42.3 Under s 7B(4) of the Privacy Act, acts and practices of ‘media organisations’ are exempt from the operation of the Act, provided the acts or practices are undertaken ‘in the course of journalism’ at a time when the organisation is publicly committed to observe standards that deal with privacy. This exemption aims to ensure an appropriate balance between the public interest in freedom of expression and the public interest in adequately safeguarding the handling of personal information.
42.4 Exemptions or exceptions for journalistic materials or news activities are provided in the privacy laws of many other countries. In Canada, for example, the personal information protection principles do not apply to personal information collected, used or disclosed by a private sector organisation for journalistic, artistic or literary purposes. In the United Kingdom, except in relation to data security, the data protection principles do not apply to the processing of personal data for journalistic, artistic or literary purposes where:
(a) the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material,
(b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and
(c) the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes.
42.5 International instruments relating to the privacy of personal information also include express or implied exemptions for journalistic acts and practices. The European Parliament’s Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (EU Directive) states that Member States shall provide for exemptions or derogations from certain provisions of the EU Directive
for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.
42.6 Although the Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (OECD Guidelines) issued by the Organisation for Economic Co-operation and Development do not provide specifically for an exemption or exception relating to journalistic activities or freedom of expression, they recognise that there may be exceptions to the privacy principles, which should be ‘limited to those which are necessary in a democratic society’.
42.7 The right to freedom of expression is guaranteed under numerous international human rights instruments. The International Covenant on Civil and Political Rights (ICCPR), for example, provides that:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
42.8 In Australia, only Victoria and the ACT have enacted bills of rights. In the remaining Australian jurisdictions, there are no formal, legislative guarantees of protection for freedom of expression. Freedom of expression is nevertheless given some limited forms of protection in Australian law—most relevantly, through the High Court’s finding that the Australian Constitution contains an implied freedom of political communication.
42.9 The Office of the Privacy Commissioner (OPC), in its review of the private sector provisions of the Privacy Act (OPC Review), noted that it had received very few inquiries and complaints about media organisations. Privacy-related investigations also comprise a low proportion of investigations conducted by bodies charged with regulation of the media. From July 1996 to June 2006, the Australian Broadcasting Authority (and subsequently the Australian Communications and Media Authority (ACMA)), conducted a total of 82 privacy-related investigations involving commercial television; 23 of which were found to involve breaches.
Submissions and consultations
42.10 In the Discussion Paper, Review of Australian Privacy Law (DP 72), the ALRC expressed the preliminary view that—provided suitable limitations were in place—the Privacy Act should retain an exemption for media organisations. The ALRC suggested, however that, where the relevant elements could be established, acts and practices within the scope of this exemption should be subject to the proposed statutory cause of action for a serious invasion of privacy.
42.11 The importance of retaining an exemption for acts and practices in the course of journalism was put forward strongly by media organisations and their representative bodies in submissions in response to the ALRC’s Issues Paper, Review of Privacy (IP 31) and DP 72. The Right to Know Coalition, for example, commented:
if citizens are to effectively participate in a democracy, form opinion freely and protect their rights and interests, they need access to information either directly, or via the media … the sheer quantity of information makes it impossible for the public to keep itself properly informed in such a sophisticated and complex environment; it relies on the media to act as a conduit and provide information, commentary and opinion.
42.12 The OPC submitted that, given the important role of a free press in a liberal democracy, and in the absence of strong evidence of abuse, it is unnecessary to remove the exemption for media organisations. The OPC suggested, however, that the exemption should be referred to as the ‘journalism exemption’, rather than the ALRC’s suggested ‘media exemption’, as the former better reflects the limited scope of the exemption.
42.13 Some stakeholders submitted that the balance between privacy rights and freedom of expression should be addressed by selective exceptions to some of the privacy principles, rather than by an exemption.
42.14 The Right to Know Coalition did not support the application of the statutory cause of action to acts and practices that fell within the exemption for media organisations. The Arts Law Centre of Australia also advised that it was ‘highly concerned that the ALRC has indicated that the media exemption is not to apply to the proposed statutory cause of action’.
