Submission on the review of the Commercial Television Industry Code of Practice

15 April 2015

Ms Julie Flynn
Chief Executive Officer
Free TV Australia

By email: Code2015@freetv.com.au

Dear Ms Flynn

Submission on the review of the Commercial Television Industry Code of Practice

Thank you for the opportunity to provide comment on the proposed amendments to the Commercial Television Industry Code of Practice (Code). My comments are annexed to this letter.

I note that the Code has been simplified and streamlined. It is shorter and its provisions are clearer compared to the current Commercial Television Industry Code of Practice (the 2010 Code). However, I am concerned that the privacy protections in the Code appear to have been lessened as a result of these changes.

Section 7B(4) of the Privacy Act 1988 (Privacy Act) exempts activities carried out ‘in the course of journalism’ from the Act’s coverage. However, if a media organisation seeks to rely on the exemption it must be able to show that, at the relevant time, it was committed to standards that deal with privacy. I have made a number of recommendations for your consideration to enhance the privacy protections in the Code. In summary, I recommend that:

  1. Individuals who believe their privacy has been interfered with by a broadcaster should have standing to complain.

  2. Privacy protections should, in some circumstances, be retained even where information is publicly available.

  3. The additional privacy protections afforded to children in the 2010 Commercial Television Industry Code of Practice (2010 Code) be retained.

If you have any questions, please contact Ms Natacha Doust, Advisor on [contact details redacted].

Yours sincerely

Timothy Pilgrim
Australian Privacy Commissioner

15 April 2015

Annexure – OAIC comments on the Code

The Privacy Act 1988 (Cth) and the journalism exemption

The Privacy Act regulates how Australian government agencies and many private sector businesses handle personal information: that is, information or an opinion about an identified individual, or an individual who is reasonably identifiable.[1]

Those entities must comply with the 13 Australian Privacy Principles in Schedule 1 of the Act, which address matters including the use and disclosure of personal information (APP 6), the accuracy of personal information (APP 10), and correction of personal information (APP 13).

The objectives of the Privacy Act include promoting the protection of the privacy of individuals and promoting the responsible and transparent handling of personal information by entities.

Many of the activities of Free TV Australia’s members conducted under the guidance of the Code will fall within the exemption in s 7B(4) of the Privacy Act. This provision exempts acts or practices of media organisations occurring in the course of journalism from the operation of the Privacy Act, but only applies to organisations publicly committed to observing standards that deal with privacy in the context of their activities, and that publish those standards in writing.

This exemption seeks to balance the public interest in providing adequate safeguards for the handling of personal information and the public interest in allowing a free flow of information to the public through the media.[2]

The Code sets out and enforces the privacy standards that apply to commercial television broadcasting services operated by a licensee, in the absence of Privacy Act regulation. While the Privacy Act does not apply to the journalistic activities of Free TV members, it is reflective of the privacy expectations of the Australian community, and as such it is desirable that the code be generally consistent with the objects of the Privacy Act.

Code complaints process

Clause 7.2.3 of the Code requires a complainant to have seen the broadcast that is the subject of a complaint before they can bring a complaint concerning the broadcast. This is not a requirement under the 2010 Code.

I am concerned about the restriction that this new requirement may impose on an individual’s standing to bring a complaint regarding the code provisions relating to accuracy and privacy: that is, complaints relating to parts 3.3 and 3.4 of the Code. In particular, where the complaint relates to the accuracy of the individual’s personal information that appeared in the broadcast, or where the individual’s privacy was intruded upon. In these circumstances, the privacy impact on the individual is generally attributed to other people viewing the broadcast. Whether the individual also viewed the broadcast is less relevant.

Under the Privacy Act, an individual’s standing to bring a complaint relies solely on whether the act or practice complained about may be an interference with their privacy. In my view this is a common sense approach that ensures that the individual has recourse whenever their privacy has been intruded upon. This should be reflected in the Code.

I therefore recommend that the Code allow an individual to bring a complaint relating to the accuracy of their personal information or their privacy regardless of whether or not they have viewed the broadcast.

