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Roger Clarke's 'Time for 'Privacy and the Media' Guidelines'

It's Time for Guidelines on 'Privacy and the Media'

Version of 13 May 2009

Published in Online Opinion, 18 May 2008

Roger Clarke **

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This document is at http://www.anu.edu.au/people/Roger.Clarke/DV/PM-0905.html


More content is now produced by the public than by media corporations. This has many implications. This opinion piece investigates one of them.

Prosumer Content

The prosumer notion dates from 1970 or 1980 depending on your preferences. It involves consumers becoming more proactive in one of several ways. One interpretation is that it conjoins 'producer' and 'consumer', i.e. consumers become producers as well. It probably doesn't apply to activities that need capital and scale (e.g. blast furnaces). On the other hand, traditional areas of activity such as arts and crafts and do-it-yourself are booming, and localised renewable energy production has shown signs of progress. But the real area in which prosumer behaviour has been explosive is digital content.

Everyone over the age of 30 has been challenged by the the abrupt lurch from mass broadcasting to interactive communications that was unleashed by the arrival of Internet services starting in the early-to-mid 1990s. The Silent Generation (b. 1919-45, and over 60 in 2009), the Baby Boomers (b. 1946-1964, and now in or near their 50s), and early Generation X'ers (b. 1965 to about 1978, and in their 30s and 40s) all grew up in the era of mass media. People born since about 1980, on the other hand, have very different world-views.

Generation Y has grown up with widely-available, reliable and affordable interactive multimedia communications, initially on mobile phones and the Internet, and increasingly on the two combined. Since about 2000, the mainstream media have moved beyond interactivity into contexts in which the services are 'always-on' and highly immersive, and individuals try to be 'always-on' as well.

The digital tools and the bandwidth availability have enabled Gen-Ys to be not only avid consumers of digital content and services but also producers. The forms of the content that they produce are not limited to text, but include voice, music, image, video and animations. Their mode of activity is rapid, participative, egalitarian, and appropriative. When they discover that their activities breach copyright law, they are surprised, but they are mostly not greatly concerned about it. Whatever the next generation of 'Millennials' will come to be called, they will have even stronger expectations that 'rip, mix, mash' is 'what you do'.

Among the many changes that result from prosumer content is that the longstanding for-profit and government content providers no longer have the field to themselves. Unless a major counter-reformation occurs and the natural openness of inter-networked communications is closed back down, the 'official media' will have to find ways to co-exist with and accommodate the 'unofficial media'.

Prosumer Content Quality

The flood of 'newbies' is creating content, variously in the entertainment field, as open social calendars, as open social diaries, as social and political commentary, and even as news. In doing so, they're naturally committing the kinds of mistakes that all enthusiastic amateur newcomers make.

Among the various new forms of publishing outlet such as blogs and wikis, social networking services have probably generated the greatest level of concern. Issues have arisen variously because of the behaviour of service-providers, of people posting on the sites, and of people using the contents of the postings in ways the originators hadn't intended. One key problem that posters are having to learn about is the risk of self-exposure of their own profile data, contact-points, movements and behaviour. A much bigger issue is the risks to people generally of having such information about them exposed by others, and hence the responsibilities that posters need to recognise in relation to information about other people.

A variety of organisations have found it necessary to provide guidance to their employees about the use of social networking services. It has become a concern to corporations and government agencies because of the ease with which embarrassment can arise, and the potential for negative consequences for reputation and brand-value. IBM was an early mover in 2005. There was a surprising delay until the BBC published guidance in March 2008, and the Australian Public Service Commission in December 2008. But they were not as late as Telstra, which fumbled quite memorably in the 'Fake Stephen Conroy' furore of early 2009 and then rushed out a '3 Rs of Social Media' policy on 15 April.

Those were corporate responses. In the public sphere, information has been offered by associations focussed on family values and child protection, and by various government agencies, including the U.K. Information Commissioner's Office and the Office of the Australian Privacy Commissioner. A small set of principles was suggested in an Online Opinion piece in May 2008.

Regulation

The question arises as to whether posters on social networking sites are subject to much in the way of legal constraints. If not, should they be? If so, is the law clear, measured and effective? And, if it isn't, what should be done about it?

Even in relatively free countries, publishers generally are subject to a wide array of regulatory constraints. The censorship regime in Australia is far more permissive currently than it was as late as the 1960s, and the continual efforts by the moral minority to impose tighter regulation meet strenuous resistance, as is occurring with Minister Conroy's attempts to filter Web content.

Conroy's 'Clean Feed' project is an attempt to do something that has been to date unusual in the Australian context. It seeks to impose regulation through changes to infrastructure rather than the law (what Larry Lessig called in the U.S. context 'West Coast code' - or software - rather than 'East Coast code' - or law). Most of the constraints on publishers in Australia are legal in nature. An indication of the scope of the constraints is provided by the table below.

Legal Constraints on Publishers

Many of these laws are quite vague in their expression, and their application to any particular circumstance can only be determined by court action. In 'official media' organisations, a great deal is known about them. Protections have been institutionalised, through business processes that review draft content for possible breaches prior to publication. Prosumers are (with some exceptions) subject to these laws, but most 'unofficial media' contributors have yet to grasp their significance.