42.15 Freedom of expression is a fundamental human right, as recognised by art 19 of the ICCPR, and an integral element of a democratic society. As the European Court of Human Rights has expressed it:
Freedom of expression constitutes one of the essential freedoms of a democratic society and one of the basic conditions for its progress and for every individual’s self-fulfilment … it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.
42.16 As noted above, although Australia is a signatory to the ICCPR, there has been no implementation of this commitment in domestic law at the federal level through constitutional change or by the enactment a statutory Bill or Charter of Rights. As also noted above, the High Court nevertheless has introduced a measure of formal legal protection for freedom of expression through a series of cases in which it found that free speech must be implied in the fabric of the Constitution, at least to the extent that the proper functioning of a democratic society such as ours requires
the ability of the people of the Commonwealth as a whole to communicate, among themselves, information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf.
42.17 In Lange, the High Court stated that the test for constitutionality of any legislation arguably infringing political communication contained two limbs:
First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfillment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people.
42.18 Ironically, many of the same media organisations now strongly campaigning against any regulation or restriction of freedom of expression also have been among the most fervent opponents editorially of introducing any formal Charter of Rights in Australia. They also are among the most passionate critics of the High Court’s ‘implied free speech’ cases—which are said to exemplify ‘judicial activism’ and the exercise of lawmaking powers more properly the function of Parliament.
42.19 Freedom of expression and the balancing of competing legitimate interests were at the heart of the ALRC’s review of sedition laws. In Fighting Words: A Review of Sedition Laws in Australia, the ALRC noted that, whatever the formal legal protection accorded freedom of expression, there is a strong cultural preference and respect for free speech:
Australians place a very high premium on freedom of expression and on the importance of robust political debate and commentary. The free exchange of ideas—however unpopular or radical—is generally healthier for a society than the suppression and festering of such ideas.
42.20 The principle of freedom of expression is not, however, absolute. All legal systems impose restrictions on certain forms of expression—for instance, where speech is defamatory or obscene, or is intended to incite the commission of a crime. The Privy Council, hearing an appeal from the High Court of Australia in 1936, observed:
Free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law … 
42.21 In deference to the critical importance of freedom of expression—particularly freedom of political communication—in our democratic system of government, the ALRC supports retaining an exemption in the Privacy Act for journalistic acts and practices. The ALRC also agrees with the OPC that, in order to reflect better the limited nature of this exemption, it should be referred to as the ‘journalism exemption’.
42.22 Equally, there is a need to strike an appropriate balance between the public interest in maintaining freedom of expression and the public interest in adequately safeguarding the handling of personal information. In the following sections of this chapter, the ALRC recommends two new limitations to the exemption for acts and practices in the course of journalism, namely that: a definition of ‘journalism’ should be introduced for the purposes of the Privacy Act; and media organisations must be committed to ‘adequate privacy standards’.
42.23 Unfortunately, the self-regulatory mechanisms utilised by the media do not provide the entire answer to the balancing exercise. Unlike the position with, for example, doctors or lawyers, working journalists are not subject to any:
formal educational requirements (basic or continuing) in order to qualify to practise;
accreditation or registration procedures;
binding code of ethics or professional standards (unless they are members of the relevant trade union—the Media, Entertainment and Arts Alliance (MEAA)—which is not a requirement to practice); or
independent disciplinary authority with the power to investigate and impose meaningful sanctions (such as suspension or deregistration) for a serious breach of professional standards.
42.24 As discussed below, media organisations are subject to a range of voluntary industry standards (for example, those developed by the Australian Press Council (APC) for the print media) and regulations made under law (such as those promulgated by ACMA in respect of the broadcast media). Such sanctions for breach as exist provide few, if any, real remedies for individuals whose privacy rights have been seriously affected. With the exception of the broadcast media, nor, arguably, do they provide significant disincentives for further breaches.
42.25 Acts and practices in the course of journalism should remain subject to the recommended statutory cause of action. This is a separate question to an exemption from interferences with privacy under the Privacy Act. The statutory cause of action is discussed in Chapter 74.
