42.55 For a media organisation to fall within the journalism exemption, it must be
publicly committed to observe standards that:
(i) deal with privacy in the context of the activities of a media organisation (whether or not the standards also deal with other matters); and
(ii) have been published in writing by the organisation or a person or body representing a class of media organisations.
42.56 The Revised Explanatory Memorandum for the private sector provisions of the Privacy Act notes that this exemption ‘seeks to balance the public interest in providing adequate safeguards for the handling of personal information and the public interest in allowing a free flow of information to the public through the media’. One way a media organisation might demonstrate its public commitment to standards dealing with privacy is to show that it is a member of a media industry body and that membership of that body requires it to subscribe to a code of conduct developed and published by the industry body.
Current framework for media privacy standards
42.57 The majority of media organisations seek to satisfy the requirement of being publicly committed to observe standards that deal with privacy in the following manner:
radio and television industry groups develop codes of practice in accordance with the Broadcasting Services Act;
national broadcasters (the ABC and the SBS) develop codes of practice in accordance with their establishing legislation;
print or online media organisations that are members of the APC are bound by its Privacy Standards; and
journalists that are members of MEAA are bound by its Code of Ethics.
Broadcasting industry groups
42.58 Under the Broadcasting Services Act, each section of the broadcasting industry, in consultation with ACMA, must develop codes of practice. Industry codes that have been approved by ACMA are included on ACMA’s Register of Codes of Practice.
42.59 There is presently no specific requirement for ACMA to consider privacy issues before registering an industry code. Under s 130M of the Broadcasting Services Act, however, ACMA must be satisfied that, to the extent to which the code deals with one or more matters of substantial relevance to the community, it provides appropriate community safeguards for that matter or those matters.
42.60 Privacy provisions are included in the codes of practice developed for the following industry sectors: commercial television; commercial radio; subscription broadcast television; subscription narrowcast television; community television; community radio; and open narrowcast radio.
42.61 These codes differ, however, in relation to the substance of the included privacy provisions. Some, but not all, of the codes of practice provide that certain programs must not use material relating to a person’s personal or private affairs, or which invades a person’s privacy, unless there is a public interest for the materials to be broadcast. Some of the codes of practice provide that licensees should not broadcast the words of an identifiable person unless the person has been informed in advance or his or her consent was obtained before the broadcast. Only two of the codes of practice address specifically the privacy interests of children.
42.62 All of the codes of practice for the broadcast media cover the handling of complaints from the public. Complaints about lack of compliance with a broadcasting code of practice can be made to ACMA where a written complaint has been made to the particular station, and: the station does not answer the complaint within 60 days; or the complainant is dissatisfied with the station’s response. ACMA must investigate such a complaint unless it is satisfied that the complaint is frivolous, vexatious or irrelevant.
42.63 Where ACMA determines that a private sector broadcasting service has breached, or is breaching, a relevant code of practice, it may issue a notice directing a person to take remedial action to ensure compliance. A failure to comply with such a notice is an offence under the Broadcasting Services Act and attracts a penalty. In relation to commercial broadcasting, community broadcasting and subscription television services, a breach of a licensing condition also could lead to suspension or cancellation of the broadcasting licence.
42.64 In 2007, for example, ACMA found that the Southern Cross Television breached the Commercial Television Industry Code of Practice by broadcasting material that invaded the privacy of a mother and her 12 year old child. In response to the breach findings, the licensee undertook to discuss the issues raised by ACMA’s investigation with the relevant staff and to include the investigation in future staff training sessions.
42.65 ACMA has been given new powers under the Communications Legislation Amendment (Enforcement Powers) Act 2006 (Cth) to accept enforceable undertakings in relation to compliance with the Broadcasting Services Act and registered codes of practice. If ACMA considers that a person has breached such an undertaking, it may apply to the Federal Court of Australia for an order directing compliance with the undertaking, the payment of compensation for another person’s loss or damage suffered as a result of the breach, or the payment to ACMA of the amount of any financial benefit the person has obtained that is reasonably attributable to the breach.
42.66 ACMA has developed Privacy Guidelines for Broadcasters, which provide an overview of the way in which ACMA will assess complaints concerning alleged breaches of the privacy provisions. The Guidelines advise that, in considering complaints about intrusions into privacy, ACMA will consider two main questions: did the material relate to a person’s private affairs; and was its broadcast warranted in the public interest. Examples of public interest matters that may justify an intrusion into an individual’s privacy include: criminal matters; public health or safety; consumer affairs or protection; matters of politics, government and public administration; matters relating to the conduct of organisations which impact on the public; and seriously anti-social conduct which causes harm to others.
42.67 The ABC is a statutory corporation and Australia’s only national, non-commercial broadcaster. Its functions include to: provide within Australia broadcasting services of a high standard; transmit broadcasting programs to countries outside Australia; and encourage and promote the musical, dramatic and other performing arts in Australia. The SBS is Australia’s multicultural and multilingual public broadcaster. It was established under the Special Broadcasting Services Act 1991 (Cth) to provide multilingual and multicultural radio and television services.
42.68 The regulatory regime set out in the Broadcasting Services Act 1992 (Cth) for national broadcasting services differs from that for other types of broadcasting services. The ABC and SBS develop their codes of practice through separate consultative processes and are required to inform ACMA about them.
42.69 Privacy provisions are included in the codes of practice for both the ABC and SBS. The ABC Code of Practice, for example, provides that:
The rights to privacy of individuals should be respected in all ABC content. However, in order to provide information which relates to a person’s performance of public duties or about other matters of public interest, intrusions upon privacy may, in some circumstances, be justified.
42.70 The SBS Code of Practice contains a similar provision. In addition, under the SBS Code of Practice, SBS is not to transmit the words of an identifiable person except in certain specified circumstances.
42.71 Both the ABC and the SBS have in place internal complaint-handling processes. If a member of the public is not satisfied with the handling of a complaint by a national broadcaster, he or she can have the complaint reviewed by ACMA. If a complaint is upheld in relation to a national broadcaster, ACMA may recommend, by written notice, that the national broadcaster take action to comply with the relevant code of practice, or take other action as specified in the notice. Such action may include broadcasting or otherwise publishing an apology or retraction. If the recommendation is not followed within 30 days, ACMA may give the responsible minister a written report on the matter, and the minister must table the report in Parliament.
