Media
The Privacy Act does not apply to personal information collected, used or disclosed by a media organisation when: it is acting in the course of journalism; and it is publicly committed to observing published standards that deal with privacy in the context of media activities.
- Why are media organisations exempt?
- What are the limits of the exemption?
- What about a journalist's right to protect the source of information?
- What is a media organisation?
- In the course of journalism
- Media organisation must be committed to certain standards
Why are media organisations exempt?
The media has a unique and important role in keeping the public informed of news and current affairs. A balance must be struck between the public interest in allowing a free flow of information through the media and, on the other hand, individuals' right to privacy. The Act aims to address these concerns by:
- providing an exemption for media organisations; and
- including a number of provisions in the Act which recognise the role of the media in facilitating the free flow of information. For example, the Privacy Commissioner and any approved privacy code adjudicator will be required to take into account the public interest in the free flow of information when considering complaints.
What are the limits of the exemption?
Any activities not carried out for the purpose of reporting news events, providing information, or reporting news or current affairs are covered by the new regime. For example, a media organisation is subject to the same strict obligations that apply to any other private sector organisation in relation to direct marketing activities. So the media organisation is bound by the National Privacy Principles or an approved code in these areas.
So where should you start? Our general checklist should help.
A media organisation has two levels of privacy compliance:
- in relation to activities undertaken 'in the course of journalism' - must commit to published privacy standards that deal in some way with privacy in the context of media organisations; and
- in relation to all other activities - must commit to the NPPs or a code.
What about a journalist's right to protect the source of information?
A journalist is not required to give information, answer a question or produce a document or record under the provisions of the Act where this may reveal the identity of a confidential source. This is consistent with the Journalists' Code of Ethics which requires journalists to respect all confidences received in the course of journalism.
What is a media organisation?
A media organisation is an organisation which collects the following material to make available to the public:
- material having the character of news, current affairs, information or a documentary; or
- material consisting of commentary or opinion on, or analysis of, news, current affairs, information or a documentary.
A media organisation is an organisation that is engaged in or whose activities include journalism. For example, an organisation that is primarily engaged in promoting and protecting the environment may still be a media organisation if it disseminates news and other information to Australian public.
An organisation can only claim the media exemption if it makes its material or information 'available to the public'. This requirement introduces a public interest element to the exemption, and recognises the Government's view that an individual's right to privacy needs to be balanced against the public interest in the free flow of information.
In the course of journalism
The term journalism is intended to have its ordinary meaning. Courts have referred to journalism as the process of "collecting and disseminating information to the public". This encompasses the activities of:
- gathering;
- transmitting;
- disseminating; and
- commenting on
news and information.
The definition of journalism is technology neutral, so it will include all modes of communication such as print, radio, television and electronic means of communication.
Media organisation must be committed to certain standards
Before a media organisation can take advantage of the exemption, it must demonstrate its commitment published written standards dealing with privacy in the context of media activities. For example, it may be a member of a media industry body and be required to subscribe to a code developed and published by the industry body.
The standards in this sort of code do not have to be as high as those of the NPPs, otherwise the purpose of the exemption itself would be completely undermined.
A media organisation does not need to subscribe to an approved privacy code in order to benefit from the exemption in relation to journalism. All it must do is illustrate that it complies with some sort of published code of practice or written privacy standards that regulate the way in which the media organisation deals with personal information of individuals. In relation to all its other activities, a media organisation must meet the NPPs.
