACCC Report focuses on advertising technology and other privacy practices of digital platforms. It concludes that certain changes should be made to Australian privacy laws, and raises the question of whether they should be more broadly reviewed. The Treasury is receiving submissions in relation to the ACCC Report, and the government will then respond to it.

There is mixed case law in Australia on the question of whether there is a cause of action for invasion of privacy either in the form of a tort or as a species of breach of confidence. In Australian Broadcasting Corporation v. Lenah Game Meats Pty Ltd, the High Court left the question of whether such a cause of action is available open. Since then, lower courts have, in different cases, made conflicting decisions about whether such a cause of action exists and on what basis. In Doe v. Fairfax Media Publications Pty Ltd, Fullerton J considered whether there was a cause of action based on equitable duties of confidence in relation to a victim of sexual assault in relation to an alleged breach of the statutory prohibition on publication of identification of the victims in proceedings in Section 578A of the Crimes Act. Fullerton J found that no such cause of action was available. Ultimately, however, the question of whether there is a breach of privacy cause of action in tort or as a species of breach of confidence will be determined by the High Court (the Australian ultimate court of appeal) or by statute. The ACCC Report recommends that a statutory privacy tort be introduced. The government will respond to that proposal after further submissions have been received and considered. Similar proposals have been made by the Australian Law Reform Commission previously (most recently in 2014) and have not resulted in any change to the law.

iii Additional regulation of broadcasters

Broadcasters are also regulated under the Broadcasting Services Act 1992 (Cth), and are subject to licence conditions, codes and standards developed in accordance with the Act.

Key content rules for television broadcasters are contained in the Commercial Television Code of Practice. The Code contains rules relating to advertising time and placement on television, gambling advertising, programme classification and rules for news reporting requiring accuracy, fairness and respect for privacy. The Code is registered by the Australian Communications and Media Authority (ACMA). Content standards promulgated by the ACMA contain Australian content requirements. There are also children’s television standards.

Radio broadcasters are similarly subject to a similar regulatory scheme, and the Commercial Radio Code of Practice, which is registered with the ACMA, contains key rules relating to content.

iv Additional regulation of the internet

Schedule 7 of the Broadcasting Services Act 1992 enables the ACMA to issue notices to hosting services, live content services and links services in relation to prohibited content (generally content that is refused classification or in breach of classification requirements). Schedule 8 regulates online gambling services.

v Key regulators

The ACMA is the key regulator for broadcasters, internet service providers and in relation to direct marketing by electronic means. It administers legislation, including the Broadcasting Services Act 1992 (Cth), the Spam Act 2003 (Cth) and the Telecommunications Act 1997 (Cth).

The Australian Privacy Commissioner has responsibility for administering the key private sector privacy legislation, the Privacy Act 1988 (Cth).

The ACCC has recently become active in the media law area, as discussed in Section I.

The Australian Press Council is a self-regulatory body that hears complaints in relation to publications by print and online publishers.