Roger Clarke's Web-Site

 

© Xamax Consultancy Pty Ltd,  1995-2017


Roger Clarke's 'Privacy and the Media - Codes'

Privacy and the Media
Extracts from Media Organisation Codes of Conduct

Version of 17 January 2012

Roger Clarke **

© Xamax Consultancy Pty Ltd, 2011-12

Available under an AEShareNet Free
for Education licence or a Creative Commons 'Some
Rights Reserved' licence.

This document is at http://www.rogerclarke.com/DV/PandM-Codes.html

This document is a supporting material for http://www.rogerclarke.com/DV/PandM.html


1. Introduction

This resource-document contains excerpts from existing codes issued by media organisations. It also provides brief assessments of each code against the Code Template prepared by the author.

A search was undertaken for available codes. Collections were found at MW (2009) and ACMA (2011), although many of the links on the Media Watch page were broken by December 2011- apparently reflecting feverish activity among some parts of the media during 2010-11. An apparently comprehensive list appears in VNM (2011, pp. 33-37).

Only the major codes have been included here. Among the print media, it is understood that there may be some additional codes that apply to specific News Ltd and Fairfax publications. Among the broadcast media, those omitted relate to Free TV, subscription broadcast television ('pay TV'), subscription narrowcast television ('cable TV'), subscription narrowcast radio, open narrowcast radio and TV, and community radio and TV.

In all cases, an inspection was undertaken of the entire code, and the segments of text were extracted that relate to privacy. The results of an assessment of each Code against the Code Template in a companion document are shown within each section [in square brackets and italics].

The codes from which excerpts are provided are as follows:

References

ACMA (2011) 'Broadcasting codes and schemes index', December 2011, at http://www.acma.gov.au/WEB/STANDARD/pc=IND_REG_CODES_BCAST

MW (2009) 'Resources: Australian Media Code of Practice' Media Watch, ABC TV, 23 January 2009, at http://www.abc.net.au/mediawatch/resources.htm

VNM (2011) 'Submission to the Independent Media Inquiry' ARC Linkage Grant LP0989758 'Vulnerability and the News Media' Research Project, November 2011, at http://www.dbcde.gov.au/__data/assets/pdf_file/0005/142934/ARC_Linkage_Grant_LP0989758_Vulnerability_and_the_News_Media_Research_Project.pdf


MEAA

MEAA (1996) 'Media Alliance Code of Ethics' Media Entertainment and Arts Alliance, undated but apparently of November 1996, at http://pda.alliance.org.au/code-of-ethics.html.

The Code dates to 1943. It is applicable to members of the Australian Journalists' Association, which operates as a Division of MEAA. It appears to apply whether the member is working in print, broadcast and/or networked media. As remedies, the Association has the power to censure or rebuke a member, fine them or expel them. It is not clear whether any complaints have been made, processed or remedied under this code.

The relevant clauses are:

3. Aim to attribute information to its source.  Where a source seeks anonymity, do not agree without first considering the source's motives and any alternative attributable source.  Where confidences are accepted,  respect them in all circumstances.

8. Use fair, responsible and honest means to obtain material.  Identify yourself and your employer before obtaining any interview for publication or broadcast.  Never exploit a person's vulnerability or ignorance of media practice.

[There is no control over excessive behaviour [5.6, 5.7].]

11. Respect private grief and personal privacy.  Journalists have the right to resist compulsion to intrude.

[This is highly vague and not operationalised. For example, there is no reflection of private space [5.1], nor of privacy in public spaces [5.2].]

Guidance Clause ... Only substantial advancement of the public interest or risk of substantial harm to people allows any standard to be overridden.

[The meaning of 'the public interest' is not operationalised. There is no requirement for justification [3.1.1, 3.1.2]. There is no mention of consent [3.1.3]. The Code fails to require proportionality [3.1.3].]

[Publication is not addressed [3.2, 6], because the Code relates to employees and contractors operating in their professional capacity, not to media organisations.]