Print or online media organisations
42.72 The APC is a self-regulatory body that deals with the print media. Its stated objectives are to help preserve the freedom of the press within Australia and ensure that the press acts responsibly and ethically.
42.73 The APC has published a set of Privacy Standards for the purposes of the media exemption under the Privacy Act. The Privacy Standards deal with the collection, use and disclosure, quality and security of personal information; anonymity of sources; correction, fairness and balance; and the handling of sensitive information.
42.74 The APC receives and deals with complaints about possible breaches of these Standards, but it will not hear a complaint that is subject to legal action or possible legal action, unless the complainant is willing to sign a waiver of the right to such action. The APC secretariat will try to negotiate the settlement of a complaint, failing which a formal response will be sought from the publisher and sent to the complainant. If the complainant is not satisfied with the response, he or she, with the agreement of the newspaper, can seek a conciliation hearing conducted by the APC, or can immediately refer the matter to the APC for adjudication. If asked to adjudicate, the APC’s Complaints Committee holds a hearing and makes a recommendation to the APC. The APC has no power to penalise or make an order against a publication; it can only distribute the Committee’s findings to the media and publish them in the APC’s newsletters and annual reports.
42.75 The APC is widening its remit to include online news sites that are willing to abide by its principles and privacy standards. The APC anticipates that its Privacy Standards will apply to media organisations that publish on the internet in the same way as they apply to media organisations that publish in print. The APC also is considering adopting a website Code of Conduct that would govern blog-related matters, both for contributors and those responsible for news media websites.
42.76 MEAA is the union and professional organisation for the media, entertainment, sports and arts industries. Journalist members of the MEAA are bound by its Code of Ethics, whichprovides for certain privacy standards, including the requirement that journalists: do not place unnecessary emphasis on personal characteristics such as race, ethnicity and religious beliefs; identify themselves and their employer before obtaining an interview; and respect private grief and personal privacy.
42.77 Where a person believes that a journalist member of the MEAA has breached the Code, he or she may make a formal complaint to the MEAA. If the MEAA finds the complaint proven, it can censure or rebuke the journalist, fine the journalist up to $1,000 for each offence, or expel the journalist from membership of the MEAA. Information about complaints against journalists is published and distributed on an annual basis to journalist members of the MEAA.
Other media organisations
42.78 The journalism exemption is not confined to entities that fall within the mainstream media—it is open to an organisation to develop and administer its own media privacy standards. Presently, there are no requirements for, or guidance on, the criteria that should be included in these standards.
Options for reform
42.79 Concerns have been raised that the present provisions governing media privacy standards may be insufficient to guard against breaches of privacy—or to provide adequate enforcement mechanisms or remedies—if media organisations or journalists behaved irresponsibly. The ALRC has identified a range of options for enhancing the operation of this requirement, which are considered further below. These include:
requiring media privacy standards to deal with privacy in an adequate way;
prescribing standards for the handling of certain categories of personal information—for example, the personal information of children and young people;
requiring media privacy standards to include greater enforcement mechanisms and complaint-handling processes; and
specifying that ‘public commitment’ to observe privacy standards includes the need for active conduct evidencing such commitment.
‘Adequacy’ of media privacy standards
42.80 The terms of the journalism exemption presently are silent on what should be included within the standards developed by media organisations dealing with privacy. Arguably, at least some of the current media privacy standards are lacking in scope and detail. The APC’s Privacy Standards, for example, do not contain an equivalent of NPP 1.3 (ensuring that individuals about whom an organisation has collected personal information are aware of certain matters) or NPP 9 (the ‘Transborder Data Flows’ principle). They also may be more lax in several respects than some of the other NPPs.
42.81 In the OPC Review, the OPC stated that:
It is not clear if this section enables the Commissioner to decide whether or not the standard deals with privacy in an adequate way in the course of establishing whether or not a media organisation is publicly committed to a standard.
42.82 In DP 72, the ALRC proposed that media organisations seeking to rely upon the journalism exemption should be required to be publicly committed to observe standards that deal adequately with privacy in the context of the activities of a media organisation. The ALRC further proposed that the OPC, in consultation with ACMA and peak media representative bodies, should develop and publish guidelines containing the criteria for assessing the adequacy of media privacy standards.
42.83 The proposed scheme would work as follows: where the Privacy Commissioner receives a complaint about an act or practice of a media organisation in the course of journalism, he or she first would assess the adequacy of the privacy standards to which the media organisation was publicly committed. If these standards addressed the criteria included in the OPC’s guidelines they would be determined to be ‘adequate’. The Privacy Commissioner, therefore, would refer the complaint back to the body responsible for oversight of the standards. If the standards did not meet these criteria, however, the journalism exemption would not apply and the Privacy Commissioner would determine the complaint in accordance with the model UPPs.
42.84 Several other Commonwealth laws provide requirements that must be met in an ‘adequate’ manner, including for the: provision of child support; review of administrative decisions; and adoption of benefit fund rules for life insurance. These laws vary, however, in the degree of legislative or other guidance provided on how adequacy should be met. The Administrative Decisions (Judicial Review) Act 1977 (Cth), for example, allows courts to refuse applications for administrative review where adequate provision is made by another law for the applicant to seek a review. Adequacy in this context has been interpreted on its plain English meaning of ‘sufficient’ or ‘suitable’. In comparison, the Life Insurance Act 1995 (Cth) provides that ‘friendly societies’ will have ‘adequately adopted’ benefit fund rules where they: have been adopted in a way set out in prudential rules or standards; and the Australian Prudential Regulatory Authority considers that adoption of the rules in this way adequately takes into account the interests of members.
42.85 Under s 130M of the Broadcasting Services Act, ACMA must register an industry code if it is satisfied that the code meets a number of requirements, including that is provides ‘appropriate community safeguards’ for matters of substantial relevance to the community. ACMA also must be satisfied that, to the extent a code deals with matters that are not of substantial relevance to the community, the code deals with those matters in an appropriate way.
