Recommendation 14–5 Surveillance legislation should provide a defence for responsible journalism relating to matters of public concern and importance.
14.58 Surveillance will sometimes be necessary and justified when conducted in the course of responsible journalistic activities. The ALRC recommends that surveillance legislation include a defence for responsible journalism, particularly if participant monitoring exceptions are not included in surveillance legislation. Media and journalistic activities offer significant public benefit, and these activities may at times justify the use of surveillance devices without the notice or consent of the individuals placed under surveillance. The removal of participant monitoring exceptions, as recommended above, would restrict the ability of journalists to use surveillance devices in this way.
14.59 For example, a journalist who records a private conversation in which a public figure is expected to reveal evidence of corruption would, absent a participant monitoring exception or other defence, have committed an offence under surveillance legislation. The ALRC considers that this is, generally speaking, an undesirable outcome that could be avoided through the introduction of a defence of responsible journalism.
14.60 At the same time, the ALRC considers that a defence of responsible journalism should be suitably constrained. The defence should not, for example, allow unrestricted freedom to carry out surveillance in circumstances which are not journalistic in nature, where the public interest in a matter is trivial, or where the matter is merely of interest to the public or for the purposes of gossip.
14.61 Consideration should be given to providing distinct responsible journalism defences for the distinct offences of, first, the installation or use of a surveillance device, and second, the communication of information obtained through surveillance. The circumstances that justify communication of information obtained through surveillance may be different from those that justify the installation or use of a surveillance device. A journalist is unlikely to know what information will be obtained under surveillance before the surveillance is completed—for example, a public official may or may not make a comment that suggests corruption during a particular recording.
14.62 A responsible journalism defence to the installation or use of a surveillance device should therefore depend whether it was reasonable for the journalist to believe that the use of the surveillance device was in the public interest, and not on whether the information obtained through surveillance was, in hindsight, information in the public interest. However, considerations of whether the information obtained was in the public interest may be relevant if a responsible journalism defence is to be applied to the use or communication of information obtained through surveillance, rather than the act of surveillance itself.
14.63 The proposed defence of responsible journalism was supported by several stakeholders, although some stakeholders noted that the nature of the defence required further discussion and detail. The Australian Privacy Foundation submitted that ‘care would need to be exercised in defining who was entitled to an exception, as well as precisely limiting the circumstances in which surveillance might be permissible’ and noted ‘the potential for existing and emerging technologies to allow for widespread surveillance as part of ‘fishing expeditions’.
14.64 The ALRC is not recommending specific elements of such a defence, and further consideration would be required before such a defence was drafted. However some possible elements, drawn from other laws, include:
the surveillance should be carried out for the purposes of investigating matters of significant public concern, such as corruption;
the defendant must have reasonably believed that conducting the surveillance was in the public interest;
the surveillance was necessary and appropriate for achieving that public interest, and the public interest could not have been satisfied through other reasonable means; and
the defendant must have been an employee or member of an organisation that had publicly committed to observing standards dealing adequately with the appropriate use of surveillance devices by media and journalists.
14.65 Historically, ‘responsible journalism’ was developed as a defence to defamation in Reynolds v Times Newspapers Ltd. Despite being crafted in the context of defamation, several of the matters listed by Nicholls LJ are relevant in the context of surveillance. For example, the seriousness of the conduct being investigated by a journalist, the likely strength of the individual under surveillance as a source of information, the likely nature of the information obtained, and the urgency of the matter may be relevant considerations.
14.66 The Reynolds defence was considered further in Jameel (Mohammed) v Wall Street Journal Europe Sprl. There, Lord Hoffman observed that
opinions may reasonably differ over which details are needed to convey the general message. The fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence. That would make the publication of articles which are, ex hypothesi, in the public interest, too risky and would discourage investigative reporting.
14.67 The Reynolds defence to defamation was abolished and replaced by s 4 of the Defamation Act 2013 (UK). That section provides:
4 Publication on matter of public interest
(1) It is a defence to an action for defamation for the defendant to show that—
(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and
(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.
(4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.
14.68 Media policies also provide some guidance on where the use of surveillance by media or journalists may be appropriate in the public interest. In its submission to the Issues Paper, the ABC noted clause 5.8 of its editorial policy, which provides guidance on the use of surveillance by ABC journalists:
Secret recording and other types of deception
5.8 Secret recording devices, misrepresentation or other types of deception must not be used to obtain or seek information, audio, pictures or an agreement to participate except where:
a justified in the public interest and the material cannot reasonably be obtained by any other means; or
b consent is obtained from the subject or identities are effectively obscured; or
c the deception is integral to an artistic work and the potential for harm is taken into consideration.