[Review and redress are limited [7.3, 7.4, 7.5].]


APC

The Australian Press Council (APC) is an industry association, formed in 1976, comprising print media organisations. It sets standards and hears complaints against its members. It has been criticised as being of little benefit to the public, but rather of benefit to its members, through the creation of an image of self-regulation, thereby forestalling regulation.

The code is only relevant to Australian newspapers and magazines that are 'constituent bodies' of the Council. However, the constituent bodies comprise seven conglomerates and two industry associations that together own or represent a large percentage of the nation's print publications, and that are responsible for a very large proportion of print journalism and a substantial proportion of print voyeurnalism.

APC (2011a) 'General Statement of Principles', Australian Press Council, Date of Origin unclear, no prior versions visible on the organisation's web-site, current version dated August 2011, at http://www.presscouncil.org.au/general-principles/

The relevant clauses of the General Statement are:

News and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy is not to be interpreted as preventing publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports should be identified as such.

General Principle 5: Honest and fair investigation; preservation of confidences

Information obtained by dishonest or unfair means, or the publication of which would involve a breach of confidence, should not be published unless there is an over-riding public interest.

[The expression has the effect that dishonesty and unfair means are approved by the Code thereby failing [5.3]. Publication of information obtained by dishonesty and unfair means is approved, provided that there is an "over-riding public interest".]

For the purposes of these principles, "public interest" is defined as involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others.

[This extends 'the public interest' into the realms of 'what the public is interested in'. That serves the interests of media organisations not the public, and reflects the origins of the code. The wording is drawn from a UK judgement that is of limited relevance to privacy.]

APC (2011b) 'Statement of Privacy Principles', Australian Press Council, Date of Origin unclear, no prior versions visible, current version dated August 2011, at http://www.presscouncil.org.au/privacy-principles/
General Principle 4: Respect for privacy and sensibilities

The relevant clauses of the Principles are:

Privacy Principle 1: Collection of personal information

In gathering news, journalists should seek personal information only in the public interest. In doing so, journalists should not unduly intrude on the privacy of individuals and should show respect for the dignity and sensitivity of people encountered in the course of gathering news.

[Because of the restriction to "seek", this fails to impose limitations on the "gathering' of personal information [3.1.1].]

In accordance with Principle 5 of the Council's Statement of Principles, news obtained by unfair or dishonest means should not be published unless there is an overriding public interest. Generally, journalists should identify themselves as such. However, journalists and photographers may at times need to operate surreptitiously to expose crime, significantly anti-social conduct, public deception or some other matter in the public interest.

Public figures necessarily sacrifice their right to privacy, where public scrutiny is in the public interest. However, public figures do not forfeit their right to privacy altogether. Intrusion into their right to privacy must be related to their public duties or activities.

[The use of "related to" is far weaker than the conventional standard of "relevant to" [3.2.3].]

[The Principle fails to create a larger number of essential controls specified in [3.1.1, 3.1.2 and 3.1.3], and in [5.1, 5.2, 5.3, 5.6 and 5.7].]

Privacy Principle 2: Use and disclosure of personal information

Personal information gathered by journalists and photographers should only be used for the purpose for which it was intended. A person who supplies personal information should have a reasonable expectation that it will be used for the purpose for which it was collected.

Some personal information, such as addresses or other identifying details, may enable others to intrude on the privacy and safety of individuals who are the subject of news coverage, and their families. To the extent lawful and practicable, a media organisation should only disclose sufficient personal information to identify the persons being reported in the news, so that these risks can be reasonably avoided.

[The Principle fails to require the identifying details to be relevant [3.2.1], and fails to require confidences to be respected [6.4].]

Privacy Principle 5: Anonymity of sources

All persons who provide information to media organisations are entitled to seek anonymity. The identity of confidential sources should not be revealed, and where it is lawful and practicable, a media organisation should ensure that any personal information which it maintains derived from such sources does not identify the source.

[The Principle fails to require respect for requests for anonymity [3.2.1, 6.1, 6.2].]