Submissions and consultations
42.86 The clear majority of stakeholders that commented on this issue—with the exception of most media organisations—supported the proposals that the Privacy Act should be amended to provide that the standards must deal adequatelywith privacy in the context of the activities of a media organisation, and that the OPC, in consultation with ACMA and other peak media representative bodies, should issue criteria to assess such adequacy. The OPC, for example, noted that the inclusion of the term ‘adequately’ would clarify that the standards must be ‘robust and of substance’. The OPC suggested that ACMA’s Privacy Guidelines for Broadcasters could usefully inform these criteria. The Department of Broadband, Communications and the Digital Economy advised that the proposed model was consistent with the co-regulatory approach to the regulation of the broadcast media.
42.87 Media organisations, however, expressed a number of concerns about the potential application of this provision. The Right to Know Coalition submitted that the proposed role for the OPC in assessing the adequacy of privacy standards was ‘unnecessary’ as the ongoing review process of the various industry codes of practice contains mechanisms through which the OPC can provide input. In particular, it argued that the proposal would create ‘regulatory uncertainty around the availability of the media exemption that is inappropriate’. In the Coalition’s view, assessing whether the privacy standards of a particular media organisation are adequate necessarily will involve questions of interpretation and debate. Until such debate is resolved, media organisations are left with uncertainty as to the regulatory regime by which they are covered.
42.88 The APC advised that, although there may be sound reasons for expecting that some media organisations should revise their privacy standards, it considers its Privacy Standards for the Print Media to be adequate. It agreed to consult with the OPC to address any changes that might be necessary.
42.89 Some stakeholders suggested modifications to the proposed process for developing and issuing these guidelines. ACMA commented that the criteria for assessing the adequacy of media privacy standards should be developed jointly by ACMA and the OPC. The OPC submitted that, in order to promote regulatory stability, the adequacy criteria should be set out in a legislative instrument made by the Privacy Commissioner and disallowable by Parliament. Several stakeholders suggested that the OPC should publish the criteria as binding rules.
Special categories of personal information
42.90 In the course of this Inquiry, stakeholders raised particular concerns about the manner in which the media handles certain types of personal information, including:
the personal information of children and young people;
personal health information; and
personal information associated with judicial proceedings.
Individuals under the age of 18
42.91 The only set of Australian broadcasting standards or principles that deal specifically with the privacy of children is the Commercial Television Industry Code of Practice. Section 126.96.36.199 states that
licensees must exercise special care before using material relating to a child’s personal or private affairs in the broadcast of a report of a sensitive matter concerning the child. The consent of a parent or guardian should be obtained before naming or visually identifying a child in a report on a criminal matter involving a child or a member of a child’s immediate family, or a report which discloses sensitive information concerning the health and welfare of a child, unless there are exceptional circumstances or an identifiable public interest reason not to do so.
42.92 In consultations with the ALRC, some examples were given of cases where a breach of privacy of a young person had been found, but there were minimal consequences for the media organisations involved. Overall, however, the ALRC received limited comments from stakeholders expressing concern about the treatment of children and young people in the media. A number of young people consulted assumed that, because they sometimes see faces and identities blurred out, privacy protections are in place and working effectively.
42.93 The New South Wales Commission for Children and Young People suggested that the existing media exemption from the Privacy Act does not protect adequately the privacy rights of children and young people, and that there should be a legislative requirement that broadcasters include, within their industry privacy standards, a standard that relates to children and young people specifically. It considered that the standard should require broadcasters to consider the best interests of the child or young person, even where informed consent has been obtained from the child or his or her parent.
42.94 The best interests approach has been adopted in New Zealand. In 1999, in response to concerns over two particular cases, the Broadcasting Standards Authority of New Zealand amended the privacy principles that are imposed on broadcasters to include an additional privacy principle relating especially to children. The current principle reads:
Children’s vulnerability must be a prime concern to broadcasters, even when informed consent has been obtained. Where a broadcast breaches a child’s privacy, broadcasters shall satisfy themselves that the broadcast is in the child’s best interests, regardless of whether consent has been obtained.
For the purpose of these Principles only, a ‘child’ is defined as someone under the age of 16 years. An individual aged 16 years or over can consent to broadcasts that would otherwise breach their privacy.
42.95 In DP 72, the ALRC considered the possibility of requiring media organisations to obtain consent from a person with parental responsibility for the child or young person under a certain age before identifying or otherwise publishing personal information about the child or young person. The ALRC also considered whether additional obligations should be imposed on media organisations to consider the best interests of the child or young person, even where parental consent is obtained. Consistent with its broader approach to the journalism exemption, the ALRC did not suggest that particular obligations be placed on media organisations in relation to children and young people. It was proposed, however, that the OPC should include consideration of the privacy of children and young people in the proposed criteria for assessing the adequacy of media privacy standards for the purposes of the media exemption.
42.96 All submissions that addressed this issue supported the proposal. While giving support, the Law Society of New South Wales urged that the approach to assessing media privacy standards be more comprehensive than what was suggested in DP 72. The Law Society suggested that, to assess the adequacy of media privacy standards, the Privacy Commissioner should obtain wide advice, potentially through establishing an advisory panel.
42.97 SBS raised more general concerns relating to the ALRC’s proposals to set an age under which parental consent would be required before a young person could disclose personal information. SBS was concerned that this would have the undesirable effect of excluding young people under that age from participating in interviews and public discussions.
Where an individual under 18 volunteers information about themselves which could constitute private information, it is SBS’s view that the journalist’s assessment of whether that individual has the capacity to understand the implications of that decision should be paramount.
42.98 The broadcasting of personal health information received widespread public attention in 2007 when Channel 7 allegedly used confidential medical records in a story about illegal drug use by Australian Football League (AFL) players. Channel 7 named the club of two players who had allegedly been referred for treatment for illicit drug use, but not the players themselves, before the Victorian Supreme Court issued an injunction preventing further broadcasting. After being boycotted by AFL players, Channel 7 issued an apology, agreed not to contest the injunction and not to publish or re-publish details from the news report.