 Revised Explanatory Memorandum, Privacy Amendment (Private Sector) Bill 2000 (Cth), 4, . The right to freedom of expression is recognised in the International Covenant on Civil and Political Rights, 16 December 1966,  ATS 23, (entered into force generally on 23 March 1976), art 19(2), (3).
 See, eg, Personal Information Protection and Electronic Documents Act 2000 SC 2000, c 5 (Canada) ss 4(2)(c), 7(1)(c); Data Protection Act 1998 (UK) s 32; Privacy Act 1993 (NZ) s 2(1); Personal Data (Privacy) Ordinance (Hong Kong) s 61.
Personal Information Protection and Electronic Documents Act 2000 SC 2000, c 5 (Canada) ss 4(2)(c), 7(1)(c).
 Data Protection Act 1998 (UK) s 32(1). Under the Data Protection Act 1998 (UK), the seventh data protection principle provides that ‘appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data’: Data Protection Act 1998 (UK) sch 1, principle 7.
 European Parliament, Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, Directive 95/46/EC (1995), art 9. See also European Parliament, Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, Directive 95/46/EC (1995), Recitals 17, 37.
 Organisation for Economic Co-operation and Development, Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (1980).
 Ibid, Guideline 4; Memorandum, .
 See, eg, Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights: United Nations Universal Declaration of Human Rights, GA Res 217A(III), UN Doc A/Res/810 (1948) art 19; International Covenant on Civil and Political Rights, 16 December 1966,  ATS 23, (entered into force generally on 23 March 1976), art 19; Convention for the Protection of Human Rights and Fundamental Freedoms, 10 December 1948, Council of Europe, ETS No 005, (entered into force generally on 3 September 1953), art 10.
International Covenant on Civil and Political Rights, 16 December 1966,  ATS 23, (entered into force generally on 23 March 1976), art 19.
 In a series of cases culminating in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court has held that the Australian Constitution must be read as impliedly protecting political communication.
During the period between 21 December 2001 and 31 January 2005, 1% of all the National Privacy Principles (NPPs) complaints closed by the OPC on the basis that they were outside of its jurisdiction concerned the media exemption: Office of the Privacy Commissioner, Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988 (2005), 328.
Australian Communications and Media Authority, Submission PR 268, 26 March 2007.
Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), [38.65].
Ibid, [38.70]. The statutory cause of action for invasion of privacy is discussed in Ch 74.
 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; Australian Press Council, Submission PR 48, 8 August 2006.
Australian Broadcasting Corporation, Submission PR 571, 18 February 2008; The Herald and Weekly Times Pty Ltd, Submission PR 568, 11 February 2008; Right to Know Coalition, Submission PR 542, 21 December 2007; Australian Press Council, Submission PR 411, 7 December 2007.
 The Right to Know Coalition is comprised of News Limited, Fairfax Media, Free TV Australia, Australian Subscription Television & Radio Association (ASTRA), Commercial Radio Australia, SBS, ABC, Sky News, Australian Associated Press (AAP), APN News and Media, Media Entertainment and Arts Alliance (MEAA) and West Australian Newspapers.
Right to Know Coalition, Submission PR 542, 21 December 2007.
Office of the Privacy Commissioner, Submission PR 499, 20 December 2007.
 I Turnbull, Submission PR 378, 5 December 2007; G Greenleaf, N Waters and L Bygrave—Cyberspace Law and Policy Centre UNSW, Submission PR 183, 9 February 2007. See also Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, ALRC 11 (1979).
Right to Know Coalition, Submission PR 542, 21 December 2007.
Arts Law Centre of Australia, Submission PR 450, 7 December 2007.
Case of Plon (Societe) v France  ECHR 200, .
 Beginning with Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, .
 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 567.
 See, for example, ‘Sold a Bill of Rights’, The Australian (Sydney), 22 December 2005, 11; P Kelly, ‘Freedom Fighters to Face Great Divide’, The Australian (Sydney), 11 April 2001, 13; ‘Rights and Wrongs’, Sydney Morning Herald (Sydney), 11 January 2001, 12.
 Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia, ALRC 104 (2006), Ch 7.
 Ibid, 10.
 James v Commonwealth (1936) 55 CLR 1, 56.
 See also, Ch 74.