1
Australian Broadcasting Corporation submission to
Department of the Prime Minister and Cabinet
Issues Paper on a Commonwealth Statutory
Cause of Action for Serious Invasion of Privacy
November 2011
1
ABC submission to the Department of the Prime Minister and Cabinet on its Issues Paper on a Commonwealth Statutory Cause of Action for Serious Invasion of Privacy
November 2011
Introduction
The ABC welcomes the opportunity to contribute to the Department’s Issues Paper into the possible introduction in Australia of a statutory cause of action for serious invasion of privacy.
The Corporation recognises that a debate about change of the law in relation to privacy is not only—or even mainly—a debate about privacy and media behaviour. Experience shows that in Australia only a very small proportion of complaints to media regulators and self regula- tors relate to privacy intrusion (see Attachment). The ABC does not anticipate that the type of journalism it practises will be impeded by a change to the law, subject to how that change is drafted and administered. This submission flags key issues for attention, if the Government decides to proceed.
Grappling with how privacy is to be protected under law in democratic societies is an un- avoidable accompaniment to the tremendous capabilities that advanced technology is bring- ing. These capabilities are not just in information and communications activities. They include advances in genetics, in surveillance, and in geospatial activities. The unprecedented capacity of humans to collect data, store it, search it, sift it, reconfigure it, map it, disseminate it and draw inferences from it means that we must pay attention to privacy risks. Most people are now equipped with networked devices which give them the power to disseminate text, sound and images widely and instantly—in many cases irretrievably. This is a capability we used to associate only with large media entities.
The ABC Managing Director, Mark Scott, anticipated the current debate in a speech to a Right to Know Coalition conference on 24 March 2009 in the following way:
…With digital surveillance, location tracking and genetic tracing becoming common- place, there is a very firm case for the law to allow people to protect their privacy. It is a fundamental human right.
In some ways, a tort would just synthesise and rename elements present in several
2 other longstanding doctrines of common law and equity, such as breach of confidence.
The Australian Law Reform Commission proposal for a new statutory right of privacy, properly worded, is a sophisticated idea worthy of serious debate. To dismiss even the need to address the issue—the need to have a thoughtful and comprehensive debate—
doesn’t seem to be in keeping with the openness and plurality of perspectives that me- dia freedom should be all about.
These are complex matters. There are interests at stake here that are all fundamental to a functioning, robust and mature democracy. And at times we will be confronted by circumstances where these principles seem to be in conflict. As media organisations, we want to be actively engaged in the debate and dialogue—working out how the principle of the public’s right to know can be secured in an environment where we keep our citi- zens safe, where privacy is protected, where our courts function fairly and the rights of individuals are held sacred.
Privacy has always been among the recognised fundamental human rights. It is in all the lead- ing international instruments, the quiet sibling of better known rights like freedom of expres- sion, reputation, fair trial, freedom of association and free and fair elections. No single one of these great and hard-won rights trumps the others. In practice, they can mutually reinforce one another. None of them is absolute. In particular circumstances privacy may come into ten- sion with, say, freedom of expression or open justice. These values then have to be balanced.
Compromises are made. Any limitation of one right to protect others, in the particular circum- stances, must be necessary and proportionate.
There is nothing radical about any of this. Threads of the law—trespass, breach of confi- dence, defamation and copyright—have for centuries evolved partly in response to the deeply felt human desire for privacy. Recognition of privacy and of the need to balance it with free- dom of expression is apparent in the codes and guidelines of leading media organisations around the world.
It is against that background that the introduction of a statutory cause of action for serious invasion of privacy is being considered. If the government determines that such an action should be enacted in Australia—and the ABC expresses no view about whether it should—
then it is essential that such an action be crafted in a manner that does not unduly constrain journalistic enquiry, artistic expression or open justice.
Response to matters raised in the Issues Paper
The ABC makes the following comments and suggestions in response to the specific questions raised in the Issues Paper. At the outset, however, it must be noted that the answers to various questions may change depending on the precise form of the law which it is proposed to intro- duce (if that occurs).
Is there a need for a statutory cause of action for serious invasion of privacy in Australia?
The ABC expresses no view on this question except to caution against the development of a
3 patchwork of differing laws being enacted in various jurisdictions. If the Commonwealth is not to cover the field, then uniform laws should be adopted across all jurisdictions to ensure consistency in defining the elements of the cause of action, the defences and any remedies. In practice, this may be difficult to achieve.