42.99 A similar incident occurred in 2006, when The Age newspaper and Nationwide News Pty Ltd received information about the identity of three AFL players who, it was said, had been the subject of positive tests under the AFL Illicit Drugs Policy. The Australian Football League (AFL) successfully brought an action under breach of confidence for a permanent injunction to restrain the newspapers from publishing any material that would identify an AFL player that has tested positive to use of illicit drugs under the policy. 
42.100 The only set of Australian broadcasting standards or principles that deal specifically with the privacy of health information is the APC’s Privacy Standards, which provide that:
Media organisations should not place any gratuitous emphasis on the categories of sensitive personal information listed in Principle 7, except where it is relevant and in the public interest to report and express opinions in these areas.
42.101 The AFL Players’ Association submitted that the criteria issued by the OPC for assessing the adequacy of media privacy standards should ‘include that the standards contain a prohibition against publication of an individual’s personal medical information’. This submission was supported by the Australian Professional Footballers’ Association. The Centre for Law and Genetics, in its submission on IP 31, suggested that the media exemption should be limited to the use of non-sensitive personal information.
Personal information connected with legal proceedings
42.102 Open justice is a fundamental principle of the common law, encompassing access by the media, and the right for the media to report on proceedings. As noted in Chapter 35, however, some legislation recognises that certain proceedings may contain particularly sensitive information and should be subject to restricted media reporting. These include laws restricting the identification of: victims, and persons accused, of sexual assault; parties to, and witnesses in, family law proceedings; children involved in criminal proceedings; and spent convictions.
42.103 At present, the only Australian broadcasting standards or principles that deal specifically with reporting personal information connected to legal proceedings is the APC’s Privacy Standards, which provide:
Unless otherwise restricted by law or court order, open court hearings are matters of public record and can be reported by the press. Such reports need to be fair and balanced. They should not identify relatives or friends of people accused or convicted of crime unless the reference to them is necessary for the full, fair and accurate reporting of the crime or subsequent legal proceedings.
42.104 In submissions to this Inquiry, stakeholders expressed concerns about the reporting of personal information in the context of legal proceedings. Dr Ian Turnbull commented, for example, that although the open court system is an important aspect of Australia’s justice system, ‘excessive media attention where an accused has been acquitted can in many cases be a punishment in its own right or an unjust punishment to those who just happen to be caught up in circumstances’.
42.105 National Legal Aid submitted that it had
specific concerns about reporting details of people involved in legal matters where this involves a breach of law, court orders or is a consequence of a breach of privacy by a law enforcement agency or other body.
42.106 National Legal Aid commented that some form of civil or administrative accountability would be preferable to the penal sanctions that apply to such actions.
42.107 Concerns have been raised about the processes for ensuring compliance with media privacy standards. The APC’s Privacy Standards, for example, only can be enforced through the complaint process of the APC, which only has jurisdiction over members who have voluntarily accepted it. In addition, it has been argued that the sanction imposed by the APC (publication of findings of non-compliance) is not a deterrent. Similarly, the MEAA only has a limited range of remedies and no power to act against or sanction a non-member and there is no membership requirement or other form of certification or registration of journalists.
42.108 In response to some submissions on IP 31 that raised concerns about mechanisms for enforcing media privacy standards, the ALRC suggested that enforcement powers and sanctions for non-compliance with media privacy codes could be addressed by including the adequacy of these powers and sanctions as a consideration for the ‘adequacy’ of these standards.
42.109 PIAC supported including requirements for ‘effective enforcement powers and sanctions’ in the criteria for assessing the adequacy of media privacy standards. The Cyberspace Law and Policy Centre submitted that the standards should include a requirement to submit to an external dispute resolution scheme.
42.110 The APC, however, was ‘strongly of the view that no government body, whether the OPC or any other, should have the power to oversight the Council’s handling of complaints’. It submitted that ‘such review would be contrary to the principle that the press should be independent, and free from government control or intervention’. The APC advised, in relation to its own processes, that:
The Council’s sole punitive power, that of the adjudication printed by the cited publication, is more than adequate. … The ALRC might note the comments of one metropolitan newspaper editor who stated that he would rather pay a fine of $25,000 than have to publish a critical adverse adjudication, issued by his peers telling him that he had breached the ethical principles of journalism. 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 decisionmaking processes on questionable stories.
‘Public commitment’ to media privacy standards
42.111 For a media organisation to fall within the journalism exemption, it must be ‘publicly committed’ to observe media privacy standards. Some stakeholders have raised concerns that the notion of ‘public commitment’ is unclear and that the requirement can be satisfied without any independent assessment.
42.112 In DP 72, the ALRC proposed that the OPC should clarify that, in order for the media exemption to apply, ‘public commitment’ by media organisations to observe privacy standards not only requires express commitment, but also conduct evidencing commitment to observe those standards. A significant number of stakeholders supported this proposal. PIAC, for example, noted that ‘express commitment to observe privacy standards is meaningless if a media organisation engages in conduct that ignores these standards’. The OPC agreed that media organisations should bear the onus of proving that they have taken ‘active and positive steps towards complying with published privacy standards’.
42.113 ACMA submitted that, if the OPC issues guidance to clarify the meaning of the term ‘publicly committed’ in s 7B(4) of the Privacy Act, it should specify that the relevant codes registered under the Broadcasting Services Act meet this requirement. ACMA also submitted that further consideration should be given to what conduct might be required by a media organisation to evidence commitment to the privacy standards—for example, whether a media organisation should be required to provide regular training to staff on the requirements on the standards.
42.114 The Right to Know Coalition did not support the proposal. It submitted that Australia already has in place a ‘comprehensive media privacy framework’ and that the media’s commitment to its published privacy standards is evidenced by the consistently low number of complaints, investigations and breach findings. The Coalition submitted that OPC guidance in this area ‘would risk imposing further regulatory burden on media in circumstances where there is no identifiable public interest reason for doing so’.
‘Adequacy’ of media privacy standards
42.115 In order to qualify for the journalism exemption, organisations should be publicly committed to standards that deal adequately with privacy in the context of the activities of a media organisation. This is an important mechanism to ensure that the standards being relied upon are robust and of substance—while respecting the need for a high degree of media autonomy in order to protect freedom of expression—which is vital for the Australian Parliament’s stated objective of ensuring safeguards for the handling of personal information. A requirement for adequacy also provides the framework through which a range of issues associated with media organisations’ handling of personal information, including categories of personal information that raise particular privacy concerns and compliance mechanisms, can be addressed.