Material available in a public place

Clause 3.4.1 of the Code provides that in broadcasting a news or current affairs Program, a licensee must not broadcast material relating to a person’s personal or private affairs unless:

  1. there is a public interest reason for the material to be broadcast; or

  2. the person has provided implicit or explicit consent for the material to be broadcast (or in the case of a person under 16, a parent or guardian has given implicit or explicit consent).

Clause 3.4.2 of the Code exempts from this provision material that is publicly available or recorded in a public place. The explanatory notes to the Code state that, for example, information that is available on a social media site with no privacy controls in place should not be considered private.

I acknowledge that whether or not information is publicly available or recorded in a public place is relevant when considering whether the broadcast of that information would be in the public interest. However, in my view it is not desirable to have a blanket exception to the Code’s privacy protections for such material. For example, further consideration of whether the public interest outweighs the privacy impact on the individual would be needed in the following examples:

  • A clearly identifiable woman is filmed in a public place, leaving an abortion clinic. The woman is visibly distressed and objects to being filmed.

  • A third party posts nude pictures of an individual online without the individual’s consent.

  • A blog that does not subscribe to any ethical codes publishes private health information about a person without consent.

As such, I recommend that clause 3.4.2 be recast as a factor to consider in determining whether the broadcast is in the public interest. This would achieve the objective stated in the explanatory notes to the Code that material recorded in public is ‘presumed’ to not be private, but would still allow the privacy protections in the Code to be afforded to material that is publicly available or recorded in a public place in limited circumstances.

Privacy and children

The OAIC is supportive of initiatives aimed at safeguarding the privacy of children. Children are particularly vulnerable due to their limited capacity to make decisions about their own information and their reliance on others to ensure that their interests and rights are protected. The potential consequences on a child or young person of a breach of their privacy rights at this developmental stage of their lives include the risk of trauma, embarrassment or stigmatisation.

The privacy provision at 4.3.5 of the 2010 Code (which is similar to that at 3.4.1 of the Code discussed above) included a provision at clause 4.3.5.2 that provides additional safeguards for children. That provision provided that:

licensees must exercise special care before using material relating to a child’s personal or private affairs in the broadcast of a report of a sensitive matter concerning the child. The consent of a parent or guardian should be obtained before naming or visually identifying a child in a report on a criminal matter involving a child or a member of a child’s immediate family, or a report which discloses sensitive information concerning the health or welfare of a child, unless there are exceptional circumstances or an identifiable public interest reason not to do so.

In this respect, the Australian Communications and Media Authority’s Privacy guidelines for broadcasters[3] refers to a case study where a breach of a 12 year old boy’s privacy was considered to have occurred in circumstances where special care was not used to mask the child’s identity. This finding was made despite there being an identifiable public interest in disclosing material relating to truancy, which was the subject of the broadcast material aired.

I am concerned that the removal of this provision in the Code may result in diminished privacy protections for children. I therefore recommend that the Code be amended to re-instate clause 4.3.5.2 of the 2010 Code, or an equivalent provision.

Use of defined terms in the Code

The Privacy Act protects ‘personal information’, which is information about an identified individual, or an individual who is reasonably identifiable (see s 6(1) of the Privacy Act).

I note that the Code uses multiple expressions in relation to personal privacy, including ‘material relating to a person’s personal or private affairs’ (at 3.4.1) and ‘private information’ (at 3.4.2). In addition, the Code does not define these terms in the Interpretation section, although there is some discussion of the meaning of ‘private information’ in the Explanatory Notes.

For the purposes of clarity and consistency, I recommend that the Code adopt the use of a single term consistently, and define it. Consideration should be given to using a term and definition that is consistent with the term ‘personal information’ in the Privacy Act.

Footnotes

[1] See s 6 of the Privacy Act

[2] Revised Explanatory Memorandum, Privacy Amendment (Private Sector) Bill 2000 (Cth), 86.

[3] Privacy guidelines for broadcasters, Australian Communications and Media Authority

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