While expressing no view, the ABC does wish to note that there are already a number of laws which contribute to the protection of privacy. These include laws involving the use of surveillance devices and telephone interception, the protection of confidential information and copyright, restrictions on identifying young people and others involved in court proceed- ings, suppression orders and contempt, trespass and anti-stalking laws.
Elements of the cause of action
4. Is ‘highly offensive’ an appropriate standard for a cause of action relating to serious invasions of privacy?
Yes. The ABC endorses the ALRC’s and VLRC’s views that ‘highly offensive’ is the preferable standard for the statutory cause of action as this sets an appropriately high threshold, focuses attention on significant invasions rather than minor or trivial matters, and is intended to en- sure freedom of expression is respected and not unduly constrained. This standard is consis- tent with the view expressed by Gleeson CJ in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, and with relevant US and NZ law.
5. Should the balancing of interests in any proposed cause of action be integrated into the cause of action (ALRC or NSWLRC) or constitute a separate defence (VLRC)?
The ABC agrees with the approach proposed by the ALRC and NSWLRC to integrate consid- eration of the public interest as part of the cause of action, where the plaintiff would have to establish that the privacy interest outweighs the public interest in disclosure. This would al- low the court to assess all the public interests at the outset to determine whether a sufficiently strong claim for invasion of privacy exists, without waiting for a defendant to explain the countervailing public interest as part of a defence.
6. How best could a statutory cause of action recognise the public interest in freedom of expression?
In the absence of written overarching constitutional or other protections for fundamental rights in Australian law (unlike in the US and UK, for instance), freedom of expression needs to be expressly recognised in any statutory cause of action for serious invasion of privacy. This can be done in various ways.
a. As a starting point, refer to freedom of expression in the objects clause of the statute. A use- ful approach that could be adapted is that used in the Standing Committee of Attorneys-
4 General’s uniform defamation model bill,1
3 Objects of Act
which provides:
The objects of this Act are:
(a) to enact provisions to promote uniform laws of defamation in Australia, and (b) to ensure that the law of defamation does not place unreasonable limits on free-
dom of expression and, in particular, on the publication and discussion of mat- ters of public interest and importance, and
(c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter, and
(d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.
b. Secondly, require the court to balance the public interest in privacy with public interest considerations which may justify invasion of privacy (for example, freedom of expression) to ensure that any restriction on freedom of expression or any other matter of public inter- est is proportionate to what is needed to protect privacy in the circumstances of the case.
c. Include a defence (if it is not satisfactorily addressed in the cause of action itself) allowing the privacy-invasive activity in the public interest, and expressly give a non-exhaustive list of matters which the concept of the public interest includes.2
1 Model Defamation Provisions prepared by the Parliamentary Counsel’s Committee and approved by the Standing Committee of Attorneys-General on 21 March 2005 (http://www.pcc.gov.au/uniform/pcc- 279-94-d10.pdf). Reputation and privacy are two closely allied personality rights which are often found intertwined—see, for instance, ALRC Report 11, Unfair Publication: Defamation and Privacy (http://www.alrc.gov.au/report-11), 1979.
For example, the ABC Edito-
2 The Commonwealth Attorney General’s Department, Revised outline of a possible national defamation law, July 2004 interest. This was not adopted by SCAG, but the relevance here is that, drawing in part on the 1979 ALRC recommendations, the proposal defined ‘subject of public interest’ to enable disclosures about a person’s health, private behaviour, financial affairs, home life, personal relationships or family relation- ships provided:
(i) it relates to the person’s public, commercial or professional activities;
(ii) it relates to the person’s suitability or candidature for a public, commercial or professional office or position;
(iii) it relates to a decision taken, or likely to be taken, by the person in a public, commercial or pro- fessional capacity;
(iv) it relates to property or services offered to the public;
(v) it relates to public administration;
(vi) it relates to the administration of justice;
(vii) it is reasonable to publish the matter (or, in the case of an imputation or an opinion, the matter conveying the imputation or expressing the opinion) in order to preserve the safety or property of any person;
5 rial Policies and Code of Practice state that ‘intrusion into a person’s private life without consent must be justified in the public interest and the extent of the intrusion must be lim- ited to what is proportionate in the circumstances’, and a glossary addresses ‘public inter- est’ as follows:
The ‘public interest’ cannot be exhaustively defined.
