Privacy provisions are already reflected in broadcasting industry codes of practice which appear on the ACMA website and are specific to privacy.
Codes of practice relating to television (eg Commercial Television Industry Code of Practice 2011), radio and community broadcasting sectors are framed by broadcasters and then registered by the ACMA under s123 of the Broadcasting Services Act 1992 (Cth).
When code privacy obligations are breached an individual can elect to make a privacy complaint to the relevant broadcaster and seek a response. If a complainant is dissatisfied with the Broadcaster’s response, they have the option of bringing the matter to the ACMA’s attention for investigation to seek an official outcome. The ACMA will then make an assessment of any privacy issues presented to them.
The privacy related code provisions found within the various Broadcasting Codes of Practice are generally representative of accepted principles of case law. The privacy protections afforded by the various Codes vary according to the type of content broadcast. (The Commercial Radio Codes of Practice)
In summary, the Codes of Practice aim to prevent the broadcasting of content pertaining to a person’s personal or private affairs, for instance, by divulging personal information or violating a person’s privacy by intruding upon their seclusion.
A person’s seclusion is susceptible to possible intrusion under circumstances where they would have a reasonable expectation that their activities wouldn’t be observed or overheard by others, and a reasonable person of normal sensibilities would consider the broadcast of these activities as being highly offensive (in accordance with the judicial formulation in ABC v Lenah Game Meats 208 CLR 199) The activities in question will usually encompass sexual activity and it will be possible for activity to occur in public space and still attract privacy protection.
The Privacy Guidelines aren’t intended as an exhaustive statement of either existing privacy laws and/or other unlawful practices. The guidelines, including any minor variations, are intended to help broadcasters better understand their obligations.
Under the guidelines, in the course of deciding whether to investigate an alleged breach of a privacy related code provision the ACMA must make a decision, at the threshold level, as to whether or not the relevant broadcast attracts privacy protection, prior to pursuing any enquiry as to whether any elements necessary to constitute a breach have been made out.
These elements are as follows:
1. Whether a person, be it a private individual or public figure, was identifiable from the broadcast material. The definition of ‘personal information’ is broad ranging. Personal information can include facts regarding a person’s health, personal associations, financial affairs, sexual activities, and sexual preferences or habits, their racial or ethnic origin, religious beliefs, political opinions or membership of a political association. Information can also qualify as personal information where it relates to their membership of a professional or trade association, trade union, their criminal record or other sensitive personal matters.
Public figures are afforded a degree of privacy equivalent to english law under the guidelines, in that they don’t automatically surrender all rights to privacy in respect of private information in their personal lives which they themselves havn’t put into the public domain. The relevant information doesn’t have to be confidential for a public figure to retain some control over it’s dissemination.
2. Whether the broadcast divulged personal information or result in a violation of a person’s seclusion in more than a fleeting way
If the ACMA is satisfied that these two elements are made out an investigation will be undertaken, in the course of which the ACMA must then consider:
1. Whether the consent of the person or their parent or guardian (if a minor) was obtained. The use of material surreptitiously obtained without the person’s knowledge or consent, will be one indication the person did not, at least at the point at which the material was procured, consent to the broadcast of the material in issue. Consent to the use of such material can be elicited after recording but before broadcast, so that the person is granted the opportunity to either give or withhold consent.
Special provision is made for consent in the case of children and other vulnerable people, requiring broadcasters to use special care in respect of persons falling within this class of persons. The vulnerability may arise not only through age, but also through mental illness, literacy or a person being displayed in an extremely personal or sensitive predicament, such as one would expect to occur where a person is experiencing intense grief or distress.
2. Whether the broadcast material was available from the public domain. Information derived from social media sites on the internet will be considered public domain, except insofar as any restrictions on obtaining access to such material have been violated. However, the mere absence of any such restrictions in place to preclude persons obtaining access to the material will not be conclusive in determining whether material has entered the public domain. Consideration will be given to the nature of the content in question and the context in which it has been published.
The ACMA has previously considered complaints arising from a licensee’s broadcast of photographs which had already been published on an open Facebook tribute page, without any privacy settings to prevent third parties, including the media, from accessing the images. The ACMA has found that just because information has been made publicly available on the internet, this doesn’t necessarily mean a broadcaster isn’t still at risk of breaching code obligations should they choose to broadcast it, the reason being that not all material published on the internet will cease to be personal or private. Therefore the use of Facebook privacy settings will be an important but not determinative consideration in assessing whether the material is public or private.
The use of material in a broadcast previously disclosed by someone on a confidential basis or to a “limited or closed circle of recipients“ may still constitute an invasion of a person’s privacy. Material can be deemed to be intrinsically private by it’s very nature, even in the absence of an express request that it is to remain confidential.
3. Whether there is an identifiable public interest which may justify any invasion of privacy arising out of broadcasting material (see guidelines defining ‘public interest’, which draw partly upon High Court precedent and law reform enquiry recommendations)
The Privacy Guidelines For Broadcasters 2011 are intended to provide further guidance for broadcasters on how existing broadcasting codes operate to protect the privacy of Australians, irrespective of whether persons are captured in a public or private place.
The guidelines incorporate useful case studies to illustrate how the principles relating to consent, public interest, public figures and public domain material may operate in practice, by reference to past broadcasting privacy complaints investigated by the ACMA.
This represents the first occasion upon which the guidelines have been reviewed since their implementation in 2005. Minor modifications have been made to the guidelines to accommodate not only broadcasting privacy code provisions, but also research conducted into contemporary community attitudes to media privacy and law reform recommendations.
The ACMA guidelines are also the product of consultation with relevant stakeholders such as privacy groups and industry broadcasting organisations.