ABC submission to the
Australian Communications and Media Authority on its Consultation Paper relating to its Review of the Privacy Guidelines for Broadcasters
October 2011
Introduction
The ABC welcomes the opportunity to respond to the ACMA’s review and revision of the August 2005 Privacy Guidelines for Broadcasters (‘the 2005 Guidelines’). The ABC makes the following comments and suggestions in response to the matters raised by the Revised Guide- lines.
Privacy law
In the Introduction section of the Revised Guidelines, the ACMA notes that there is ‘no gen- eral right to privacy under Australian law’. This may inadvertently give the impression that the treatment of privacy in broadcasters’ Codes is therefore the only way privacy is addressed.
To provide a more complete picture of the protection of privacy in Australia, the Guidelines might note that the media—like any other organisation or person—must comply with a num- ber 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 nuisance.
Application and status of the Guidelines
The Revised Guidelines state that they ‘are intended to assist broadcasters to better under-
align with the Guidelines. The 2005 Guidelines include an interpretive clause that clarifies their status as advisory and not legally binding, and which refers to the need to assess each complaint against the provisions of the Code and facts of the particular case. It is recom- mended that the revised Guidelines include a similar statement. Consideration should also be given to clarifying that, to the extent of any inconsistency between the Guidelines and a Code, the Code will prevail.
Complaints about privacy under the ABC Code of Practice
Other Code provisions relating to privacy
The ACMA refers in Appendix 2 of its consultation paper to relevant extracts of broadcasters’
Codes which deal with privacy. In relation to the ABC Code of Practice, Appendix 2 extracts Section 6, which sets out the principles and standard relating to Privacy. While the appendix may not have been intended to be comprehensive in extracting relevant sections from each Code, the Corporation wishes to draw the ACMA’s attention to the fact that other sections of the ABC Code and related guidance may also relevantly address privacy matters which may arise in particular complaints.
For instance, consent in relation to the participation of children is dealt with in section 8 of the ABC Code, objections by individuals who do not wish to participate in ABC content in section 5, intrusion into grief in section 7, maintaining anonymity of sources and assurances of confidentiality in section 5, and the use of secret recording and other types of deception—
whether by consent or for journalistic or artistic purposes—in section 5. The Corporation has issued relevant guidance notes in relation to children’s participation online, the use of secret recording devices in news and current affairs, dealing with sources, and the use of pictures from social networking sites.
Guidance notes will continue to be issued from time to time and, while not binding, should be referred to when interpreting the ABC Code—as the ABC Code requires in section 1. Sec- tion 1 also refers to the need to interpret the Code in a way that maintains independence and integrity, preserves trust and does not unduly constrain journalistic enquiry or artistic expres- sion. The ABC has also published a glossary of terms used in the Code of Practice (http://abc.net.au/corp/pubs/documents/20110408/GlossaryPOL.pdf), including a non- exhaustive definition of ‘public interest’.
As will be discussed later in this Submission, the ABC’s approach differs in a number of re- spects from the approach the ACMA proposes to adopt in the Revised Guidelines.
The ACMA’s jurisdiction to investigate privacy complaints
The 2005 Guidelines include a section outlining the ACMA’s responsibility for investigating unresolved complaints under the broadcasting Codes. The Revised Guidelines do not address the ACMA’s complaints-handling jurisdiction.
The ABC Code of Practice notified to the ACMA earlier this year contains new sections that relevantly affect which complaints the ACMA can investigate under the Code. Part II of the ABC Code makes clear that the Code does not apply to any complaint relating to the Privacy
or Fair and Honest Dealing standards unless the complainant has a sufficient interest in the subject matter of the complaint or the ABC had exercised its discretion to investigate the com- plaint. The ABC may exercise this discretion where the ABC is satisfied it is appropriate to do so, having regard to factors such as the seriousness of the alleged breach. Where the ABC de- cides to investigate a privacy complaint made by a third party, the Code is intended to apply and the complainant would then be entitled to complain to the ACMA.