It includes but is not confined to:
• exposing or detecting crime;
• exposing significantly anti-social behaviour;
• exposing corruption or injustice;
• disclosing significant incompetence or negligence;
• protecting people’s health or safety;
• preventing people from being significantly misled by a statement or action of an individual or organisation in relation to a matter of public importance;
• disclosing information that assists people to better comprehend or make deci- sions on matters of public importance.
There is also a public interest in the internationally recognised civil and political rights, which include freedom of expression.
7. Is the inclusion of ‘intentional’ or ‘reckless’ as fault elements for any proposed cause of action appropriate, or should it contain different requirements as to fault?
The ABC endorses the views of the ALRC and NSWLRC that the cause of action, if intro- duced, should be limited to intentional or reckless breaches of privacy.
Should legislation specifically allow for consideration of a range of factors?
8. Should any legislation allow for the consideration of other relevant matters, and, if so, is the list of matters proposed by the NSWLRC necessary and sufficient?
The ABC expresses no view on the NSWLRC proposal requiring courts to consider a range of matters to assess whether there has been an actionable invasion of privacy except to reiterate the suggestions made earlier in this submission under Question 6.
(viii) the matter (or, in the case of an imputation or an opinion, the matter that conveys or expresses
the imputation or opinion) is published in response to something introduced into public debate by the person himself or herself, otherwise than by way of response to something introduced into public debate by someone else.
The UK Press Complaints Commission adopts a shorter list but the same approach—see their Editors’
Code of Practice (http://www.pcc.org.uk/cop/practice.html). The Australian Press Council’s General Statement of Principles (http://www.presscouncil.org.au/general-principles) takes a different tack, de- fining ‘public interest’ as ‘a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happens to them or to others’.
6 (p 40) Interaction between the cause of action and other legislation
The Issues Paper proposes (at page 40) that courts be required to consider the availability of any other relevant law—and remedies under such law—when determining whether a cause of action exists and what remedy should be available.
The ABC supports legislative efforts that aim to minimise the prospect of a plaintiff re- litigating matters that have already been adequately dealt with under other laws, and which discourage plaintiffs from ‘double dipping’ by seeking remedies where adequate redress has already been given. Consideration might be given to adapting the approach in section 41(1) of the Privacy Act 1988 (Cth), which sets out the circumstances in with the Privacy Commissioner may decline to investigate or may defer investigation of a complaint. These circumstances in- clude:
…
(e) the act or practice is the subject of an application under another Commonwealth law, or a State or Territory law, and the subject-matter of the complaint has been, or is being, dealt with adequately under that law; or
(f) another Commonwealth law, or a State or Territory law, provides a more appro- priate remedy for the act or practice that is the subject of the complaint.
Consideration should also be given to empowering a court to decline to entertain a complaint where the matter has already been adequately dealt with under a code of practice, including codes developed under self-regulatory and co-regulatory schemes.
9. Should a non-exhaustive list of activities which could constitute an invasion of privacy be included in the legislation creating a statutory cause of action, or in other explanatory material? If a list were to be included, should any changes be made to the list proposed by the ALRC?
Legislation creating a statutory cause of action should not include a list of activities that are either presumed or may in practice become assumed to constitute an invasion of privacy. This could hamper the court in its assessment about whether a claim is actionable in the first place.
Under the earlier proposal (in Question 5), the plaintiff is required to establish that the privacy interest outweighs the public interest in favour of disclosure. A list of suggested invasive ac- tivities would tend to constrain the intended balancing exercise. For instance, the interest in maintaining the privacy of sensitive personal information may be outweighed by the public interest in disclosure of information relevant to a political leaders’ ability to hold public of- fice.3 Case law suggests that privacy issues can arise in a wide variety of situations4
3 See, e.g., the Case of Éditions Plon v. France (Application no. 58148/00, 18 May 2004, http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166 DEA398649&key=27738&sessionId=78525698&skin=hudoc-en&attachment=true): After the death of former French President Francois Mitterrand, his doctor published a book revealing that Mitterrand had deceived the public about his health when seeking re-election. The European Court of Human Rights and that
7 the proper resolution of claims alleging a serious invasion of privacy requires, as the UK courts put it, an intense focus on how the various interests at stake are implicated in the par- ticular circumstances of each case.
