11 September 2016

Updated Broadcast Privacy Guidelines

ACMA has released an update of its Privacy guidelines for broadcasters, which "provide an overview of how ACMA assesses complaints by listeners or viewers that allege breaches of the privacy provisions" in the broadcast codes developed by industry under the self-regulatory regime.

The September 2016 update reflects
  •  amendments to codes of practice since 2011
  • new case studies of key ACMA privacy investigation decisions over the past five years 
  • references to personal information and
  • clarification of  ACMA’s approach to consent, material in the public domain, and children’s privacy.
The Guidelines were introduced in 2005 with the expectation that they would "increase general awareness of privacy obligations under the codes of practice and assist broadcasters to better understand these obligations". They were last revised in December 2011, the first comprehensive review since introduction. The review considered ACMA’s investigations from 2005 to 2011, amendments to broadcasting codes of practice, developments in case law, and qualitative and quantitative community attitudinal research commissioned by ACMA.

The 2016 review elicited a mere seven submissions, from the ABC, ASTRA, CRA, Derek Wilding, Free TV, OAIC and SBS (ie 5 out of seven were from broadcasters).

The guidelines state
Introduction—balancing privacy and public interest
Privacy protections specific to broadcasting are set out in the various broadcasting codes of practice that are developed by industry and registered by (or, in the case of the national broadcasting codes, notified to) the ACMA.
These guidelines are intended to: > increase general awareness of the privacy obligations under the various broadcasting codes > assist broadcasters to better understand their privacy obligations under these codes.
The guidelines do not deal with unlawful, unethical or distasteful journalistic practices. Nor do they deal with federal or state privacy and privacy-related laws. They provide general guidance in relation to code privacy obligations and do not vary the terms of any particular broadcasting code of practice. Examples used in these guidelines are illustrative only.
Privacy is a matter of enduring relevance to the community.
While digital technologies and social media may be changing the ‘privacy environment’ and presenting challenges that legal experts have grappled with in recent times , the community continues to value privacy safeguards in broadcasting.
The various broadcasting codes of practice can be found on the ACMA website. Their privacy provisions reflect the balance that should be struck between the media’s role in informing the public and an individual’s expectation of privacy.
Some codes offer express privacy protections only in the context of news and current affairs broadcasts. Other codes offer privacy protections for all broadcast content. Some codes also provide that a complaint about privacy can only be made by the person (or a representative of the person) who considers their privacy was intruded upon.
The precise privacy obligations to which each broadcaster is subject will depend on the terms of the applicable code. The outcome of any investigation will depend on the facts and context of the particular broadcast. A potential breach of code privacy provisions may be investigated by the ACMA in the exercise of its discretion. This will generally occur when:
  • a code privacy complaint has been made to a broadcaster in accordance with the applicable code 
  • the broadcaster has not responded within 60 days or the complainant considers the broadcaster’s response inadequate 
  • a complaint is then made to the ACMA.
The general principle
Generally, the codes protect against the broadcast without consent, of material that:
  •  relates to a person’s personal or private affairs or private life —for example, by disclosing their personal information; or 
  • invades a person’s privacy or intrudes into their private life—for example, by intruding upon their seclusion; unless it is in the public interest to broadcast the material.
Investigation steps
When investigating the alleged breach of a code privacy provision, the ACMA will consider the elements of a breach:
  • 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?
If the answer to both of the above questions is yes, then there is a potential breach of code privacy provisions. The ACMA will then consider:
  • Was the person’s consent obtained—or that of a parent or guardian? 
  • Was the broadcast material available in the public domain? 
  • Was the invasion of privacy in, and proportionate to, the public interest?
If the answer to any of these is yes, then there may be no breach found. Identifiable person For the codes to be breached, a particular person must be identifiable from the broadcast. That person can be a private individual or a public figure. A person is identifiable if, from the broadcast (including audio or visual material), the person’s identity is apparent or can reasonably be ascertained. Pixelation of a person’s face will not necessarily be sufficient to de-identify that person—for example, where they are identifiable from other details in the broadcast.
For examples, refer to case studies 1, 2, 5, 7 and 8 in the Appendix.
Personal information
Personal information can include a person’s residential address or telephone number, facts about a person’s health, genetic or biometric information, information about personal relationships and domestic or family life, personal financial affairs, sexual activities, and sexual orientation or practices. It can also include information about a person’s racial or ethnic origin, political opinions, membership of a political association, religious beliefs or affiliations, philosophical beliefs, membership of a professional or trade association, membership of a trade union, criminal record and other sensitive personal matters.
This information need not be secret or confidential in order to be private.
Personal information will usually be factual in nature. However, it may include opinions based on facts or presented as if based on facts—for example, an opinion on a person’s sexuality, religion or health status, or an expert’s prognosis of a person’s health or welfare.
For examples, refer to case studies 2, 5 and 7 in the Appendix.
A person’s seclusion may be intruded upon where: > they would have a reasonable expectation that their activities would not be observed or overheard by others; and > a person of ordinary sensibilities would consider the broadcast of these activities to be highly offensive. Depending on the circumstances, this may include everyday activities and it will usually include sexual activities. The invasion should be more than fleeting. It is possible for this to occur in a public space.
For examples, refer to case studies 3, 8 and 11 in the Appendix.