42.116 The ALRC recommends that the journalism exemption set out in s 7B(4) of the Privacy Act should incorporate the plain English meaning of ‘adequate’. Based on the interpretation of the word ‘adequate’ in the context of administrative review, this would require media privacy standards to be ‘sufficient’ or ‘suitable’ for the particular media organisation at issue. For example—to meet the requirement of ‘adequacy’—a media organisation that deals regularly with children and young people may need to include in its standards clear provisions about how the capacity of individuals under the age of 18 will be assessed. For media organisations that only rarely deal with children and young people, however, these provisions may not be necessary.
42.117 In order to promote regulatory certainty, however, clear guidance should be available to media organisations about how the requirement for adequacy will be assessed. The ALRC recommends that the OPC, in consultation with ACMA and other peak media representative bodies, should develop two tools to provide this guidance: guidelines for adequate media privacy standards; and a template privacy standard.
42.118 For the vast majority of media organisations, sufficient guidance can be provided by setting out criteria that should be addressed in their media privacy standards. Providing high-level principles, rather than prescriptively setting out what those standards should be, balances the need for regulatory certainty with the independence associated with the self-regulatory and co-regulatory frameworks. The ALRC agrees with the OPC’s submission that these criteria usefully could be informed by ACMA’s Privacy Standards for the Broadcast Media.
42.119 For media organisations that do not fall under the umbrella of ACMA, the APC or other established media representative bodies, however, translating high-level criteria into standards capable of practical application is potentially onerous. Therefore, the ALRC recommends that the OPC, in consultation with ACMA and peak media representative bodies, also should develop template media privacy standards. This template would be used as a tool to assist (in particular, small, independent) media organisations to meet the requirement of adequate media privacy standards. The ALRC is not recommending that adoption of the template be mandatory, but rather that it provide a model.
42.120 The ALRC does not recommend that privacy codes must be approved specifically by the Privacy Commissioner in order to benefit from the journalism exemption. The ALRC considers, however, that a mechanism could be put in place to ensure that codes registered by ACMA automatically meet the ‘adequacy’ requirement under the Privacy Act. In the context of telecommunications, the ALRC recommends that ACMA only should be able to register a code that deals directly or indirectly with a matter dealt with by the Privacy Act if it has consulted with, and taken into consideration, any comments or suggested amendments of the Privacy Commissioner. A similar process could be undertaken in the broadcasting sector—for example, as a component of ACMA’s assessment of whether an industry code provides appropriate safeguards for matters of substantial relevance for the community.
Special categories of personal information
42.121 Particular concerns have been raised in this Inquiry relating to the reporting of certain types of personal information by media organisations, including: personal information about children and young people; sensitive personal information, including health information; and personal information connected to legal proceedings.
42.122 The ALRC’s recommendations to improve the adequacy of privacy standards that must be adhered to by media organisations provides an effective response to the concerns raised. Given its approach to the media exemption in general, the ALRC is not recommending particular standards that should be met by media organisations in relation to these types of information. The ALRC suggests, however, that, in developing the criteria for adequate media privacy standards and template privacy standards recommended above, the OPC and peak media representative bodies should consider:
issues regarding parental consent when handling the personal information of children and young people; and consider the best interests of the child or young person even where parental consent is obtained;
whether the personal information falls within the definition of ‘sensitive information’ for the purposes of the Privacy Act; and
whether reporting the personal information could result in any unfair prejudice to victims, people accused or convicted of crime, or relatives or friends of such persons.
42.123 Enforcement powers and sanctions are an important consideration to determine whether a particular media privacy standard is ‘adequate’ for the purposes of the journalism exemption. The ALRC does not consider monetary sanctions to be the only, or necessarily the most appropriate, enforcement mechanism. The ALRC acknowledges the APC’s advice that the disincentive of peer disapproval may be just as relevant to the adequacy of enforcement mechanisms as monetary sanctions. Where a media organisation clearly can demonstrate that its enforcement mechanisms promote ‘moral deliberation and reflection’ in such a way that practitioners ‘internalise the moral norms espoused by the profession’, this could be taken into account when assessing the adequacy of the enforcement mechanisms.
‘Publicly committed’ to media privacy standards
42.124 For a media organisation to meet the requirement of being ‘publicly committed’ to media privacy standards, it must both expressly commit to observing the standards and evidence conduct of such observance. This requirement, however, is sufficiently clear in the present wording of the journalism exemption.
Recommendation 42-3 The Privacy Act should be amended to provide that media privacy standards must deal adequately with privacy in the context of the activities of a media organisation (whether or not the standards also deal with other matters).
Recommendation 42-4 The Office of the Privacy Commissioner, in consultation with the Australian Communications and Media Authority and peak media representative bodies, should develop and publish:
(a) criteria for adequate media privacy standards; and
(b) a template for media privacy standards that may be adopted by media organisations.
Reassessing the framework for media regulation?
42.125 As noted above, Australia has in place a self-regulatory model for the print media and a co-regulatory model for the broadcast media. This framework also has been adopted in a number of overseas jurisdictions, including the United Kingdom and New Zealand. In light of changes to the media—in particular, technological convergence—this regulatory model no longer may be suitable.
42.126 In 1997, the Senate Select Committee on Information Technologies was established to evaluate the appropriateness, effectiveness and privacy implications of the self-regulatory framework of the information and communications industries—including the print media, television, radio and telecommunications sectors.The Senate Committee found that there were numerous instances that question the success of self-regulation and co-regulation by the information and communications industries. The Senate Committee recommended that an independent statutory body—the Media Complaints Commission—be established as a single reference point to deal with all complaints against Australia’s information and communications industries. Two other inquiries into the broadcasting media—by the Productivity Commission inquiry into broadcasting services in Australia and by the Australian Broadcasting Authority into commercial radio—also found flaws with the current regulatory models.