Complaints which have been resolved
Part III of the ABC Code introduces a new category of complaint outcome—‘Resolved Com- plaints’—and provides that a complaint will not be a breach of the Code if, prior to the com- plaint being made to the ACMA, the ABC has taken steps that are adequate and appropriate in the circumstances to redress the cause of complaint. The Code illustrates this by stating that a failure to comply with the Accuracy standard would be considered ‘resolved’ where an ade- quate and appropriate correction is made within 30 days of the ABC receiving the complaint.
The Resolved Complaints provisions have a twofold aim. First, it encourages early resolu- tion of complaints, which is recognised as beneficial to both the complainant and the agency handling the complaint—particularly in relation to privacy complaints, where lengthy inves- tigations can, in some cases, compound a complainant’s privacy concerns. Secondly, a ‘re- solved complaints’ category caters for matters in which the cause of complaint is not in dispute and the ABC has done whatever was appropriate and reasonable in the circumstances to resolve the matter. This categorisation of a complaint as ‘resolved’ is qualitatively different from a complaint that makes a finding of ‘breach’. This is intended to be reflected in any sub- sequent investigation or reporting by the complaints investigator, and is intended to guide the manner in which the complaint is investigated and determined.
Threshold for a privacy breach
Threshold questions under the 2005 Guidelines
The current 2005 Guidelines note that broadcasting Codes generally provide that material re- lating to a person’s private affairs should not be used without consent, unless there is an iden- tifiable public interest reason for the material to be broadcast. The 2005 Guidelines then suggest the following two main questions be considered when assessing complaints about intrusion into privacy:
• did the material relate to a person’s private affairs? and
• was its broadcast warranted in the public interest?
The ABC Code of Practice similarly requires consideration of whether a person’s private life was intruded upon, and whether the intrusion was warranted in the public interest:
6.1 Intrusion into a person’s private life without consent must be justified in the public in- terest and the extent of the intrusion must be limited to what is proportionate in the cir- cumstances
Threshold questions under the Revised Guidelines
The Revised Guidelines have introduced much broader tests. They are stated to be based on the formulation articulated by Gleeson CJ in the High Court case of ABC v Lenah Game Meats, adopted in Jane Doe v ABC, and also discussed by the NSW Law Reform Commission in its privacy report. The ACMA now describes the coverage of broadcasters’ Codes as being aimed at protecting against broadcast of material that invades a person’s privacy either by:
• disclosing personal information; or
• intruding upon his or her seclusion.
This characterisation leads the ACMA to recast the threshold questions it will consider in assessing a privacy complaint. The Revised Guidelines propose that the ACMA will consider two questions which, if both are answered affirmatively, will mean ‘there will be a potential breach of Code privacy provisions’:
• was a person identifiable from the broadcast material?
• did the broadcast material disclose personal information or intrude upon the person’s seclusion in more than a fleeting way?
The ACMA’s investigation then follows a series of steps that consider whether there was consent, whether the material was in the public domain, and whether there was a public inter- est justification for the broadcast.
This new approach does not represent the approach adopted by the ABC in its Code of Practice. As noted in brief above, the 2005 Guidelines better reflect the ABC’s Privacy stan- dard, which refers to a person’s ‘private life’—not their personal information—and which in- corporates consideration of consent and the public interest at the outset, where this is relevant to the particular standard alleged to have been breached. (See the next section, which explains that differing considerations may apply, depending on the nature of the alleged intrusion into privacy and the standard invoked.)
The ACMA’s new approach in the Revised Guidelines also omits some of the essential elements that are to be found in Gleeson CJ’s judgement, in the discussion by the NSW Law Reform Commission, and by the federal and Victorian law reform commissions in their re- spective privacy reports. The formulations proposed by the courts and the law reform com- missions are careful to distinguish between disclosures of ‘personal information’ and disclosures of ‘private information’; refer to the requirement that there be a ‘reasonable expec- tation of privacy’; and require any intrusions to be unwarranted or ‘highly offensive to a rea- sonable person’.