If consent is obtained prior to the broadcast of private material, then the consenting person can have no expectation of privacy in relation to that material. When given,
consent should be voluntary, informed, specific, current and given by a person with legal capacity and an understanding of the use to which the material will be put.
Consent can be express, such as when obtained in writing. It can also be implied; for example, where a person is a willing participant in an interview. If the affected person’s consent to broadcast private material is obtained by deception, it is not true consent.
Consent to the broadcast of material that would invade privacy or intrude into a person’s private life may be withdrawn before it is first broadcast, if in all the circumstances it is reasonable to do so.
The use of material that has been surreptitiously obtained will be an indicator that the person has not (at least at the time the material was obtained) consented to the broadcast. Consent to the use of such material can be obtained after recording but before broadcast.
The absence of an objection will not automatically be taken to constitute consent.
Consent to an interview concerning an individual’s personal affairs or private life may not amount to consent to the use in a broadcast of additional personal information or of material intruding upon their seclusion—for example, material not disclosed in the interview that has been obtained without consent or for a different purpose.
For examples, refer to case studies 4, 5, 8 and 11 in the Appendix.
Material in the public domain
Using material that is already in the public domain will generally not be an invasion of privacy.
This may include the use of material obtained from online or social media sites where there are no access restrictions. However, the absence of access restrictions, while an important consideration, may not be determinative. Account will be taken of the nature of the material and the context in which it has been published.
The relevant content may be of a nature that indicates it has been put in the public domain without the affected person’s knowledge or consent—for example, material that is inherently offensive and appears to have been uploaded by someone other than the affected person.
Using material that has previously been disclosed by a person on a confidential basis, or to a limited or closed circle of recipients, may be an invasion of their privacy. Its private nature may be implied, even if there was no express request to keep it confidential.
For examples, refer to case studies 9 and 11 in the Appendix.
Children and people in vulnerable circumstances
Code privacy provisions apply to material used in a broadcast that concerns people in vulnerable circumstances, as well as children.
Vulnerable circumstances may be intrinsic (for example, where a person has a disability or difficulty communicating in English) or situational (for example, where a person is bereaved or has been involved in a distressing event).
The Commercial Television Industry Code of Practice 2015 expressly requires that special care be taken in the use of material concerning a child. ‘Child’ is defined in that code to mean a person under the age of 15.
Where broadcast material concerns both an adult and a child, code privacy obligations and public interest considerations may be assessed separately for the adult and the child.
Subject to the relevant code, a parent or guardian’s express consent should be obtained before using material that invades a child’s privacy. Parental consent alone will not always be sufficient for a broadcaster to comply with its code privacy obligations.
Even where consent is obtained, there may be circumstances where a person of ordinary sensibilities would consider the use of material that invades a child’s or vulnerable person’s privacy to be highly offensive.
In each case, careful account should be taken of the nature of the material proposed for use and the potential consequences of its use. Broadcasts concerning child welfare or protection may be in the public interest. Such material will require careful consideration of the justification for, and, as applicable, the extent of any intrusion into the private life of a child.
In reporting on public interest issues concerning the activities, actions or behaviour of another party, such as a child’s parents, the use of material disclosing the child’s personal information or intruding upon the child’s seclusion should be proportionate to the particular public interest issues raised in the broadcast.
For examples, refer to case studies 6, 7 and 9 in the Appendix.
Public figures
Public figures such as politicians, celebrities, prominent sports and business people and those in public office do not forfeit their right to privacy in their personal lives.
However, it is accepted that public figures will be open to a greater level of scrutiny of any matter that may affect the conduct of their public activities and duties. For an example, refer to Case study 8 in the Appendix.
Public interest
The broadcast of personal information or material that invades privacy, without consent, will not breach the codes if there is a clear and identifiable public interest in the material being broadcast. The public interest is assessed at the time of the broadcast.
Whether something is in the public interest will depend on all the circumstances, including whether a matter is capable of affecting the community at large so that the audience might be legitimately interested in or concerned about what is going on.
Public interest issues include:
  • public health > national security 
  • criminal activities 
  • corruption 
  • misleading the public 
  • serious anti-social behaviour 
  • politics 
  • government and public administration 
  • elections 
  • the conduct of corporations, businesses, trade unions and religious organisations.
Not all matters that interest the public are in the public interest.
Any material that invades a person’s privacy in the public interest should directly or indirectly contribute to the public’s capacity to assess an issue of importance to the public, and its knowledge and understanding of the overall subject. The information disclosed should be proportionate and relevant to those issues, and not include peripheral facts or be excessively prolonged, detailed or salacious.
Whether an invasion of privacy or intrusion into a person’s private life is justified in the public interest will generally depend on the public interest matters raised in the broadcast.
In the case of public figures, the broadcast of material that invades the person’s privacy may be in the public interest if it raises or answers questions about any of the following:
  • the person’s appointment to or resignation from public office 
  • e 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.
However, disclosure is unlikely to be in the public interest if it is merely distasteful, socially damaging or embarrassing.
For examples, refer to case studies 1, 3, 6, 7, 8 and 11 in the Appendix.