Defences and exemptions
10. What should be included as defences to any proposed cause of action?
The ABC reserves its view on this question, as the answer will depend on what form the cause of action (if enacted) takes. In principle, the ABC supports the inclusion of at least the follow- ing defences if they are not already appropriately addressed in the cause of action itself:
• the individual concerned consented to the act or conduct;
• the act or conduct was authorised or required by law;
• information published in the course of parliamentary, judicial and other proceedings (i.e., situations which would be covered by the defence of absolute privilege in the con- text of defamation law);
• fair and accurate report of proceedings of public concern;
• publication of documents or information in the public domain;
• disclosure of matters of public interest; and
• innocent dissemination.
This list is not intended to be exhaustive.
found that, while a short-term ban was appropriate in the immediate aftermath of Mitterrand’s death given the interests of his grieving family, the long-term ban on the book was disproportionate given the public interest at stake in ‘the public’s right to be informed about any serious illnesses suffered by the head of State, and the question whether a person who knew that he was seriously ill was fit to hold the highest national office. Furthermore, the secrecy which President Mitterrand imposed, according to the book, with regard to his condition and its development, from the moment he became ill and at least until the point when the public was informed (more than ten years afterwards), raised the public-interest is- sue of the transparency of political life.’
4 For example Wainwright v Home Office [2003] UKHL 53 and Wainwright’s appeal [2006] ECHR 807 (mother visiting son in prison is strip searched within view of uncurtained window); Giller v Procopets [2008] VSCA 236 (estranged lover threatens to show the couple’s sex tape to former partner’s parents, friends and employer); Ash v McKennitt [2006] EWCA Civ 1714 (friend of well-known folk singer pub- lishes book revealing aspects of famous friend’s life and confidences); Ferdinand v MGN Ltd [2011]
EWHC 2454 (former lover of national football team captain sells her story to newspaper); Kyllo v. United States (2001) 533 U.S. 27 (police use thermal-imaging equipment without warrant to search the interior of a home); R v Chief Constable of South Yorkshire Police, ex parte applications by LS and Marper [2004] UKHL 39 and S and Marper’s appeal [2008] ECHR 1581 (indefinite retention of unconvicted persons’ fingerprint and DNA data on police database irrespective of seriousness of offence or age of suspect); Hosking v Runting [2004] NZCA 34, Murray v Express Newspapers Plc [2007] EWHC 1908, Von Hannover v Germany [2004] ECHR 294, Campbell v MGN Ltd [2004] UKHL 22 and MGN Ltd’s appeal [2008] ECHR 1255 (fa- mous people object to publication of photos taken of them and/or their children in public places).
8 11. Should particular organisations or types of organisations be excluded from the ambit of
any proposed cause of action, or should defences be used to restrict its application?
The Issues Paper raises the possibility of exempting law enforcement and national security agencies from a statutory cause of action. The Issues Paper notes that the ALRC, NSWLRC and VLRC recommended against a blanket ban for particular organisations or activities. The law reform commissions took the view that the threshold requirements, together with the de- fences (authorised under law) would provide ‘a more appropriate means to ensure the cause of action does not capture behaviour it should not’.
The ABC supports the law reform commissions’ approach. Any statutory cause of action for serious privacy invasion should be of general application.
Remedies
12. Are the remedies recommended by the ALRC necessary and sufficient for, and appropriate to, the proposed cause of action?
In principle, the ABC supports the proposed list of remedies. The precise terms of particular remedies will require further scrutiny. For example, corrections orders will need to appropri- ately take into account the exercise of editorial independence.