Privacy Principle 7: Sensitive personal information

... Members of the public caught up in newsworthy events should not be exploited. A victim or bereaved person has the right to refuse or terminate an interview or photographic session at any time.

[The Principle fails to require that termination of an interview or photographic session automatically retracts any consent that may have been previously provided.]

Unless otherwise restricted by law or court order, open court hearings are matters of public record and can be reported by the press. Such reports [on open court hearings] need to be fair and balanced. They should not identify relatives or friends of people accused or convicted of crime unless the reference to them is necessary for the full, fair and accurate reporting of the crime or subsequent legal proceedings.

[The Principle fails to outlaw justification by means of prior publication [3.2.4], fails to require relevance in the case of personal data [6.5], fails to require relevance and importance in the case of sensitive personal data [6.6, 6.7].]

[The limitation on identification of friends and relatives expressly applies solely to reports on open court hearings, and the Principles are silent on identification of friends and relatives in other circumstances [6.3].]

[The review and remedies are deficient [7.3, 7.4, 7.5]. The remedies comprise only communication of an apology, publication of a correction, or publication of the APC's adjudication. Moreover, the remedies are entirely dependent on voluntary compliance by the relevant media organisation. The Council's policy is that complainants give up their right to institute legal action. The party whose privacy it is alleged has been invaded has to either be the complainant or consent to the complaint proceeding. Legal representation is permitted only in very exceptional circumstances.]


SMH

SMH (2006) 'The Sydney Morning Herald code of ethics' The Sydney Morning Herald, 2006, at http://www.smh.com.au/ethicscode/index.html

This code presumably applies to employees and possibly contractors to the Herald, but its enforceability depends on whether it is imposed as a condition of employment or contract, and whether it is effectively communicated to all relevant individuals.

The relevant clauses are:

In interpreting and applying the code, the interests that shall always be paramount are those of the public.

[The meaning of 'the public interest' is not operationalised. There is no requirement for justification. There is no mention of consent.]

FAIRNESS

Staff will use fair, honest and responsible means to obtain material. ...

[There is no control over excessive behaviour.]

PRIVACY

Staff will strike a balance between the right of the public to information and the right of individuals to privacy. They will recognise that private individuals have a greater right to protect information about themselves than do public officials and others who hold or seek power, influence or attention. They shall not exploit the vulnerable or those ignorant of media practices.

RESPECT

Staff will respect private grief. They have the right to resist pressure to intrude.

[This is highly vague and not expressed iat an operational level. It omits most of 3.1, omits 3.2 in its entirety, omits most of 5 and most of 6, and complaints-handling and remedies appear to be non-existent [7].]


The Age

Age (1998) 'The Age code of conduct ' The Age, October 1998, at http://www.theage.com.au/ethicsconduct.html

This code presumably applies to employees and possibly contractors to The Age, but its enforceability depends on whether it is imposed as a condition of employment or contract, and whether it is effectively communicated to all relevant individuals.

The relevant clauses are:

2. The public interest includes investigating and exposing crime, serious misdemeanour and seriously anti-social conduct, and investigating and exposing hypocrisy, falsehoods or double standards of behavior by public figures or institutions. It also includes protecting public health and safety.

[This is a rare instance of articulation of the notion of the public interest.]

11. Only fair and honest means should be used to obtain material. Misrepresentation and the use of concealed equipment or surveillance devices should be avoided. The use of deceptive methods or subterfuge may be condoned only where the Editor is convinced that the potential story is of vital public interest and there is no other way of obtaining the story.

In such cases, the journalist has the right to decline an assignment. If the journalist accepts the assignment, the nature of deceptive methods and the reasons for their use must be published with the story. Journalists deployed in this manner will be indemnified by The Age.

12. People's privacy should be respected and intrusions on privacy should be published only if there is a public interest.

13. Caution should be exercised about reporting and publishing identifying details, such as street names and numbers, that may enable others to intrude on the privacy or safety of people who have become the subject of media coverage.

