Major Australian privacy law reforms, Edward
Snowden's expose of international surveillance, reports of
neighbours using drones to spy on one another and the explosion of
social media have understandably made many nervous about privacy
So the Australian Law Reform Commission's Serious
Invasions of Privacy public discussion paper, released on
March 31, is timely indeed.
To date the focus has been on the ALRC's proposed new
tort of privacy. But the ALRC's paper also suggests
boosting the media regulator's existing powers by introducing
compensation for individuals whose privacy is seriously invaded by
a broadcaster. Such a move would burden broadcasters with
unnecessary regulation and reinforce the lack of regulatory parity
between traditional and new media.
MEDIA REGULATOR - NEW POWERS
The discussion paper proposes giving the media regulator, the
Australian Communications and Media Authority
(ACMA) powers similar to those of the Australian
The ACMA would be able to award compensation to individuals for
loss or damages caused by a serious invasion of privacy by a
broadcaster. This would involve a process of declaration and
Federal Court enforcement similar to the Privacy Act regime.
The paper argues that individuals are currently unable to seek
compensation or other forms of redress under the Privacy Act (due
to the media exemption), the Broadcasting Services Act or the
broadcasters' codes of practice. The paper says:
"Strengthening the ACMA's powers would deter serious
invasions of privacy by broadcasters and provide individuals with
an alternative to costly litigation".
But this argument seems flawed.
There are already privacy-related obligations in the mandatory
industry codes of practice for television and radio broadcasters.
These are supported by ACMA's comprehensive "Privacy
Guidelines for Broadcasters". The codes state that news and
current affairs programs must not use material that relates to, or
invades the privacy of, a person's private or personal affairs
unless the material is identifiably in the public interest.
The discussion paper itself admits that complaints by
individuals who accuse broadcasters of breaching their privacy are
rarely upheld, as shown in ACMA's annual review.
Likewise, in its submission to the ALRC in response to the
issues paper that preceded the discussion paper, the Australian
Subscription Television and Radio Association
(ASTRA) stated that it has not found any
subscription television broadcasters in breach of the ASTRA privacy
codes of practice.
It is hard to see what problem is being addressed by the
proposed new regulation.
IN SEARCH OF CONVERGENCE REVIEW RECOMMENDATIONS
The proposed boost in ACMA's powers is not part of a
cohesive regulatory reform package or even a "refreshed"
media policy framework suited to the converged environment
investigated by the 2012 Convergence Review.
The Convergence Review highlighted significant regulatory
challenges faced by the Australian media and proposed a policy
framework based on technology neutral principles. The Review
recommended extending some traditional broadcaster regulation to
other 'content service enterprises', with a view to
levelling the playing field for the media industry.
The proposed ACMA compensation regime goes in the opposite
direction: it reinforces the divide between traditional and social
media with additional, unnecessary regulatory burdens and industry
restrictions. In most cases the longstanding co-regulatory and
self-regulatory model for Australian radio and television
broadcasters has successfully balanced the privacy of individuals
with the news and current affairs role in disseminating
information. Extended AMCA powers could undermine this model.
In the digital era, there are arguably bigger "privacy
fish" to fry than an already well-regulated industry has a
proven track record of respecting individuals' rights to
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Those types of personal disclosure may still be permitted under the Privacy Act as long as your house is in order.
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