Ensuring the ACMA’s approach aligns with a broadcaster’s Code provisions
The first question the ACMA should examine is the extent to which the broadcaster’s Code relevantly addresses complaints relating to privacy. The broadcaster’s Code should always be the starting point when investigating Code complaints. The Revised Guidelines should not be used to import new rules into a broadcaster’s Code. It should be clear that the Guidelines only apply to the extent that they are compatible with the privacy standards already set out in a Code. It is open for a broadcaster’s Code to consider threshold questions that differ from those nominated by the ACMA in the Revised Guidelines.
In the case of the ABC Code of Practice, an alleged privacy breach under standard 6.1 re- quires an assessment of the factors set out in that standard, as interpreted in light of the prin- ciples in section 6 and any guidance. So, the questions that should be asked include:
• Did the individual consent to the disclosure or activity that is the subject of the com- plaint?
• If not, was there an intrusion into a person’s private life, having regard to whether in the circumstances there was a reasonable expectation of privacy?
• Was there public interest justification for the intrusion, having regard to the meaning of ‘public interest’ set out in the ABC’s glossary of terms?
• Was the intrusion proportionate in the circumstances?
An alleged breach of other editorial standards relevant to privacy may require different considerations. For instance, a complaint about the use of secret recording would be ad- dressed by reference to standard 5.8 and related guidance. Relevant questions to ask when investigating such a complaint would include:
• Were secret recording devices or other types of deception used to obtain or seek infor- mation, audio, pictures or an agreement to participate?
• Was consent obtained or identities effectively obscured?
• If not, was the use of secret recording devices justified in the public interest and the material unable to be reasonably obtained by any other means? Or, was the use of se- cret recording integral to an artistic work and was the potential for harm taken into consideration?
A complaint about intrusion into grief would be considered under standard 7.5, which raises these threshold questions for consideration:
• Was the reporting or depiction of violence, tragedy or trauma handled with extreme sensitivity?
• Was undue distress caused to victims, witnesses or bereaved relatives?
• Was regard given to significant cultural practices when depicting or reporting on re- cently deceased persons?
Threshold questions where the Guidelines align with the approach taken in a Code
To the extent that the Guidelines are compatible with the approach taken in the relevant pro- vision of a broadcaster’s Code, it is recommended that the threshold questions the ACMA adopt be reformulated to pick up the elements proposed by Gleeson CJ and the law reform commissions. Alternatively, the ACMA might consider reverting to the tests used in the 2005 Guidelines.
The Revised Guidelines should not use ‘personal information’ as an equivalent for ‘private information’ or ‘private affairs’. ‘Personal information’ is a much broader concept than private information. Privacy statutes tend to define ‘personal information’ to mean any information—
whether or not true, and including an opinion—about an identifiable person. Within ‘personal information’, the privacy statutes include a category of ‘sensitive information’. This includes information relating to a person’s racial or ethnic origin, sexual preferences or practices, politi- cal opinions, criminal history or health. Gleeson CJ identifies such categories as ‘easy to iden- tify as private’ and then suggests a broader test to apply to other types of information or activities the disclosure or observation of which would be regarded as ‘highly offensive to a reasonable person’:
Certain kinds of information about a person, such as information relating to health, per- sonal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and be- haviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.
It is generally accepted that the mere disclosure of personal information does not in itself constitute a privacy breach. ‘Personal information’—i.e., information about an identifiable person—is routinely disclosed every day without any suggestion of there being a privacy breach. Quotes from identifiable people are reported in the press, photographs of identifiable celebrities are printed in magazines, self-identified audience members’ questions and com- ments are broadcast on television shows. These disclosures are not generally regarded as pri- vacy-intrusive. They are not, to use Gleeson CJ’s test, ‘highly offensive to a reasonable person of ordinary sensibilities’. Complaints about such disclosures should not, without more, be presumed to be in breach of Code privacy provisions.
The Revised Guidelines also indicate that a potential privacy breach may arise whenever a disclosure or intrusion into seclusion occurs, except where such intrusion is ‘fleeting’. The sec- tion on ‘Seclusion’ proposes that an intrusion into a person’s seclusion may be established where:
• the person has a reasonable expectation that his or her activities would not be observed or overheard by others; and
• ‘a person of ordinary sensibilities would consider the broadcast of these activities to be inappropriate or offensive’. The broadcast must be ‘more than fleeting’, and may occur in a public space.