14.69 Clause 5.8(a), in particular, requires that the recording must not only be in the public interest but must be the only reasonable way to obtain the material.
14.70 An alternative to a specific defence of responsible journalism is a defence of public interest. Such a defence would be broader than a responsible journalism defence, and the limits of such a defence would need to be clearly circumscribed.
14.71 Several existing surveillance device laws include exceptions to offences where surveillance is carried out in the public interest. Under the Surveillance Devices Act 1999 (Vic), the offence for communicating information obtained through surveillance does not apply ‘to a communication or publication that is no more than is reasonably necessary … in the public interest’. The Listening and Surveillance Devices Act 1972 (SA) permits the use of a listening device by a party to a private conversation if the use is in public interest, and permits the communication of information obtained through surveillance in the public interest.
14.72 The Surveillance Devices Act 1998 (WA) and the Surveillance Devices Act (NT) each allow for emergency use of surveillance devices in the public interest, and each define ‘public interest’ to include ‘the interests of national security, public safety, the economic well-being of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens’.
14.73 Section 31 of the Surveillance Devices Act 1998 (WA) allows a judge to make an order allowing information obtained through surveillance to be published. Such an order requires that a person make an application for such an order and that ‘the judge is satisfied … that the publication or communication should be made to protect or further the public interest’. However, such applications have met with ‘mixed success’.
14.74 In Channel Seven Perth v ‘S’ (A Company), Channel Seven Perth appealed against a decision dismissing its application for an order under s 31 of the Surveillance Devices Act 1998 (WA). Channel Seven had asked a woman (‘M’) to secretly record a meeting with her manager about her dismissal due to pregnancy, and sought an order allowing broadcast of the recording. The Western Australian Court of Appeal dismissed the appeal, finding that:
there was public interest in the matter, relating to equal opportunity and unfair dismissal;
the circumstances of the recording indicated that the meeting between M and her manager was a private conversation and a private activity;
the manager’s purpose in explaining the reasons for M’s dismissal was to be encouraged, and the possibility of that explanation being recorded would act as a disincentive;
the same public interest issues could have been raised without the use of surveillance, notwithstanding that a recording may ‘more effectively stimulate audience interest in the issues’; and
if the matters relied on by Channel Seven Perth were sufficient to meet the public interest test of s 31, there could be ‘widespread use by the media of covertly obtained private information’, inconsistent with the language and purpose of the Surveillance Devices Act 1998 (WA).
14.75 The decision in Channel Seven Perth v ‘S’ (A Company) recognises that surveillance may not be the only way that a particular public interest goal could be achieved. It may be appropriate for a defence of responsible journalism to apply only where the surveillance was necessary.
14.76 The ALRC considers that a more restricted responsible journalism defence is preferable to a broader public interest defence. Journalists and media groups will typically have standards in place, such as the editorial policy of the ABC referred to above, and compliance with such a standard may be an important limitation of the defence. Furthermore, a broader public interest test may allow for wider use of surveillance, with defendants attempting to justify their use of surveillance devices based on their own subjective views about what is in the public interest.
Office of the Victorian Privacy Commissioner, Submission 108; Guardian News and Media Limited and Guardian Australia, Submission 80.
Australian Privacy Foundation, Submission 110.
See, for example, s 4 of the Defamation Act 2013 (UK), discussed below.
A similar requirement can be found in the media exemption under the Privacy Act: Privacy Act 1988 (Cth) s 7B(4); Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) Rec 42–3.
Reynolds v Times Newspapers Ltd  2 AC 127.
Ibid 205 (Nicholls LJ).
Jameel (Mohammed) v Wall Street Journal Europe Sprl  UKHL 44.
Ibid  (Lord Hoffmann).
Surveillance Devices Act 1999 (Vic) s 11(2)(b).
Listening and Surveillance Devices Act 1972 (SA) s 7(1).
Ibid s 7(3)(c).
Surveillance Devices Act 1998 (WA) ss 5(2)(d), 6(2)(d), part 5; Surveillance Devices Act (NT) ss 11(2)(c), 12(2)(d), 43, 44.
Surveillance Devices Act 1998 (WA) s 24 (definition of ‘public interest’); Surveillance Devices Act (NT) s 41 (definition of ‘public interest’).
David Rolph, Matt Vitins and Judith Bannister, Media Law: Cases, Materials and Commentary (Oxford University Press, 2010) 646.
Channel Seven Perth Pty Ltd v ‘S’ (A Company)  WASCA 122.
Ibid  (McClure JA).