Care will also need to be exercised in relation to the use of injunctions and the threat of liti- gation to ensure they do not unduly restrain freedom of expression or open justice—
a. Courts already have powers to make non-publication orders and that is the appropriate mechanism for restricting what can be reported. There should be no additional restriction on publishing reports of court proceedings. Nor should there be any additional restriction on publishing reports of parliament or other proceedings of public concern.
b. The experience in the United Kingdom in relation to the use of injunctions and super- injunctions in privacy claims should inform the drafting of legislation and procedures in Australia. See, for example, the Practice Guidance issued by the Master of the Rolls, Lord Neuberger,5 which sets out the procedure for applying for injunctions to protect informa- tion said to be private or confidential pending trial. Section 12 of the UK Human Rights Act6
5 Practice Guidance: Interim Non-Disclosure Orders, issued by the Master of the Rolls and to come into effect on 1 August 2011. This guidance was originally published in draft form in an Annex to Lord Neuberger’s Committee, Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice, May 2011. These documents are available at http://www.judiciary.gov.uk/
publications-and-reports/guidance/super-injunction-and-anonymised-inj-data-collection-and-guidance- non-disclosure-inj.
6 Section 12 (Freedom of expression), UK Human Rights Act, (http://www.legislation.gov.uk/ukpga/
1998/42/section/12) provides:
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
9 is also a useful model that could be adapted to ensure a proper balance is struck between free speech and privacy.7
c. Consideration should also be given to minimising the use of litigation as a threat to the exercise of free speech by introducing ‘Anti-SLAPP’ protections similar to what are used overseas8 and here in Australia in the ACT.9
13. Should the legislation prescribe a maximum award of damages for non-economic loss, and if so, what should that limit be?
The ABC supports a cap on damages for non-economic loss. The ABC does not express a view about what limit should be set except to recommend that the limit be no more than that which is set for defamation laws, and to again emphasise the importance of uniformity in laws to avoid the prospect of forum shopping for privacy actions.
(2) If the person against whom the application for relief is made (“the respondent”) is neither present
nor represented, no such relief is to be granted unless the court is satisfied—
(a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(a) the extent to which—
(i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
(5) In this section—
“court” includes a tribunal; and
“relief” includes any remedy or order (other than in criminal proceedings).
7 For practical examples of s 12 being applied by the courts, see Terry v Persons Unknown [2010] EWHC 119 (http://www.bailii.org/ew/cases/EWHC/QB/2010/119.html) and Hutcheson v News Group News- papers [2011] EWCA Civ 808 (http://www.bailii.org/ew/cases/EWCA/Civ/2011/808.html).
8 SLAPPs is an acronym for Strategic Lawsuits Against Public Participation. A useful overview of SLAPPs, and of the anti-SLAPP laws existing in 26 US states (and some illustrative court cases), is pro- vided by the Citizen Media Law Project (hosted by Harvard University’s Berkman Center for Internet Law & Society), (http://www.citmedialaw.org/legal-guide/responding-strategic-lawsuits-against- public-participation-slapps). A model draft Anti-SLAPP bill has also been proposed by the Society of Professional Journalists, (http://www.spj.org/antislapp.asp#4).
9 Protection of Public Participation Act 2008 (ACT), (http://www.legislation.act.gov.au/a/2008- 48/20080912-37699/pdf/2008-48.pdf), the stated purpose of which is ‘to protect public participation, and discourage certain civil proceedings that a reasonable person would consider interfere with engagement in public participation.’
10 14. Should any proposed cause of action require proof of damage? If so, how should
damage be defined for the purposes of the cause of action?
No. The ABC acknowledges that privacy intrusions can result in humiliation and personal distress which would not generally be accepted as damage for the purpose of establishing a cause of action which depends on damages being proved.
Resolving matters without resort to litigation
15. Should any proposed cause of action also allow for an offer of amends process?
In principle, yes. Assisting parties to resolve matters without resort to litigation can promote access to justice by reducing court costs and be beneficial to all parties by facilitating early resolution.
Other issues
16. Should any proposed cause of action be restricted to natural persons?
17. Should any proposed cause of action be restricted to living persons?
The ABC supports the recommendation of the ALRC, NSWLRC and VLRC that any cause of action for serious invasion of privacy be limited to natural, living persons.
18. Within what period, and from what date, should an action for serious invasion of privacy be required to be commenced?
The ABC supports the NSWLRC proposal to adopt a one-year limitation period, consistent with defamation laws, with judicial discretion to extend it to three years.
