The Australian Government’s media regulation reform package, introduced into the Federal Parliament on 14 March 2013, has given a prominence to privacy law and Australian news and current affairs journalism which is unusual, unexpected and unprecedented.
One aspect of the Government’s response was particularly unexpected. The Federal Attorney General in September 2011 released an issues paper A Commonwealth statutory cause of action for serious invasion of privacy and called for submissions as to whether Australian should have a cause of action for serious invasion of privacy. Over 60 submissions were received. That review process has now been shelved without any Government substantive response to those submissions. The issue of whether Australia should have a new privacy cause of action has now been referred back to the Australian Law Reform Commission (ALRC). The ALRC had already considered whether there should be a privacy cause of action and reported on it at length in Chapter 74 of the ALRC’s 2008 Report For Your Information: Australian Privacy Law and Practice (ALRC Report 108): this Report is what kicked off the privacy reform process. It will be interesting to see now whether the ALRC comes to different conclusions following developments in judge-made law in other comparable jurisdictions (in particular, Canada and New Zealand) and criticisms of the ALRC’s formulation of the proposed cause of action that were made in submissions to the Attorney General’s review process.
It is the other aspect of the Government’s intervention that is both unusual and unprecedented: specifically, the linkage of the broad scheme of regulation of print media to privacy law.
Journalism by individual media organisations in Australia has always enjoyed an exemption from the operation of the Privacy Act 1988 where those media organisations are publicly committed to observing standards that deal with privacy (section 7B of the Act). Media organisations have been permitted to either adhere to their own written standards or to adhere to standards set by a body representing a class of media organisations.Traditional print media (newspapers and magazines) has in recent years self-regulated as to privacy through the Statement of Privacy Principles and General Principle 4: Respect for Privacy and Sensibilities of the General Statement of Principles published by the Australian Press Council (APC) and administered through the complaints and adjudication processes of the Australian Press Council. Print media self-regulation administered by the APC covers many things unrelated to privacy, such as truth, balance, impartiality and fairness, corrections of inaccuracies, honest and fair investigation and preservation of confidences.
Traditional electronic media (free to air television and pay television) have self-regulated through Codes of Practice developed by the industry and as reviewed, registered and overseen by the Australian Communications and Media Authority (ACMA). The ACMA has also determined its own Privacy Guidelines for Broadcasters which the ACMA applies in administering complaints as to any non-compliance by broadcasters with these Codes of Practice. ACMA’s powers of enforcement of these Codes are significant. The Codes and Guidelines together constitute what is now quite a prescriptive scheme of regulation of privacy in traditional electronic media, including a regulatory concept of serious invasion of personal privacy that is applied by the ACMA in determining complaints about privacy excesses in television news and current affairs reporting.
New media – blogs, online newspapers and other internet media outlets – is not so self-regulated. New media accordingly is potentially subject to the full operation of the Privacy Act 1988, except to the extent that particular new media outlets that are media organisations engaged in journalism publicly commit to observing journalistic standards that deal with privacy. Some new media outlets have published statements and complaints procedures that could be regarded as so complying. In 2012 probably the best known new media journalism outlet, Crikey, elected to join the APC.
Where a complaint about content of a newspaper or a magazine within the coverage of the APC cannot be resolved without formal adjudication of the complaint by the APC, the publisher is required to publish the Council’s adjudication in the newspaper or a magazine, promptly and with due prominence. The Council cannot require a correction or apology to be published: in the event that the matter is not resolved and proceeds to final adjudication, the Council may only require publication of the Council’s adjudication promptly and with due prominence.
The APC currently receives more than 450 complaints each year. About 75% of initiated complaints which are fully pursued by the complainant result in agreement for a correction, apology or some other agreed form of action.
The limited powers and sanctions of the Australian Press Council have proven to be controversial in recent years. These powers and sanctions were the subject of well publicised recommendations for reform made by both the Independent Inquiry into the Print Media chaired by The Hon. Ray Finkelstein QC and commonly referred to as the Finkelstein Inquiry, and the Convergence Review Committee. These bodies reported early in 2012. The media reform package now introduced into the Federal Parliament is the Australian Government’s first public response to the recommendations of those review bodies. In the meantime, one prominent media proprietor, the owner of The West Australian, elected to disagree with interventions by the APC and struck out alone to set up its own Council, the Independent Media Council.
Criticisms of traditional print media self-regulation to date have generally not focussed upon allegations of breaches of privacy. For example, the ALRC’s 2008 Report had already considered the journalism exemption from the Privacy Act and concluded that there should be an “adequacy” criterion added to the qualified exemption. As stated by the ALRC, “[e]nforcement powers and sanctions are an important consideration to determine whether a particular media privacy standard is ‘adequate’ for the purposes of the journalism exemption.” However, there did not appear to have been a substantial unmet need for more vigorous privacy enforcement in Australian print media. Of complaints made about the Australian print media to the APC, complaints about invasion of personal privacy have (for so long as statistics have been made available by the APC) constituted a remarkably small percentage. For example, In 2010-2011 (the most recent year for which statistics are available), of a total of 566 complaints to the APC, only 30 complaints related to intrusion of privacy. Of the 85 complaints in that year to the APC that were not resolved and proceeded to adjudication, only 3 related to intrusion on privacy.
