Scope of the journalism exemption

42.26 In the course of this Inquiry, a number of stakeholders have expressed concerns about the scope of the journalism exemption.[33] In particular, stakeholders have suggested that the lack of definition of the term ‘journalism’, together with the wide definition of the term ‘media organisation’, ‘effectively allows anyone to claim the exemption by setting up a “publishing enterprise”’.[34] This raises the question of whether any of the components of the exemption should be defined more comprehensively.

‘Journalism’

42.27 The phrase ‘in the course of journalism’ is not defined in the Privacy Act, nor has it been judicially considered in Australia. Originally, the word ‘journalism’ was defined in the Privacy Amendment (Private Sector) Bill 2000 (Cth) as ‘the collection, preparation and dissemination of news, current affairs, documentaries and other information to the public’, including commentary and opinion on, or analysis of, this kind of material.[35] After the release of the report on the Bill by the House of Representatives Standing Committee on Legal and Constitutional Affairs,[36] the Australian Government amended the Bill to omit the definition of ‘journalism’.[37]

42.28 One commentator has argued that

the everyday meaning of ‘journalism’ would appear to include entertainment, infotainment and educational output of the media. Arguably, important issues of freedom of speech and the public interest role of the media are confined to news and current affairs.[38]

42.29 The OPC Review recommended in 2005 that the term ‘in the course of journalism’ be defined and that the term ‘media organisation’ be clarified in order to ensure that the exemption focuses on news and current affairs.[39] The Australian Government disagreed with this recommendation.[40]

Submissions and consultations

42.30 In DP 72, the ALRC proposed that ‘journalism’ should be defined in the Privacy Act. The ALRC expressed the preliminary view that an appropriate definition would be:

the collection, preparation for dissemination or dissemination of the following material for the purpose of making it available to the public: (a) material having the character of news, current affairs or a documentary; or (b) material consisting of commentary or opinion on, or analysis of, news, current affairs or a documentary.[41]

42.31 This modified the definition of ‘journalism’ that was originally included in the Privacy Amendment (Private Sector) Bill by excluding the word ‘information’ from that definition.

42.32 The majority of stakeholders that commented on this issue supported the proposal to define ‘journalism’ for the purposes of the media exemption.[42] The Cyberspace Law and Policy Centre, for example, commented that:

The proposed definition of ‘journalism’ achieves the objective of limiting the scope of the media exemption to those activities where there is a genuine competing public interest to be balanced against privacy.[43]

42.33 The Department of Broadband Communications and the Digital Economy commented that the ALRC’s proposal was consistent with the approach to regulation of broadcasting services.[44]

42.34 The OPC generally agreed that the Privacy Act should be amended to define ‘journalism’, and supported the ALRC’s proposal to include news, current affairs and documentaries in such definition. The OPC suggested, however, that the ALRC should give further consideration to the approach taken in art 9 of the EU Directive—that is, that there should be an exemption to the Privacy Act where the processing of personal information is ‘necessary to reconcile the right to privacy with the rules governing freedom of expression’.[45]

42.35 A number of stakeholders questioned whether the proposed definition would exclude emerging mediums for conducting journalism, such as blogs.[46] The Australian Library and Information Association, for example, commented that the concept of ‘the media’ is changing rapidly, and suggested that protection might need to be widened to encompass this broad range of mediums.[47] The Right to Know Coalition submitted:

What is regarded as journalism should not be determined solely by reference to the mechanism that is used to deliver it to the public. Regard should be had to the specific nature of what is being reported.[48]

42.36 Some stakeholders also questioned the appropriateness of limiting the subject matter that would be exempted from the Privacy Act. The Australian Subscription Television and Radio Association (ASTRA), for example, submitted that ‘the proposal essentially declares what is important enough to be exempted, rather than letting the circumstances dictate when something is in the course of journalism, and when it is not’.[49] The APC noted that journalism

is something more than just the straight reporting of, and commentary on, matters of economics, politics and social developments. Sports, travel, food and leisure, film, music and books, and popular culture are all as worthy of coverage, in the public interest.[50]

42.37 The Right to Know Coalition also questioned whether advertisements could be excluded from the definition of journalism. It noted that this approach could result in material presented in a news or current affairs story falling within the journalism exemption, but the exemption not applying where the same material is presented in an advertisement for the story.[51] Telstra commented that the Privacy Act is not the appropriate place for redefining journalism and that it cannot be considered in isolation from, for example, defamation law.[52]

42.38 More broadly, the Right to Know Coalition expressed concerns that the media is being caught up in proposals that are intended to address problems with internet material and websites of individuals and non-mainstream media organisations. It suggested that these problems are unrelated to media organisations that commit to complaint mechanisms. It submitted that ‘any reforms designed to address problems occurring in this space must be tailored specifically to avoid impact on the activities of the members of the coalition’.[53]

ALRC’s view

42.39 Including a definition of journalism in the Privacy Act will limit the scope of the exemption to acts and practices that are associated with a clear public interest in freedom of expression. In particular, there is a public interest in disseminating material with the character of news, current affairs and documentaries, and commentaries on these materials. By its very nature, this type of journalism informs, criticises and initiates debate on societal issues of public importance.[54]