Consideration should be given to clarifying when the limitation period starts running in rela- tion to alleged privacy intrusion by online publications. The United Kingdom has recently inquired into this issue in the context of defamation law10 and is now proposing to introduce a
‘single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one year limitation period has passed’.11
10 UK Ministry of Justice, Defamation and the internet: the multiple publication rule, Consultation Paper CP20/09, 16 September 2009, http://www.justice.gov.uk/consultations/docs/defamation-consultation- paper.pdf. Also see the Response to Consultation CP(R) 20/09, 23 March 2010, http://www.justice.gov.uk/consultations/docs/defamation-internet-response-web.pdf.
11 UK Ministry of Justice, Draft Defamation Bill, Consultation Paper CP3/11, March 2011, http://www.justice.gov.uk/downloads/consultations/draft-defamation-bill-consultation.pdf.
11 19. Which forums should have jurisdiction to hear and determine claims made for serious
invasion of privacy?
Other than suggesting that the courts are the most appropriate forum to determine claims in this area, the ABC expresses no view about this except to note that, to some extent, the choice of forum will be dependent on whether the statutory cause of action is comprehensively en- acted by the Commonwealth government (i.e., in a way to cover the field), or whether uniform laws are adopted by the States and Territories. As with the ALRC’s recommendations in rela- tion to data protection laws12
12 See Chapter 3, ‘Achieving National Consistency’, in ALRC Report 108, For Your Information: Austra- lian Privacy Law and Practice, 2008, http://www.alrc.gov.au/publications/report-108.
and for the same basic reason—that is, continuing borderless technological change—every care should be taken to avoid the haphazard development across federal, state and territory jurisdictions of differing privacy laws.
12
Attachment
Privacy-related complaints made to media regulators
Australian Press Council (Press Council), Australian Broadcasting Authority (ABA), and Australian Communications and Media Authority (ACMA)
Summary
Privacy-related complaints account for about 5 percent of all complaints received by the Press Council and about 5 percent of complaints investigated by the main broadcasting regulator.
The proportion has remained steady for about 20 years. The data is incomplete, but there is enough to support the assertion that, whatever may be the circumstances in other countries, in Australia the media are not, and have not been, a major contributor to privacy intrusion.
Privacy complaint statistics and main findings
Following are tables setting out the proportion of privacy-related complaints made to the print and broadcast media regulators from 1989 through 2010 in the case of the Press Council, and from 1995 through 2011 in the case of the ABA and its successor the ACMA. The figures show:
• The Press Council investigated 8700 complaints over a 21-year period. Of these, 460 raised privacy concerns, constituting 5.3% of all complaints.
• The ABA/ACMA investigated 2015 complaints over a 14-year period. Of these 96 raised privacy concerns, constituting 4.8% of all complaints. Only 18 privacy-related complaints resulted in breach findings, or 0.9% of the total matters investigated.
Sources
The figures were drawn from annual reports and other material that is publicly available from the regulator’s website (www.presscouncil.org.au and www.acma.gov.au, respectively). Older material no longer published by the regulators was accessed through the publicly available Internet Archive service (www.archive.org).
Qualifications
Broadcast complaints statistics were not available online for the two financial years, 1999–2000 and 2004–2005. The initial three annual reports for the ABA, which commenced operation in October 1992, were also not available online. In compiling the statistics, some information was not included in the annual reports—these and other qualifications are noted in the footnotes.
13
Australian Press Council PRIVACY-RELATED COMPAINTS
1989–201013
Year Total complaints Privacy complaints Privacy as % of total
1989–90 233 5 2.1
1990–91 345 12 3.5
1991–92 421 17 4.0
1992–93 429 23 5.4
1993–94 406 16 3.9
1994–95 416 29 7.0
1995–96 413 23 5.6
1996–97 399 36 9.0
1997–98 434 29 6.7
1998–99 468 14 3.0
1999–00 403 21 5.2
2000–01 413 26 6.3
2001–02 390 23 5.9
2002–03 367 22 6.0
2003–04 416 24 5.8
2004–05 425 25 5.9
2005–06 420 23 5.5
2006–07 421 26 6.2
2007–08 457 25 5.5
2008–09 506 20 4.0
2009–10 529 21 4.0
TOTAL 8711 460 5.3%
13 Source for the 1989–1999 figures: Australian Press Council, Annual Report No. 23, 30 June 1999. As cited in Cth Parliament, Senate Information Technologies Committee, In the Public Interest: Monitoring Australia’s Media, April 2000, page 25, http://www.aph.gov.au/senate/committee/it_ctte/
completed_inquiries/1999-02/selfreg/report/c02.pdf. Source for the 1999–2010 figures: Australian Press Council, annual reports (on presscouncil.org.au) covering the period 2005–06 to 2009–10; and Complaints Statistics (archived, accessed via www.archive.org) covering the period 1999–00 to 2004–05.