The ACMA again refers to Gleeson CJ in ABC v Lenah Game Meats Pty Ltd as the basis for the formulation of its test. As noted earlier, Gleeson CJ’s test is not one of a reasonable person finding the activity merely ‘inappropriate or offensive’. Rather, the test is that the conduct would be ‘highly offensive to a reasonable person of ordinary sensibilities’. The ACMA’s test sets a lower threshold than ‘highly offensive’ and does not appear to require the person to be
‘reasonable’. This formulation potentially captures a much broader range of conduct as intru- sive on the basis that someone ‘of ordinary sensibilities’ might find it distasteful. ‘Inappropri- ate’ is very broadly defined to mean ‘not suitable or proper’. A higher threshold should be set, such as the test suggested by Gleeson CJ of the disclosure or conduct being ‘highly offensive to a reasonable person of ordinary sensibilities’.
Surreptitiously obtained material and consent
The Revised Guidelines state that a person waives his or her claim to privacy protection if in- formed consent is obtained prior to the broadcast of material. However, the ‘Consent’ section in the Revised Guidelines also states that the use of material that has been surreptitiously ob- tained will be an indicator that the person had a reasonable expectation of privacy and has not—at least at the time the material was obtained—consented to the broadcast. This leaves open the question of what effect consent will be taken to have when a person who has been secretly recorded consents to the broadcast of that material. The Revised Guidelines should clarify this.
The ABC’s approach is set out in standard 5.8:
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 ex- cept 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.
Under the ABC Code, secret recording may be used with consent or if one of the other ex- ceptions apply—namely where there is a public interest justification, identities are obscured, or in the context of artistic works.
Children and vulnerable people
The Revised Guidelines require special care be taken in the use of material concerning a
approach in the Code. The ABC Code of Practice addresses the protection of children and young people in Section 8, providing greater—and differing—guidance than the ACMA pro- poses in its Revised Guidelines.
First, Section 8 applies to ‘children and young people’, rather than to children alone. Al- though the ABC glossary uses an age limit (18 years) when defining the phrase, express rec- ognition is given to there being no set age at which a child becomes a young person. The definition is informed by commonly accepted tests relating to when children are able to give consent, focussing more on the maturity and understanding of the particular child than sim- ply on their age. Parental responsibility and the interests of the child are also acknowledged.
‘Children and young people’ is defined in the ABC’s glossary as follows:
For the purposes of the Editorial Policies and the Code of Practice, children and young people are under the age of 18 years. There is no set age at which a child transforms into a young person. The ABC recognises that individual needs and interests can differ vastly across early childhood, childhood and young adulthood. Relevant factors to bear in mind include the child or young person’s age, level of maturity and understanding. Recognising that protecting the interests of children and young people is a shared responsibility (see the Principles in Section 8), it may also be relevant to consider the child or young person’s ac- cess to parental or other sources of advice, support and supervision.
Second, Section 8 does not mandate that consent be obtained from a parent or guardian.
There will be situations where it may be unnecessary or inappropriate for parental consent to be sought. For instance:
• a young person may have sufficient maturity and understanding to consent on their own behalf; or
• it may be reasonable for consent to be obtained from someone such as a school princi- pal, where it is reasonable to assume they are authorised to consent; or
• it may not be possible or in the best interests of the child for parental consent to be sought, and there is a public interest in favour of broadcast—such as when publicising child abduction or abandonment cases.
Third, the ABC Code has more detailed guidance relating to the protection of children, in- cluding standards relating to:
• taking due care over the dignity and physical and emotional welfare of children and young people who are involved in making, participating in and presenting content produced or commissioned by the ABC (standard 8.1);
• considering the appropriateness of obtaining the consent of both the child/young person and the parent/guardian, before significant participation of a child or young person in ABC content (standard 8.2);
• adopting appropriate measures wherever practicable to enable children and young people, or those who supervise them, to manage risks associated with the child/
young person’s participation with, use of and exposure to ABC content and services designed for them (standard 8.3); and
• taking particular care to minimise risks of exposure to unsuitable content or inappro- priate contact by peers or strangers (standard 8.4).