14. People should be treated with sensitivity during periods of grief and trauma and wherever possible, be approached through an intermediary.

16. Photographs of victims or grieving people should not be published unless due consideration has been given to issues of sensitivity and privacy. Any restrictions placed on the use of photographs supplied by family or friends should be honored.

[This limits respect for confidences to a very narrow area of application [6.4].]

17. Gratuitous references to the state of a victim's body or body parts should not be published.

21. Special care should be taken when dealing with children (under the age of 16). The Editor must be informed when children have been photographed or interviewed without parental consent.

[This covers only one of many instances of vulnerability [5.4].]

[The Code fails to cover all of 3.1 and most of 3.2; all of 5.1, 5.6 and 5.7; all of 6.1, 6.3, 6.4 and 6.5; and all of 7.]


News Ltd
2006-11

News Ltd is a very large group, and confusion reigned through 2011 as to what code(s) applied, and where it/they was/were. The first code excerpted below presumably applies to employees of, and possibly contractors to, some or all News Ltd publications. However, its enforceability depends on whether it was imposed as a condition of employment or contract, and whether it was effectively communicated to all relevant individuals. Serious doubts were expressed by sceptical observers in mid-2011, not least because the Code was at that stage very difficult to find.

News Ltd (2006) 'Professional Conduct Policy' News Ltd, March 2006, at http://www.abc.net.au/mediawatch/pdfs/NewsLimited_ProfessionalCoC.pdf

The relevant clauses are:

3. Misrepresentation

3.1 Do not use false names when representing a News Limited publication.

3.2 Do not try to get information or photographs by deception.

4. Privacy

4.1 All individuals, including public figures, have a right to privacy. Journalists have no general right to report the private behaviour of public figures unless public interest issues arise.

The right to privacy diminishes when the suitability of public figures to hold office or perform their duties is under scrutiny and such scrutiny is in the public interest.

[This fails to specify that the public interest has to be sufficiently significant to over-ride privacy [3.1.3., 3.1.4].]

"Public interest" is defined for this and other clauses as involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others.

[This confounds 'the public interest' with 'what the public is interested in'. That serves the interests of media organisations not the public, and reflects the origins of the code. The wording is drawn from a UK judgement that is of limited relevance to privacy.]

4.2 Unless it is in the public interest to do so, do not identify the family or friends of people accused of or convicted of a crime.

4.3 The publication of sensitive personal information - such as taxation details, Family Court records and health and welfare matters - may be prohibited by legislation. Seek legal advice.

5. Covert activities

5.1 Journalists and photographers may at times have to operate surreptitiously to expose crime, significantly anti-social conduct, public deception or some other matter in the public interest.

All such operations must be approved in advance by the editor. This approval will be given only where good cause exists to suspect crime or deception has taken place, and after all other means of gathering the facts have been exhausted.

The editorial executive must be satisfied the importance of publishing the information sought outweighs any damage to trust and credibility which your newspaper might suffer by allowing employees to operate surreptitiously.

Where appropriate, the nature and reasons for operating covertly should be disclosed to readers.

6. Confidential sources

6.1 The sources of information must be identified, wherever possible. When an informant insists on anonymity, verification of the information offered must be sought from other, preferably attributable, sources.

6.2 A promise of confidentiality to a source must, of course, be honoured. ...

7. Harassment

7.1 Do not harass or try to intimidate people when seeking information or photographs.

7.2 Do not photograph people on their property without their consent unless the public interest in doing so is clear.

7.3 If asked to leave private property, do so promptly.

7.4 Do not persist in telephoning, pursuing, questioning, door-stopping or obstructing access after you have been asked by an authorised person to stop.

8. Discrimination

8.1 ... No details of a person's race, nationality, colour, religion, marital status, sex, sexual preferences, age, or physical or mental incapacity should be included in a report unless they are relevant.