14
Australian Broadcasting Authority and Australian Communications and Media Authority
14PRIVACY-RELATED COMPLAINTS and PRIVACY BREACHES
July 1995 – June 201115
(excluding the 1999–00 and 2004–05 financial years) Year16 Total investigations17
(excluding terminated complaints18
Investigations involving privacy
(excluding matters not published )
19
Privacy issues as % of total investigations )
Privacy breaches
Privacy breaches as %
of total investigations 1992-93
1993-94 1994-95
None of these years’
annual reports were available online
1995-9620 170 6 3.5 0 0.0
1996-9721 115 5 4.3 1 0.9
1997-9822 135 5 3.7 3 2.2
1998-99 109 4 3.7 0 0.0
1999-00 Not available online23
2000-01 154 9 5.8 3 1.9
2001-0224 163 12 7.4 3 1.8
2002-0325 106 11 10.4 5 4.7
2003-0426 106 5 4.7 1 0.9
2004-05 Not available online27
2005-06 134 7 5.2 0 0.0
2006-07 131 3 2.3 0 0.0
2007-08 131 4 3.1 1 0.8
2008-09 189 10 5.3 1 0.5
2009-10 185 9 4.9 0 0.0
2010-1128 187 6 3.2 0 0.0
TOTAL 2015 investigations 96 privacy-related complaints
4.8% privacy complaints
overall
18 privacy breaches
0.9% privacy breaches
overall
14 The Australian Broadcasting Authority (ABA) was established by s 154(1) of the Broadcasting Services Act and began operations on 5 October 1992. The ABA ceased operations on 30 June 2005, when it merged with the Australian Communications Authority to become the Australian Communications and Media Authority (ACMA). ACMA commenced operations on 1 July 2005.
15 Source for the 2005-2011 figures: ACMA, annual reports (on www.acma.gov.au). Source for the 1995–
1999 and 2000–2004 figures: ABA, annual reports (archived, accessed via www.archive.org). The annual reports for 1999–00 and 2004–05 were not available online.
16 In some cases, the annual report does not make all investigations public. These are noted below, in the year column.
17 Investigations can cover multiple content standards etc. alleged to have been breached.
18 Including complaints withdrawn or unable to be investigated.
19 ACMA’s investigations include complaints about compliance with the BSA, licence conditions, stan- dards, and codes of practice. Some investigations involve multiple breaches across these areas.
20 One breach finding was not published, and it appears one extra non-breach finding is included in the appendices than is reported in the narrative.
21 In 1996–97, ten findings were not published: two breach findings were said not to have been published as they involve possible outstanding litigation, and eight non-breach findings were not published. It is not clear whether the eight unpublished non-breach findings include the seven ‘admitted breaches’
which occurred while the ABA’s investigation was in progress.
22 In 1997–98, the details of two findings (both non-breach) were not published.
15
23 The annual report for the following year (2000–01) notes that, in 1999-00, there were 133 completed investigations. The 2000–01 annual report also refers to the Commercial Radio Inquiry and the expansion of its terms of reference in July and November 1999 to include radio stations 3AW, 5AD, 5DN and 6PR.
ACMA’s website listing of breach investigations includes two breach findings during the 1999–2000 year: 2GB Graham Richardson Show, and QTQ-9 A Current Affair.
24 In 2001–02, the details of three findings (all breach) were not published.
25 In 2002–03, two non-breach findings were not published.
26 In 2003–04, the details of two findings (both non-breach) were not published.
27 The narrative section of the 2004–05 annual report (chapters 1–8, http://www.acma.gov.au/
webwr/_assets/main/lib100116/aba_ar_ch1-8.pdf) stated there were 153 investigations completed. The appendices, which indicates whether privacy was raised as a concern and whether a privacy breach was found, were not available online. ACMA’s website listing of breach investigations includes two breach findings during the 2004–05 year: NBN 9 60 Minutes; TVQ First At Five News.
28 In 2010–11, the details of four findings (one breach and three non-breach) were not published.