Material in the public domain
The Revised Guidelines state that material from social media sites may be used without being regarded as privacy invasive, provided access restrictions had not been breached.
Social media is a fast-developing field in which few standards can be regarded as defini- tively settled. Privacy is particularly contested. For example, unilateral changes to privacy set- tings by large social media entities such as Facebook can generate considerable controversy. In the circumstances, consideration could be given to providing more detail in the Revised Guidelines about the sort of issues that might be relevantly taken into account.
The ABC’s guidance in this area suggests more detailed consideration be given before us- ing pictures from social media sites in news reports.1
1. What was the newsworthy person’s reasonable expectation about the extent to which the picture would be disseminated? For example—
Criteria to be considered go beyond the question of whether the material was in the public domain and whether access was restricted, asking the following questions:
• Is it obvious from the context that the person intends the picture to be fully in the public domain?
• Did the newsworthy person post the picture himself/herself, or is the picture on someone else’s page?
• Did the newsworthy person attach any conditions to the wider use of the picture?
• Does the social networking site itself have well-known policies or tools to control how posted pictures become accessible to others?
2. Can the consent of the newsworthy person be sought?
3. When obtaining consent is not practicable, does the public interest in using the picture outweigh—
• the reasonable expectation of privacy of the newsworthy person?
• the impact that the intended use of the picture may have on any person who, whether or not in the picture, may be suffering grief or other distress?
• the impact that the intended use of the picture is likely to have on any person who may just happen to be in the picture with the newsworthy person? Can this issue be dealt with by cropping or pixelating the picture accordingly?
4. What steps have been taken to verify the picture? This includes the identity of persons depicted and the authenticity of what is depicted. Digital images are susceptible to ma- nipulation.
5. Have any relevant legal issues such as copyright, defamation or contempt of court been considered?
6. Would the picture, in the context in which the ABC proposes to use it, be likely to hu-
miliate or otherwise do harm disproportionate to the public interest to be served by the use?
While not binding, this guidance is intended to assist content makers in balancing privacy and the public interest in a way that minimises not only unwarranted intrusions but also inac- curacies and other potential harms.
Public interest
The Revised Guidelines define ‘public interest issues’ to include:
• public health and security;
• criminal activities;
• corruption;
• misleading the public;
• serious anti-social behaviour;
• politics;
• government and public administration;
• elections; and
• the conduct of corporations, businesses, trade unions and religious organisations.
In the case of public figures, the Revised Guidelines state that the broadcast of privacy- intrusive material may be warranted ‘if it raises or answers questions’ about any of the follow- ing:
• the person’s appointment to or resignation from public office
• the person’s fitness for office
• the person’s capacity to carry out his or her duties
• conduct or behaviour that contradicts the person’s stated position on an issue.
As noted earlier in this Submission, the ABC defines public interest in its glossary. The definition is non-exhaustive and includes:
• 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 indi- vidual or organisation in relation to a matter of public importance;
• disclosing information that assists people to better comprehend or make decisions on matters of public importance.
The ABC’s definition also recognises there is a public interest in the internationally recog- nised civil and political rights, which include freedom of expression.
A hypothetical illustration of an unintended and potentially harmful effect of the Revised Guidelines’ approach to the ‘public interest’ concept may assist. Say a person resigns from public office suddenly and cites only ‘personal reasons’. Say the actual reason is that the per- son is in a relationship but the couple have been unable to conceive, and that this is the reason for resignation. To report this information may answer a question about the person’s resigna- tion from public office, but it may be a breach of the privacy of both partners which is not jus- tified in the public interest. In this hypothetical, citing ‘personal reasons’ only does not provide the precise and intimate reason, but nor does it significantly mislead people in rela- tion to a matter of public importance.