Privacy Regulation

Among the constraints on publishers, privacy remains something of a Cinderella, waiting for its big moment. There is a distinct lack of laws, because the media is exempt from the private sector provisions of the Privacy Act (subject to the weak proviso that "the organisation is publicly committed to observe [published] standards that deal with privacy ..."). But times are changing. The U.K. courts have been, ever-so-slowly, developing a privacy tort, and Australian courts have shown signs of preparedness to create one if the legislature continues to fail to do so.

The media industry and the media professions had the opportunity to establish self-regulatory schemes, and most did so. But they fell a long way short of public expectations. For example, the Media Alliance Code provides brief guidance in relation to gathering information, but none about publication. The Australian Press Council's Privacy Standards are highly permissive, particularly in relation to disclosure of personal data. And the Australian Communications and Media Authority (ACMA) administers a register of Codes of Broadcasting Practice that, in at least their privacy segment, are vacuous and unenforceable. For example, even that of the ABC says (in total) "The rights to privacy of individuals should be respected in all ABC content. However, in order to provide information which relates to a person's performance of public duties or about other matters of public interest, intrusions upon privacy may, in some circumstances, be justified".

In response to the abject failure of the self-regulatory movement to satisfy the public need, the Australian Law Reform Commission (ALRC) recommended in late 2008 that "The Privacy Act should be amended to provide that media privacy standards must deal adequately with privacy in the context of the activities of a media organisation", and that consultative processes should lead to "a template for media privacy standards that may be adopted by media organisations".

Further, the ALRC recommended that "Federal legislation should provide for a statutory cause of action for a serious invasion of privacy ... restricted to intentional or reckless acts". Irresponsible media commentators have knee-jerked against this recommendation, and misrepresented its scope. It will be a valuable adjunct to the properly articulated 'media privacy standards' that the ALRC has called for; but it will only ever be applicable in cases of quite serious and distinctly unreasonable breaches.

The Australian Privacy Foundation's Policy Statement

The Australian Privacy Foundation (APF), formed in 1987, is the primary association dedicated to protecting the privacy rights of Australians. It is an active supporter of freedom of the press and freedom of speech, not only because of their intrinsic importance, but also because gaining and sustaining privacy rights is dependent on them.

The APF policy statement on 'privacy and the media' calls for the articulation of the vague privacy principles in current Codes into meaningful guidance. That will enable professional journalists to make decisions about what personal data is and is not relevant to their articles. It will also enable oversight bodies to exercise judgement on complaints, and impose sanctions where they are appropriate. The intention is emphatically not to straitjacket the media, but to lay out the rules of the game for all to see.

Beyond merely calling for action, the APF has formulated quite specific proposals in relation to the Framework and the Guidelines that it believes are needed. The intention is to provide a balanced set of protections for the public and freedoms for the media. A topical example of a Guideline (published before the current swine flu 'pandemic') is "The justification for the collection or publication of personal data [may] be based on ... Relevance to Public Health and Safety. For example, disclosure of a person's identity may be justified if they are a traveller who recently entered Australia and they are reasonably believed to have been exposed to a serious contagious disease".

Next Steps

The APF has invited media industry associations (through the Australia's Right To Know Coalition) and the media professional association, Media Entertainment & Arts Alliance (MEAA), to consider the APF's Framework and Guidelines as a basis for expanding their Codes.

The 'official media' have a strong motivation to invest in their image. They need to differentiate their product, and to explain to the paying public why their content costs money (whether paid directly or through advertising) and cannot be open and gratis like the output of the burgeoning 'unofficial media'. Quality differences are the key, and a disciplined and principled approach to privacy is one of those quality differences.

Privacy and the Prosumer

The APF has a further motivation in encouraging the 'official media' to upgrade their Codes. The 'unofficial media' will be an ongoing source of privacy harm. As with all new technologies, institutional controls will emerge as societies gain experience. At some stage, it appears likely that some changes to laws will be appropriate. But insufficient experience has been gained to date, and any attempt to draft legislation now would be premature. In any case, reasonable public behaviour will depend a great deal more on conventions and informal sources of socialisation than on formal laws.

The existence of a consolidated set of professional Guidelines on Privacy and the Media would represent an enormously valuable contribution to the socialisation of prosumer publishers.

Moreover, it is in the best interests of media corporations and media professionals alike to establish clear guidance about where the boundaries lie. On that basis, the 'official media' can then reasonably call for the 'unofficial media' to be subject to similar constraints.

The Australian Privacy Foundation has played its part by putting forward its proposals for a Framework and Guidelines. Privacy advocates are now urging industry and professional associations to upgrade their Codes, in order to provide much clearer guidance on the publication of personal data.


Acknowledgements

The author acknowledges the considerable contributions of fellow members of the Board of the Australian Privacy Foundation to the analysis supporting this opinion-piece, and in particular the experience of Nigel Waters and his submissions to the ALRC. Except where otherwise indicated, however, the opinions expressed here are those of this author, not the APF.


Author Affiliations

Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He has been a Board member of the Australian Privacy Foundation since its inception in 1987, and is currently its Chair. He is also a Visiting Professor in the Cyberspace Law & Policy Centre at the University of N.S.W., a Visiting Professor in the E-Commerce Programme at the University of Hong Kong, and a Visiting Professor in the Department of Computer Science at the Australian National University.



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