Networks face tougher Privacy rules

Broadcasters will face stricter rules on invading the privacy of individuals, including politicians and public figures, under new guidelines put in place by the media watchdog.

The Australian Communications and Media Authority’s new Privacy Guidelines include whether or not a person is in a public place.

The new ‘Seclusion’ rule states that:

A person’s Seclusion may be intruded upon where:
-he or she would have a reasonable expectation that his or her 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 must be more than fleeting. It is possible for this to occur in a public space.

It also states:

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.

The guidelines also deal with consent, children, material in the public domain and public interest.

“The aim is to further increase awareness of code privacy obligations developed by industry in broadcasting codes of practice and to assist broadcasters to better understand these obligations,” said ACMA Chairman, Chris Chapman.

The new rules follow high-profile invasions of Privacy that have come before ACMA, including Seven News filming NSW politician David Campbell leaving a Sex on Premises Venue -of which it was later cleared by ACMA- and TEN Network filming a man sobbing over the death of his parents following a boating accident.

ACMA received 15 responses to its Privacy Review, including from Free TV Australia, ASTRA, ABC, SBS, Australian Privacy Commissioner, Victorian Privacy Commissioner and NSW Privacy Commissioner.

The Dept of Immigration and Citizenship submitted that “We see evidence on an almost daily basis of the lack of respect and regard all news outlets are displaying in relation to the privacy of asylum seekers arriving in Australia by boat, and client detainees in immigration detention.

“We have approached news directors, producers, chiefs of staff and individual news gatherers about these ongoing concerns through a range of channels including phone calls, meetings, emails, media alerts and letters, to no avail.”

SBS said it didn’t consider that a parent or guardian’s consent must always be expressly obtained before using material that relates to a child’s (a person aged 16 years or under) privacy.

“In some circumstances consent from the child should be sufficient,” it submitted.

“SBS programs such as Insight forums may include interviews and discussions with individuals under the age of 16 during which they will often elect to disclose private information. In many cases it may not be practical or possible to seek and obtain parental or guardian permission. Where such information is volunteered, SBS will assess whether the information should be broadcast, taking into account the SBS ‘Privacy’ code of practice, and other relevant considerations, including legal restrictions.”

In its submission the Seven Network offered up a number of hypothetical situations and the difficulties in interpretation of the Code. Below are several of those hypotheticals along with the challenges Seven believes arise from them:

Hypothetical 2: A film crew covertly videos ‘rent-boys’ offering prostitution services along the notorious Darlinghurst wall and discover it has images of a prominent judge stopping and picking up one of the young men. The youth is 18, but street soliciting is still supposedly illegal here because it is within sight of a dwelling and St Vincent’s Hospital [2]. The youth is also a desperate drug addict, raising legitimate public interest concerns about the exploitation of the vulnerable by someone who should know better.

“The judge would or should know that it is an offence to solicit for prostitution in such an area and that he is committing an offence by seeking sex in this area [3]. Does the public interest in exposing the criminality of both parties outweigh their privacy? Our concern is that some people believe that activities like this, although illegal, should not be broadcast because they offend the sensibilities of a social/cultural minority who believe it is no-one else’s business.”

Hypothetical 3: As part of a TV story on how AIDS is increasingly a risk in heterosexual relationships, a TV crew film from the roof of a building, to show how many of the car drivers looking for sex with street prostitutes have baby seats in the back. We interview the prostitutes who say they have agreed to have unprotected sex for extra payment. The area where they are street soliciting is legal under NSW law.

“Although the drivers’ faces and car numberplates are not shown, one of the drivers is identified by their wife who recognises the vehicle and sees her distinctive coat on the back window ledge of the car. Is the man’s privacy breached in this instance? Is the public interest in raising awareness of the false perception that HIV and other STDs are a gay disease sufficient to overcome any privacy breach in this instance?”

Hypothetical 4: A prominent NRL player walks out of the Coogee Bay Hotel and exchanges abusive words with a bouncer. While, standing on the street he abuses two young women who reject his drunken advances and he then urinates beside a car. His exchanges and actions are filmed by a passer-by and then offered to a TV network for broadcast. Does the player have a reasonable expectation that his activities would be observed and that ‘a person of ordinary sensibilities’ would not consider the broadcast of these activities to be ‘inappropriate or offensive’?

“A large number of people, including alarming numbers of women, don’t accept that the media has the right to raise concerns about the misbehaviour of NRL players off the field. As Four Corners found, when they ran the allegations of ‘Clare’, who alleged she was sexually assaulted by Matthew Johns in the presence of numerous NRL players in a NZ hotel, the overwhelming flood of complaints about the program were about Clare’s motives. This forced the ABC to mount a detailed defence of their motives in telling the ‘Code of Silence’ story. [see: http://blogs.abc.net.au/files/four-corners—the-code-of-silence–statement-19.5.09.doc ]”