[This declares that only these specific items of personal data are sensitive, and only applies a test of relevance (which should apply to all categories of personal data, not just sensitive personal data), and it's not necessary for them to be important [6.6]. On the other hand, it represents recognition of the category of 'particularly sensitive personal data', which few Codes have to date even acknowledged.]

9. Grief and distress

9.1 Reporters and photographers must always behave with sensitivity and courtesy toward the public, and in particular towards those involved in tragic events.

No one should be put under pressure to be photographed or interviewed. Initial approaches might best be made through friends or relatives.

We should respect the wishes of the bereaved or grieving.

9.2 Do not go into non-public areas of hospitals, welfare institutions, funeral parlours, churches, etc, without identifying yourself or without permission of the people affected or their intermediaries.

9.3 Maintain sensitivity when recalling tragedy or crime. anniversaries can be distressing reminders for survivors. 10. Children

10.1 Extreme care should be taken that children are not prompted in interviews, or offered inducements to cooperate.

10.2 Do not identify children in crime and court reports without legal advice.

10.3 For legal reasons, children under the age of 16 must not normally be photographed or interviewed about their welfare unless a parent or guardian is present and has given permission.

Similarly, children must not be interviewed about their parents or siblings unless a parent or other legally responsible adult is present and has granted permission.

10.4 Do not approach children in schools without the permission of a school authority.

[News Ltd's 7.2, 7.3 and 9.2 cover only very small parts if the 'private place' provisions of [5.1].]

[News Ltd's 10.1 covers only a very small part of the vulnerability provisions of [5.4].]

[The Code has no coverage of any of 3.2 , none of 5.2, partial coverage only of 5.6 and 5.7, no coverage of 6.2, 6.5 and 6.7, and none of 7.]

2012-

In November 2011, the outgoing CEO announced that the current Code would be replaced by "a single, new editorial code of conduct based on The Herald and Weekly Times code of conduct" (NewsCorp 2011).

HWT (2011) 'Editorial Code of Conduct Professional Conduct Policy' apparently of August 2011, at http://mp3.news.com.au/hwt/Code_of_conduct_Professional.pdf

The sole difference in the relevant clauses appears to be that, at 10.3:

10.3 For legal reasons, children under the age of 18 [was previously 16] must not normally be photographed or interviewed about their welfare unless a parent or guardian is present and has given permission.


ACMA
2011

All commercial broadcasters are subject to codes that are administered by the Australian Communications and Media Authority (ACMA). (The ABC and SBS have self-administered codes). The law is unusually respectful of the rights of the broadcasters and is as close to a request that the industry self-regulate as legislative drafting can achieve. The codes are prepared by the broadcasters or their industry associations, and are merely registered by the oversight agency.

The segments of the primary codes for commercial radio and television that relate to privacy are excerpted in the relevant sections of this document, below. This section provides information relating to the (very limited) oversight mechanisms.

The Broadcasting Services Act at s.123 states that:

(1)  It is the intention of the Parliament that radio and television industry groups ... develop, in consultation with the ACMA and taking account of any relevant research conducted by the ACMA, codes of practice that are to be applicable to the broadcasting operations of each of those sections of the industry.

(2)  Codes of practice developed for a section of the broadcasting industry may relate to:
(k)  in the case of codes of practice developed by subscription broadcasting licensees--dealings with customers of the licensees, including ... privacy and credit management;

(4) If [short list of conditions], the ACMA must include that code in the Register of codes of practice.

In relation to the content of the codes, ACMA has very limited powers, primarily under s. 123(4), and in relation only to commercial television broadcasting licensees, under s.123B. There is a nominal fallback power under s.125 to determine that a code "is not operating to provide appropriate community safeguards for a matter", in which case ACMA could "determine a standard in relation to that matter".

The first breach of a code by a media organisation can at most result in a 'remedial direction' from ACMA to the media organisation to comply with a law that it has already broken (s.141). Thereafter a contravention may be prosecuted (s.142).

A scan of the most recent two Annual Reports shows that no 'remedial directions' were given in relation to privacy breaches, and it is not apparent that any prosecutions have even been attempted, let alone achieved.

