Expanding the ACMA’s powers

Proposal 15–1 The ACMA should be empowered, where there has been a privacy complaint under a broadcasting code of practice and where the ACMA determines that a broadcaster’s act or conduct is a serious invasion of the complainant’s privacy, to make a declaration that the complainant is entitled to a specified amount of compensation. The ACMA should, in making such a determination, have regard to freedom of expression and the public interest.

Existing powers of the ACMA relating to codes of practice

15.7 The ACMA has regulatory powers over broadcasting (including radio and television) and telecommunications. These powers are granted primarily under the Australian Communication and Media Authority Act 2005 (Cth), the Broadcasting Services Act 1992 (Cth), the Telecommunications Act 1997 (Cth). Regulatory powers in relation to specific privacy issues are also granted to the ACMA under the Spam Act 2003 (Cth) and the Do Not Call Register Act 2009 (Cth).

15.8 The ACMA’s powers are primarily exercised by promoting self-regulation (in which industry members regulate themselves under industry guidelines, codes or standards) and co-regulation (in which industry members develop guidelines, codes or standards that are enforceable under legislation).

15.9 Privacy provisions with public interest exceptions exist in a range of broadcasting industry codes of practice. The privacy provisions of the codes relating to broadcasters are limited to broadcasts of news and current affairs programs.[2]

15.10 If a code is breached, the ACMA may: determine an industry standard;[3] make compliance with the code a condition of the broadcaster’s license;[4] or accept an enforceable undertaking from the broadcaster that the broadcaster will comply with the code.[5] Further consequences—including civil penalties, criminal penalties, and suspension or cancellation of a broadcaster’s license—exist for a breach of a standard,[6] a license condition[7] or an enforceable undertaking.[8]

15.11 Distinct powers exist if a complaint is made against the ABC or SBS. In these cases, the ACMA may recommend that the broadcaster take action to comply with the relevant code, or that the broadcaster take other action including publishing an apology or retraction.[9]

15.12 The ACMA does not have the power to determine that compensation be paid to an individual whose privacy has been seriously invaded by a broadcaster.

An extension of the ACMA’s powers

15.13 The ALRC’s proposal would grant a new power allowing the ACMA to make a declaration that a complainant should be compensated for any loss or damage suffered from a serious invasion of privacy by a broadcaster. This would provide the ACMA with a power similar to that held by the OAIC under the Privacy Act 1988 (Cth).[10] However, the relevant provisions of the Privacy Act do not apply to a media organisation acting in a journalistic capacity if the organisation has publicly committed to observing privacy standards.[11]

15.14 Granting this power to the ACMA would help to address the limitation of the Broadcasting Services Act that an individual is not entitled to compensation or other forms of personal redress when their privacy is invaded in breach of a broadcasting code of conduct. Granting this power would also provide consistency between the powers of the OAIC and the powers of the ACMA in respect of privacy.

15.15 Under this proposal, the ACMA would be empowered to make a declaration for compensation only in cases where an invasion of privacy was serious. This condition would not be met by all invasions of privacy under relevant codes of practice.

15.16 It is important to note that any determination made by the OAIC under s 52(1A) of the Privacy Act must be enforced in the Federal Court or Federal Circuit Court.[12] A similar procedure would be required to enforce a declaration made by the ACMA under the new power proposed by the ALRC.

15.17 Strengthening the ACMA’s powers in respect of serious invasions of privacy would help deter serious invasions of privacy by broadcasters and provide individuals with an alternative to costly litigation.

15.18 Any expansion of the ACMA’s powers would need to take into account the self-regulatory nature of the Broadcasting Services Act. One of the objects of the Act is to ‘[enable] public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services’.[13] The ACMA similarly noted in its submission that:

The relevant legislative framework therefore requires the ACMA to provide industry with the opportunity to develop co and self-regulatory solutions, before other forms of intervention are considered.[14]

15.19 The power to be exercised under this proposal would only be engaged where there has been a failure to comply with a self-regulatory code. The proposed power would be arguably less burdensome on media organisations than alternative mechanisms for increasing privacy protections, such as removing the media exemption to the Privacy Act 1988.

15.20 Some media organisations submitted that any additional privacy protections would impose an excessive regulatory burden on the media and may have a chilling effect on responsible journalism.[15] While the ALRC acknowledges the range of laws affecting media organisations, it should be noted that many of these laws protect privacy only in an incidental and limited way, and that there are significant gaps and deficiencies in the protection of privacy.[16] It should also be reiterated that the proposed extension to the ACMA’s powers would only apply to those complaints which are serious and for which there is no overriding public interest justification.

15.21 There is some evidence that privacy complaints against the media are relatively rare. The ACMA’s 2012–13 Annual Report showed that, while there were a total of 2178 enquiries and written complaints about commercial, national and community television broadcasters, there were only two breach findings relating to privacy by commercial television broadcasters, and only three non-breach findings.[17] Rather than providing evidence that no further privacy protections are needed, the ALRC suggests that the ACMA’s figures indicate that the additional power proposed may be rarely used. However, the proposed power would provide a means of redress and alternative dispute resolution to affected individuals without the high cost for both parties of litigation.