42.127 In the course of this Inquiry, a number of stakeholders made submissions relating to the framework for media regulation. Media organisations and their representative bodies submitted that the current regulatory model should remain. It was suggested that the advantages of self-regulation are that: it is inexpensive and efficient; and the newspaper and magazine publishing industry is committed to it and agrees to abide by the APC’s rulings to publish adjudications where appropriate. Media stakeholders submitted that a body appointed by the government to oversee the media is undesirable, as it would interfere with the right to publish freely without fear of government intervention, which is fundamental to a democratic society.
42.128 As noted above, however, the ALRC has ongoing concerns about the capacity of a self-regulatory system to preserve the tenuous balance between the public interest in freedom of expression and the public interest in adequately safeguarding the handling of personal information.
42.129 In Chapter 71, the ALRC recommends that the Australian Government should initiate a review to consider the ongoing effectiveness of the Telecommunications Act 1997 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth). Among other issues, the ALRC is recommending that this review should consider the roles and functions of the various bodies currently involved in the regulation of the telecommunications industry, including ACMA and the OPC. There are a number of similarities between the issues impacting on the telecommunications sector and the broadcast and print media; in particular, the increasing convergence of the technology. It is outside the ALRC’s Terms of Reference to recommend that this review also should cover the regulation of the broadcast and print media. The ALRC notes, however, that the Australian Government could consider the appropriateness of such an extension.
Privacy Act 1988 (Cth) s 7(B)(4).
Revised Explanatory Memorandum, Privacy Amendment (Private Sector) Bill 2000 (Cth), 86.
Broadcasting Services Act 1992 (Cth) s 123.
Commercial Television Industry Code of Practice (2004); Commercial Radio Australia, Codes of Practice & Guidelines (2004); Australian Subscription Television and Radio Association, Codes of Practice 2007—Subscription Broadcast Television (2007); Australian Subscription Television and Radio Association, Codes of Practice 2007—Subscription Narrowcast Television (2007); Community Broadcasting Association of Australia, Community Television Code of Practice; Community Broadcasting Association of Australia, Community Broadcasting Code of Practice (2002); Australian Narrowcast Radio Association, Codes of Practice Open Narrowcast Radio (2007). There are no specific privacy provisions in the codes of practice developed for the open narrowcast television and radio sectors.
Commercial Television Industry Code of Practice (2004), s 4; Commercial Radio Australia, Codes of Practice & Guidelines (2004), Code 2; Australian Subscription Television and Radio Association, Codes of Practice 2007—Subscription Broadcast Television (2007), Code 3; Community Broadcasting Association of Australia, Community Television Code of Practice, Code 3.
Commercial Television Industry Code of Practice (2004), Code 4.3; Commercial Radio Australia, Codes of Practice & Guidelines (2004), Code 6; Community Broadcasting Association of Australia, Community Television Code of Practice, Code 3.5; Australian Subscription Television and Radio Association, Codes of Practice 2007—Subscription Narrowcast Radio (2007) Code 1.5; Community Broadcasting Association of Australia, Community Broadcasting Code of Practice (2002), Code 2.5; Australian Narrowcast Radio Association, Codes of Practice Open Narrowcast Radio (2007), Code 1.5. The SBS Codes of Practice also contains a similar provision: Special Broadcasting Service, Special Broadcasting Service, SBS Codes of Practice (2006), Code 1.8.
Commercial Television Industry Code of Practice (2004), Code 4.3; Community Broadcasting Association of Australia, Community Television Code of Practice, Code 3.5.
Commercial Television Industry Code of Practice (2004), s 7; Commercial Radio Australia, Codes of Practice & Guidelines (2004), Code 5; Australian Subscription Television and Radio Association, Codes of Practice 2007—Subscription Broadcast Television (2007), Code 2; Australian Subscription Television and Radio Association, Codes of Practice 2007—Subscription Narrowcast Television (2007), Code 2; Community Broadcasting Association of Australia, Community Television Code of Practice, Code 2; Community Broadcasting Association of Australia, Community Broadcasting Code of Practice (2002), Code 7; Australian Narrowcast Radio Association, Codes of Practice Open Narrowcast Radio (2007), Code 2.
Broadcasting Services Act 1992 (Cth) ss 148, 150.
Ibid ss 149, 151.
Ibid s 141(6).
Ibid s 142.
Ibid s 143.
Australian Communications and Media Authority, Investigation Report No 1813, 2007/884 (2007). This investigation arose out of a segment of Today Tonight reporting on an alleged mismanagement by the Child Support Agency in relation to the paternity testing of the complainant’s child. The broadcast named the complainant and commented on her sexual past and financial status.
Australian Communications and Media Authority, Privacy Guidelines for Broadcasters (2005), 1.
Australian Broadcasting Corporation Act 1983 (Cth) s 6.
Special Broadcasting Service Act 1991 (Cth) s 6. The ABC and SBS are covered by the Privacy Act except in relation to their program materials and datacasting content. The specific exemption that applies to the ABC and SBS is discussed further in the context of the public sector in Chapter 36. The ALRC is recommending that the national broadcasters should be included within the definition of ‘media organisation’. The journalism exemption therefore would apply to the national broadcasters in the same way as it applies to industry media organisations.
Broadcasting Services Act 1992 (Cth) pt 11 div 2; Australian Broadcasting Corporation Act 1983 (Cth) s 8(1)(e); Special Broadcasting Service Act 1991 (Cth) s 10(1)(j).
Australian Broadcasting Corporation, ABC Code of Practice (2007), [2.8].
Special Broadcasting Service, SBS Codes of Practice (2006), [1.9].
Australian Broadcasting Corporation, ABC Code of Practice (2007), ; Special Broadcasting Service, SBS Codes of Practice (2006), .
Broadcasting Services Act 1992 (Cth) pt 11 div 2.
 Ibid s 152.
 Ibid s 153.
Australian Press Council, About the Council <www.presscouncil.org.au/pcsite/apc.html> at 6 May 2008.
Australian Press Council, Privacy Standards <www.presscouncil.org.au> at 1 May 2008.
Australian Press Council, How to Make a Complaint: An Overview <www.presscouncil.org.au/pcsite/
complain.html> at 6 May 2008.
Australian Press Council, State of the News Print Media in Australia: 2007 Supplement to the 2006 Report (2007), 7.
