- Would you like your medical information disseminated via a national media broadcast.
- Do you believe that restriction of such information is appropriate?
- Is there a fundamental public interest - as distinct from public curiosity (not the same thing) - in unauthorised disclosure of your information or that of a celebrity?
Broadcasting of conversations that the nurses would have reasonably assumed were private, for example because there apparently wasn't identification that the presenters were pretending to be members of the patient's family, should raise concerns under Australian and UK law.
In the UK the activity echoes instances of blagging, addressable under s 55 of the Data Protection Act 1988. That Act includes the 'investigative journalism' defence that the offenders under s 55 acted "with a view to the publication by any person of any journalistic, literary or artistic material" (s 32) and in the reasonable belief "that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest" (s 55). Under s 68 of the Act 'health record' means any record that "(a) consists of information relating to the physical or mental health or condition of an individual, and (b) has been made by or on behalf of a health professional in connection with the care of that individual". 'Health professional' (s 69) includes "a registered medical practitioner" and "a registered nurse or midwife".
The statute centres on recorded - in particular electronic - personal information. Putting aside questions about whether the hospital comes under coverage of the Act as a 'data controller' we might speculate that the nurse/s provided information from their personal knowledge rather than from a record, so that they were not in breach of the Act.
Was there negligence by the presenters, in line with Wilkinson v Downton [1897] 2 QB 57? It was conceivable that the nurses would be reproved once the blagging was discovered, but a suicide?
The hospital conceivably failed in its duty - a statutory duty if it is a data controller - with responsibility for example to train and supervise staff and contractors. Posts in this blog have for example noted penalties imposed by the UK Information Commissioner's office on the Aneurin Bevan Health Board and St George’s Healthcare NHS Trust.
In Australia such a broadcast would breach the Surveillance Devices Act 2007 (NSW), specifically the prohibition in s 11 on unauthorised people publishing a private conversation obtained using a "listening device", ie a device that can "overhear, record, monitor or listen" to a conversation. What's the status when recording was undertaken within Australia of a call that involves people in the UK?
Given the permissive stance of the Australian Communications and Media Authority (ACMA) in dealing with misbehaviour by commercial broadcasters and the weakness of self-regulation under the Commercial Radio Codes of Practice we probably shouldn't expect much action from ACMA or 2DayFM's management unless there's an ongoing moral panic. (Given the corporate response to criticism of Alan Jones we might indeed expect the management to claim that the station and the presenters have been grossly victimised.)
The call apparently did not breach the specific privacy provisions in the industry codes because those provisions are restricted to news and current affairs programs, not entertainment.
Code of Practice 6 regarding Interviews and Talkback Programs specifies that a licensee must not broadcast the words of an identifiable person unless:
a) That person has been informed in advance or a reasonable person would be aware that the words may be broadcast
b) In the case of words which have been recorded without the knowledge of that person, that person has subsequently, but prior to the broadcast, expressed consent to the broadcast of their words.The UK nurses do not appear to have given consent after the recording had occurred but prior to the broadcast.