42.40 The ALRC acknowledges, however, the potential for information other than ‘news, current affairs and documentaries’, and commentaries on these materials, to contribute to debates of general interest. The ALRC, therefore, recommends an additional limb to the definition of journalism for information where there is a recognisable public interest in disclosure. The appropriate public interest test in this context should be the same as the recommended public interest test for research—that is, where the public interest in disclosure outweighs the public interest in maintaining the level of privacy protection afforded by the model Unified Privacy Principles (UPPs).[55]

42.41 A key component of the ALRC’s recommended definition of ‘journalism’ is its focus on the character of the relevant publication. This means that—provided the underlying nature of the material satisfies one of the limbs of the recommended definition—the manner in which the information is disseminated (for example, whether the information is portrayed satirically) is irrelevant. Similarly, provided the underlying character of the information did not change, the exemption would remain applicable if the material was disseminated through a different medium; for example, in a blog or in the course of an advertisement.

‘Media organisation’

42.42 The exemption for acts and practices in the course of journalism applies only to ‘media organisations’. In the Privacy Act, a ‘media organisation’ is defined as an organisation (which includes an individual)[56] that collects, prepares or disseminates to the public, news, current affairs, information or documentaries; or commentaries and opinions on, or analyses of, such material.[57]

42.43 In DP 72, the ALRC recognised that the public interest in the media exemption applies beyond established media businesses and professional journalists, and proposed that the definition of ‘media organisation’ should remain as it currently stands.

42.44 The Right to Know Coalition supported retaining the definition of ‘media organisation’ in its current form, commenting that the current definition has a proper degree of flexibility to encompass emerging and future activities that properly fall under the umbrella of ‘media’. It submitted:

the definition appropriately recognises that media activities may be undertaken by an array of people or organisations who are exercising significant rights of freedom of communication and speech.[58]

42.45 The APC commented that the proposed definition of journalism was circular with the definition of ‘media organisation’ included in the Privacy Act. It was concerned that this could limit unnecessarily the operation of the exemption.[59]

42.46 The Australian Broadcasting Corporation (ABC) advised that the exemption under s 7B(4) in relation to acts and practices of ‘media organisations’ may not apply to the national broadcasters, as its programming materials do not relate to ‘commercial activities’. If the exemption for agencies pursuant to s 7(1)(c) of the Privacy Act were to be removed,[60] the programming activities of the national broadcasters would be subject to the privacy principles. The ABC also suggested that the definition of ‘media organisation’ in the Act should be extended to include other media publication categories. [61]

ALRC’s view

42.47 The capacity for the journalism exemption to apply to organisations outside the mainstream news media is an important component of freedom of expression. As stated by the Supreme Court of the United States in Associated Press v United States:

[Freedom of the press] rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society … Freedom to publish means freedom for all and not some.[62]

42.48 The journalism exemption should not be limited to established media businesses or professional journalists. Adequate limitations are provided through the other requirements for the exemption; in particular, the recommended definition of journalism[63] and the requirement for the organisation to be publicly committed to media privacy standards.[64]

42.49 In accordance with the ALRC’s broader policy objective of achieving greater consistency, simplicity and clarity in the Privacy Act, the media exemption should apply equally to the national broadcasters and organisations that are engaging in journalism. This can be achieved by amending the definition of ‘media organisation’ to include an agency that has been specified in the regulations. At a minimum, this should include the ABC and the Special Broadcasting Service (SBS).

42.50 The ALRC also agrees that there is unnecessary circularity between the recommended definition of ‘journalism’ and the definition of ‘media organisation’. This can be simplified by abridging the definition to ‘an organisation whose activities consist of or include journalism’. This ensures that, as media publication categories evolve, agencies or organisations that engage in these activities remain covered (where appropriate) by the journalism exemption.

‘News, current affairs and documentaries’

42.51 The definition of ‘media organisation’ and the recommended definition of ‘journalism’ centre on the dissemination of ‘news’, ‘current affairs’ and ‘documentaries’. These terms are not defined in the Privacy Act. Definitions have been provided, however, in other Commonwealth legislation and legislative instruments. The Broadcasting Services Act 1992 (Cth), for example, defines ‘news or current affairs program’ as meaning:

(a) a news bulletin;

(b) a sports news bulletin;

(c) a program (whether presenter-based or not) whose sole or dominant purpose is to provide analysis, commentary or discussion principally designed to inform the general community about social, economic or political issues of current relevance to the general community.[65]

42.52 A ‘documentary program’ is defined in the Broadcasting Services (Australian Content) Standard 2005 (Cth) as ‘a program that is a creative treatment of actuality other than a news, current affairs, sports coverage, magazine, infotainment or light entertainment program’.