 Media Entertainment and Arts Alliance, Alliance Online <www.alliance.org.au> at 6 May 2008.
 Media Entertainment and Arts Alliance, Media Alliance Code of Ethics <www.alliance.org.au/code-of-ethics.html> at 6 May 2008, , , .
 Alliance Online, Code of Ethics Breaches: How to Complain <www.alliance.org.au/media/ethics_breach
.htm> at 6 May 2008. This complaints process, however, is not frequently used. The Senate Select Committee on Information Technologies reported that, in 1995–96, the New South Wales Branch of the Australian Journalists Association—the section of MEAA dealing with journalism—received 37 formal complaints, of which 14 proceeded to a hearing by the Judiciary Committee. The 37 complaints included five matters relating to failure to respect private grief and personal privacy. Parliament of Australia—Senate Select Committee on Information Technologies, In the Public Interest: Monitoring Australia’s Media (2000), 44.
 See, eg, Parliament of Australia—House of Representatives Standing Committee on Legal and Constitutional Affairs, Advisory Report on the Privacy Amendment (Private Sector) Bill 2000 (2000), [4.47]–[4.48].
 G Greenleaf, N Waters and L Bygrave—Cyberspace Law and Policy Centre UNSW, Submission PR 183, 9 February 2007.
Office of the Privacy Commissioner, Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988 (2005), 198.
Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Proposal 38–4.
Ibid, Proposals 38–2, 38–3.
Family Law Act 1975 (Cth) s 72.
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 10(2)(b).
Life Insurance Act 1995 (Cth), s 16B(1), (2).
Edelsten v Minister for Health (1994) 58 FCR 419.
Life Insurance Act 1995 (Cth), s 16B(1), (2).
Broadcasting Services Act 1992 (Cth) s 130M.
 Notably, the Herald and Weekly Times supported the proposed changes to the requirements for media privacy standards.
The Herald and Weekly Times Pty Ltd, Submission PR 568, 11 February 2008; Australian Privacy Foundation, Submission PR 553, 2 January 2008; Public Interest Advocacy Centre, Submission PR 548, 26 December 2007; Office of the Privacy Commissioner, Submission PR 499, 20 December 2007; Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007; Privacy NSW, Submission PR 468, 14 December 2007.
The Herald and Weekly Times Pty Ltd, Submission PR 568, 11 February 2008; Australian Bankers’ Association Inc, Submission PR 567, 11 February 2008; Australian Privacy Foundation, Submission PR 553, 2 January 2008; Public Interest Advocacy Centre, Submission PR 548, 26 December 2007; Office of the Privacy Commissioner, Submission PR 499, 20 December 2007; Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007; Privacy NSW, Submission PR 468, 14 December 2007; Australasian Compliance Institute, Submission PR 419, 7 December 2007.
Office of the Privacy Commissioner, Submission PR 499, 20 December 2007.
Australian Government Department of Broadband‚ Communications and the Digital Economy, Submission PR 512, 21 December 2007.
Right to Know Coalition, Submission PR 542, 21 December 2007.
Australian Press Council, Submission PR 411, 7 December 2007.
Australian Communications and Media Authority, Submission PR 522, 21 December 2007.
Office of the Privacy Commissioner, Submission PR 499, 20 December 2007.
Australian Privacy Foundation, Submission PR 553, 2 January 2008; Public Interest Advocacy Centre, Submission PR 548, 26 December 2007; Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007.
 Although the ACMA Privacy Guidelines for Broadcasters (2005) make reference to the Commercial Television Industry Code of Practice and reproduce in appendices relevant sections from that Code relating to children. For the purposes of the Code, a ‘child’ means a person under 16 years: s 188.8.131.52.
 Youth Issues Roundtable, Consultation, Melbourne, 7 February 2007.
 A number of comments were received in relation to the media treatment of children and young people accused of or charged with criminal offences. This issue is dealt with in Ch 69.
Youth Consultation, Consultation PC 228, Sydney, 5 December 2007; Youth Consultation, Consultation PC 225, Sydney, 7 December 2007.
 NSW Commission for Children and Young People, Submission PR 120, 15 January 2007.
 Both cases involved broadcasting of a child and sensitive personal details with parental permission: see M des Tombe, ‘“Get that Camera Out of My Face!” A Look at Children, Privacy and the Broadcasting Standards’ (2000) 31 Victoria University of Wellington Law Review 577; K Ridley, ‘Children and the Broadcasting Media: Respect for the Integrity and Rights of the Child?’ (2000) 15(May) Social Work Now 6.
 T McBride, ‘Recent New Zealand Case Law on Privacy: Part II—The Broadcasting Standards Authority, the Media and Employment’ (2000) 6 Privacy Law & Policy Reporter 133, 137.
 New Zealand Government Broadcasting Standards Authority, Privacy Principles (2006).
Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Proposal 60–8.
Australian Privacy Foundation, Submission PR 553, 2 January 2008; Law Council of Australia, Submission PR 527, 21 December 2007; Office of the Privacy Commissioner, Submission PR 499, 20 December 2007; ACT Government Department of Disability, Housing and Community Services, Submission PR 495, 19 December 2007; Office of the Victorian Privacy Commissioner, Submission PR 493, 19 December 2007; National Children’s and Youth Law Centre, Submission PR 491, 19 December 2007; Privacy NSW, Submission PR 468, 14 December 2007.
Law Society of New South Wales, Submission PR 443, 10 December 2007.
 See Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Proposal 60–1.
Special Broadcasting Service, Submission PR 530, 21 December 2007.
 See, eg, ‘Seven Apologises for AFL Drugs Story’, ABC News (online), 4 September 2007, <www.abc.net.au/news>; K Bice and AAP, ‘Court Extends Injunction on AFL Details’, The Australian (online), 30 August 2007, <www.theaustralian.news.com.au>.
Australian Football League v The Age Company Ltd  15 VR 419. The AFL Illicit Drugs Policy was introduced on 14 February 2005. It applies to the use of illicit drugs—including stimulants, narcotics and cannabinoids—by players and to testing for such drugs out of competition. The primary focus of the policy is the education and rehabilitation of players: see Australian Football League v The Age Company Ltd  15 VR 419, .