So the privacy focus of provisions of the News Media (Self-Regulation) Bill 2013 is intriguing. What is that privacy focus? The Bill operates as follows:
- The News Media (Self-regulation) Bill 2013 and the News Media (Self-regulation) (Consequential Amendments) Bill 2013 are directed at print media and associated online services rather than the television industry and associated online services. The Bills if enacted would affect ‘news media organisations’, defined by reference to ‘news or current affairs activities’, but expressly exempting (1) activities relating to material disseminated by a licensed broadcasting service, and (2) activities relating to material disseminated by an online service that is associated with a licensed broadcasting service.
- The legislative package would not affect regulation of the television industry through Codes of Practice and associated regulation under the Broadcasting Services Act as administered by the ACMA. The ACMA would continue to regulate broadcasting activities and enforce industry Codes through use of the ACMA’s existing suite of powers and sanctions. The ACMA’s powers of enforcement of these Codes are significant and would remain unchanged. As already noted, the ACMA has determined its own Privacy Guidelines for Broadcasters which the ACMA applies in administering complaints as to any non-compliance by broadcasters with privacy-related provisions of these Codes.
- The Bills would have the effect that a specified ‘news media organisation’ would only continue to qualify for the ‘journalism’ exemption from the Privacy Act if the organisation was a member of a declared ‘news media self-regulation body’ and has not had its rights as a member suspended.
- The new Public Interest Media Advocate (the PIMA) as appointed by the Government under the associated Public Interest Media Advocate Bill 2013 would have the power to declare a ‘news media self-regulation body’. That power requires the PIMA to consider various matters specified in clause 7(3) of the Bill, which include the extent to which the body’s news media self-regulation scheme provides for remedial action to be taken by the body corporate, including the power to give remedial directions (including a direction to publish an apology or a correction) to a news media organisation. This is an entirely new requirement: the APC does not have such powers today.
- The PIMA would also have the power to revoke any declaration of a news media self-regulation body. The Government states that contemplates that this power of revocation could be exercisable if a news media self-regulation body failed to suspend an organisation for failure to comply with the news media self-regulation body’s rules and determinations. The effect of any such revocation would be to leave relevant organisations that were no longer covered by a declared news media self-regulation body (whether because they were suspended by the news media self-regulation body for infraction of its rules, which infraction might be related to any matter covered by the rules, or because the PIMA revoked the declaration of the media self-regulation body) subject to the operation of the Privacy Act.
Could a media organisation engage in journalism without availability of the journalism exemption? Probably not: availability of this exemption is critical to news gathering and current affairs. Investigative journalism would be severely hampered, if not made impossible, if a number of the National Privacy Principles (NPPs) applied to a media organisation. These include:
- A right for a person to access personal information held by an organisation about the person and to correct inaccuracies (NPP 6).
- A requirement for an organisation that collects personal information about an individual from someone other than the individual to take reasonable steps to ensure that the individual is aware of this, either at the time of collection or as soon as is practicable after collection, and also made aware of (among other things) the fact that he or she is able to gain access to the information, the purposes for which the information is collected, and other organisations to whom this information may be disclosed (NPP 1.3 and 1.5).
- Restrictions as to trans-border data flows of personal information (NPP 9) could significantly hamper syndication and other news sharing arrangements.
- Requirements as to data quality (ensuring that personal information retained is accurate, complete and up-to-date) (NPP 3) and limits as to the period of retention of personal information beyond the period for which it was reasonably necessary to retain it for the purpose for which it was collected could significantly hamper retention of backgrounders in newsroom libraries.
In addition, media organisations would become subject to the jurisdiction of the Australian Privacy Commissioner in relation to findings that an act or practice was an interference with the privacy of an individual. Among new penalties and sanctions which will come into effect (under already enacted laws) from March 2014, the Australian Privacy Commissioner may require a party to give enforceable undertakings and may make remedial orders in respect of a party.
So is the Australian Government’s media regulation reform package an unprecedented and fundamental attack upon the freedom of the media in Australia, as some media outlets have claimed? It is certainly true that freedom of speech in Australia rests on narrow foundations, in the absence of a constitutional basis for freedom of speech outside the judge-made law around the implied constitutional guarantee of freedom of political communication and the indirect protection of human rights through Australia’s accession to the International Covenant on Civil and Political Rights. But regardless of freedom of speech concerns, the unusual and unprecedented aspect of the media regulation reform package is the linkage of the entire scheme of print media regulation to the journalism exemption from privacy law. As already noted, current standards and most complaints addresses things unrelated to privacy, such as truth, balance, impartiality and fairness, corrections of inaccuracies, honest and fair investigation and preservation of confidences. On statistics to date, over 90% of complaints that might lead to unremedied infractions of standards might be expected to be completely unrelated to privacy. So is the linkage of the general scheme of media regulation to privacy law proportionate and reasonable?
In this context, the current vociferous debate in the print media about the Australian Government’s media regulation reform package is not unexpected. What is unexpected is that the former backwater of media privacy law should be thrust into national prominence in this way.