42.53 In DP 72, the ALRC proposed that the terms ‘news’, ‘current affairs’ and ‘documentary’ should continue to be interpreted through their ordinary meaning. Only two stakeholders specifically commented on this issue. The Right to Know Coalition supported the ALRC’s view that the terms ‘news’, ‘current affairs’ and ‘documentary’ should be interpreted according to their ordinary meanings and not defined in the Privacy Act. It noted that ‘it is very unlikely that statutory definitions could appropriately capture the ambit of these terms. This would have the undesirable effect of excluding content that is otherwise appropriately included which would undermine the application of the media exemption’.[66] The ABC also supported leaving these words undefined.[67]

42.54 Given the wide import of the terms ‘news’, ‘current affairs’ and ‘documentary’, defining these terms in the Privacy Act would be impracticable. Instead, these terms should continue to be accorded their plain English meaning.

Recommendation 42-1 The Privacy Act should be amended to define ‘journalism’ to mean the collection, preparation for dissemination or dissemination of the following material for the purpose of making it available to the public:

(a) material having the character of news, current affairs or a documentary;

(b) material consisting of commentary or opinion on, or analysis of, news, current affairs or a documentary; or

(c) material in respect of which the public interest in disclosure outweighs the public interest in maintaining the level of privacy protection afforded by the model Unified Privacy Principles.

Recommendation 42-2 The definition of ‘media organisation’ in the Privacy Act should be:

(a) amended to ‘an organisation whose activities consist of or include journalism’; and

(b) expanded to include an agency that has been specified in the regulations. The regulations should specify, at a minimum, the Australian Broadcasting Corporation and the Special Broadcasting Service.

[33] 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; Centre for Law and Genetics, Submission PR 127, 16 January 2007; Institute of Mercantile Agents, Submission PR 101, 15 January 2007; I Turnbull, Submission PR 82, 12 January 2007; Electronic Frontiers Australia Inc, Submission PR 76, 8 January 2007.

[34] 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. See also Office of the Privacy Commissioner, Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988 (2005), 195–199; Parliament of Australia—Senate Legal and Constitutional References Committee, The Real Big Brother: Inquiry into the Privacy Act 1988 (2005), 72–74.

[35] M Neilsen, Privacy Amendment (Private Sector) Bill 2000: Bills Digest No 193 1999–2000 (2000) Parliament of Australia—Parliamentary Library, 13.

[36] Parliament of Australia—House of Representatives Standing Committee on Legal and Constitutional Affairs, Advisory Report on the Privacy Amendment (Private Sector) Bill 2000 (2000).

[37] Supplementary Explanatory Memorandum, Privacy Amendment (Private Sector) Bill 2000 (Cth), [2]–[4].

[38] C Vietri, ‘The Media Exemption under Information Privacy Legislation: In the Public Interest?’ (2003) 8 Media and Arts Law Review 191.

[39] Office of the Privacy Commissioner, Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988 (2005), 198, recs 58, 59.

[40] Australian Government Attorney-General’s Department, Government Response to the Privacy Commissioner’s Report: Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988 (2006), 11.

[41] Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Proposal 38–1.

[42]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; National Legal Aid, Submission PR 521, 21 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.

[43]Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007.

[44]Australian Government Department of Broadband‚ Communications and the Digital Economy, Submission PR 512, 21 December 2007.

[45]Office of the Privacy Commissioner, Submission PR 499, 20 December 2007.

[46]Australian Broadcasting Corporation, Submission PR 571, 18 February 2008; Right to Know Coalition, Submission PR 542, 21 December 2007; Office of the Privacy Commissioner, Submission PR 499, 20 December 2007; Australian Library and Information Association, Submission PR 446, 10 December 2007; Australian Press Council, Submission PR 411, 7 December 2007.

[47]Australian Library and Information Association, Submission PR 446, 10 December 2007.

[48]Right to Know Coalition, Submission PR 542, 21 December 2007.

[49]ASTRA, Submission PR 426, 7 December 2007.

[50]Australian Press Council, Submission PR 411, 7 December 2007.

[51]Right to Know Coalition, Submission PR 542, 21 December 2007.

[52]Telstra Corporation Limited, Submission PR 459, 11 December 2007.

[53]Right to Know Coalition, Submission PR 542, 21 December 2007.

[54] See the decision of the Supreme Court of Sweden in Case B 293–00, discussed in L Bygrave, ‘Balancing Data Protection and Freedom of Expression in the Context of Website Publishing—Recent Swedish Case Law’ (2001) 8 Privacy Law & Policy Reporter 83.

[55] See Ch 65.

[56] An ‘organisation’ is defined, with certain exceptions, to mean an individual, a body corporate, a partnership, any other unincorporated association or a trust: Privacy Act 1988 (Cth) s 6C.

[57] Ibid s 6(1).

[58]Right to Know Coalition, Submission PR 542, 21 December 2007.

[59] Australian Press Council, Submission PR 411, 7 December 2007.

[60] See Rec 36–4.

[61]Australian Broadcasting Corporation, Submission PR 571, 18 February 2008.

[62]Associated Press v US (1945) 326 U.S. 1, [20].

[63] Rec 42–1.

[64] Rec 42–3.

[65]Broadcasting Services Act 1992 (Cth) sch 6 cl 2(1).

[66]Right to Know Coalition, Submission PR 542, 21 December 2007.

[67]Australian Broadcasting Corporation, Submission PR 571, 18 February 2008.