Australia: Serious invasions of privacy by the media: ALRC calls for increased media regulator powers

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 protection.

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 Privacy Commissioner.

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 privacy.

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