Australian Press Council, Privacy Standards <www.presscouncil.org.au> at 1 May 2008, Principle 7. The categories of sensitive information referred to in this principle are race, religion, nationality, colour, country of origin, gender, sexual orientation, marital status, disability, illness or age of an individual or group. Australian Press Council, Statement of Principles <www.presscouncil.org.au/pcsite/complaints
/sop.html> at 11 August 2006, Principle 7.
AFL Players’ Association, Submission PR 393, 7 December 2007.
Australian Professional Footballers’ Association, Submission PR 430, 10 December 2007.
Centre for Law and Genetics, Submission PR 127, 16 January 2007.
 See, eg, John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465.
 See: Regina v Denbigh Justices, Ex Parte Williams  QB 759, 765.
 See, eg, Crimes Act 1900 (NSW) s 578A; Judicial Proceedings Act 1958 (Vic) s 4(1A), (1B); Criminal Law (Sexual Offences) Act 1978 (Qld) ss 6, 7, 8; Evidence Act 1906 (WA) s 36C; Evidence Act 1929 (SA) s 71A; Evidence Act 2001 (Tas) s 194K; Evidence (Miscellaneous Provisions) Act 1991 (ACT); Sexual Offences (Evidence and Procedure) Act 1983 (NT) ss 6, 7.
 See, eg, Family Law Act 1975 (Cth) s 121.
 See, eg, Children (Criminal Proceedings) Act 1987 (NSW) s 11; Crimes (Family Violence) Act 1987 (Vic) s 24; Juvenile Justice Act 1992 (Qld) ss 234, 301; Young Offenders Act 1993 (SA); Youth Justice Act 2007 (NT) ss 43, 50.
 See, for example: Crimes Act 1914 (Cth) Part VIIC; Criminal Records Act 1991 (NSW); Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld); Criminal Records (Spent Convictions) Act (NT).
Australian Press Council, Privacy Standards <www.presscouncil.org.au> at 1 May 2008, Principle 7.
 See National Legal Aid, Submission PR 521, 21 December 2007; I Turnbull, Submission PR 378, 5 December 2007; I Turnbull, Submission PR 82, 12 January 2007.
I Turnbull, Submission PR 378, 5 December 2007.
National Legal Aid, Submission PR 521, 21 December 2007.
N Waters, ‘Can the Media and Privacy Ever Get On?’ (2002) 9 Privacy Law & Policy Reporter 149.
G Greenleaf, N Waters and L Bygrave—Cyberspace Law and Policy Centre UNSW, Submission PR 183, 9 February 2007; New South Wales Council for Civil Liberties Inc, Submission PR 156, 31 January 2007.
Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), [38.113].
Public Interest Advocacy Centre, Submission PR 548, 26 December 2007.
Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007.
Australian Press Council, Submission PR 411, 7 December 2007.
Centre for Law and Genetics, Submission PR 127, 16 January 2007.
G Greenleaf, N Waters and L Bygrave—Cyberspace Law and Policy Centre UNSW, Submission PR 183, 9 February 2007; Australian Privacy Foundation, Submission PR 167, 2 February 2007.
Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Proposal 38–5.
Australian Bankers’ Association Inc, Submission PR 567, 11 February 2008; Australian Privacy Foundation, Submission PR 553, 2 January 2008; Public Interest Advocacy Centre, Submission PR 548, 26 December 2007; Office of the Privacy Commissioner, Submission PR 499, 20 December 2007; Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007; Privacy NSW, Submission PR 468, 14 December 2007.
Public Interest Advocacy Centre, Submission PR 548, 26 December 2007.
Office of the Privacy Commissioner, Submission PR 499, 20 December 2007.
Australian Communications and Media Authority, Submission PR 522, 21 December 2007.
Right to Know Coalition, Submission PR 542, 21 December 2007.
 Rec 71–18.
Broadcasting Services Act 1992 (Cth) ss 130M(1)(d).
I Freckleton, ‘Enforcement of Ethics’ in M Coady and S Bloch (eds), Codes of Ethics and the Professions (1996) 130.
 In the United Kingdom, the print media are self-regulated and overseen by the Press Complaints Commission. The Press Complaints Commission is an industry body that deals with complaints from members of the public about the editorial content of newspapers and magazines. In relation to the broadcasting media, the Office of Communications was established under the Office of Communications Act 2002 (UK) as the regulator for the United Kingdom communications industries. It applies a single Broadcasting Code across the broadcasting industry. The Office of Communications is charged with handling and adjudicating privacy complaints under s 326 of the Communications Act 2003 (UK).
 The print media in New Zealand is overseen by the New Zealand Press Council, a private body established in 1972 by newspaper publishers and journalists to provide an independent forum for the resolution of public complaints. The broadcast media are subject to higher regulatory standards, pursuant to a co-regulatory model under the Broadcasting Act 1989 (NZ). The Act establishes the Broadcasting Standards Authority as a supervisory body whose functions include: receiving and determining complaints; encouraging the development and observance by broadcasters of codes of practice in relation to individual privacy; approving codes; and developing and issuing codes itself where the Authority considers that it is appropriate to do so: Broadcasting Act 1989 (NZ) ss 20, 21(a), (e)(viii), (f), (g).
 Parliament of Australia—Senate Select Committee on Information Technologies, In the Public Interest: Monitoring Australia’s Media (2000).
 Ibid, recs 1–4.
 Right to Know Coalition, Submission PR 542, 21 December 2007; Free TV Australia, Submission PR 149, 29 January 2007; SBS, Submission PR 112, 15 January 2007; Australian Broadcasting Corporation, Submission PR 94, 15 January 2007; Australian Press Council, Submission PR 83, 12 January 2007.
 Free TV Australia, Submission PR 149, 29 January 2007; Australian Press Council, Submission PR 83, 12 January 2007.
 Australian Press Council, Submission PR 83, 12 January 2007.
 SBS, Submission PR 112, 15 January 2007; Australian Broadcasting Corporation, Submission PR 94, 15 January 2007; Australian Press Council, Submission PR 83, 12 January 2007.
 Australian Broadcasting Corporation, Submission PR 94, 15 January 2007; Australian Press Council, Submission PR 83, 12 January 2007.
 Rec 71–2.