ACMA published a set of guidelines relating to privacy aspects of the Codes in 2005. A revised version was published in December 2011. Unlike the 2005 version, the revised document fails to make clear that the guidelines are purely informational, and have no force of law.

ACMA (2011) 'Privacy guidelines for broadcasters' Australian Communications and Media Authority, December 2011, at http://www.acma.gov.au/webwr/_assets/main/lib100084/privacy_guidelines-dec2011.pdf

ACMA indicates that, to succeed, a complaint has to survive the following hurdles (p. 2). The Australian Privacy Foundation severely criticised the new version, for reasons embedded [in square brackets and italics]:

  1. the broadcast has to have attracted code privacy protections
    [No guidance is provided as to what broadcasts are thereby excluded. A casual review found no instance of exemption of broadcasts from codes, but the existence of the hurdle suggests that there may be some. The ABC and SBS are not subject to ACMA-registered codes.]
  2. a person has to have been identifiable from the broadcast material
    [This provision has the effect that ACMA will not consider a complaint if the person is only identifiable by combining the data in the publication with other data - even if the other data is readily available and the media organisation should have known that to be the case.]
  3. the broadcast material has to have disclosed personal information or intruded upon the person's seclusion in more than a fleeting way.
    For intrusion upon a person's seclusion to have occurred, two conditions must be satisifed (p. 4):
  4. consent must not have been obtained from the person, or a parent or guardian
  5. the broadcast material must not have been readily available from the public domain
    [This provision has the effect that ACMA will not consider complaints about unjustified republication, and in the case of an avalanche of publications will only consider the first breach, which may not be the most significant. Hence both parallel but slightly later publication, and the scores and even hundreds of instances of republication, not merely will not be investigated, but also are actually absolved.]
  6. the invasion of privacy must not have been in the public interest.
    The public interest must be clear and identifiable (p. 5).
    Whether something is in the public interest will depend on all the circumstances, including whether a matter is capable of affecting the community at large so that citizens might be legitimately interested in or concerned about what is going on.
    Disclosure must be proportionate and relevant to the public interest, and not disclose peripheral facts or be excessively prolonged, detailed or salacious. The test is unlikely to be satisfied by the publication of information that is merely distasteful, socially damaging or embarrassing.
    [The third para. extends 'the public interest' into the realms of 'what the public is interested in'. That serves the interests of media organisations not the public, and reflects the origins of the code. The wording is drawn from a UK judgement that is of limited relevance to privacy. This has the effect that ACMA will reject many complaints about publications that are clearly not justified by 'the public interest'.]
    [The final para. states a proportionality test, but the criteria to be applied remain unclear. It should ne necessary for an invasion of privacy to be not merely in the public interest, but also important enough, taking into account the degree of privacy-invasiveness of the activity and the sensitivity of the information gathered and/or disclosed.]

Special care must be taken in the use of material concerning a child (under 17 years) or a vulnerable person, including by virtue of mental illness, difficulty communicating in English, a person who is bereaved or who has been involved in a distressing event.
[The 'special care' provision appears to be relevant only to the consent test.]

[Nominally, ACMA provides a means for escalation of a complaint beyond the media organisation, as per [7.3]. In practice, the process is so lacking in credibility that few complaints are made, and it appears that very few even of those result in a breach finding, any other form of remedy, or even a 'remedial direction'. The 2011 revision to the Guidelines makes it even more difficult for a complaint to succeed.]

2005

ACMA (2005) 'Privacy Guidelines for Broadcasters' Australian Communications and Media Authority, 2005, at http://web.archive.org/web/20110120183126/http://acma.gov.au/webwr/_assets/main/lib100084/privacy_guidelines.pdf

This stated that "The core notion found in the various code provisions is that broadcasters should not use material relating to a person's private affairs without that person's consent, unless there is an identifiable public interest reason for the material to be broadcast", and offered clarifications, while making clear that "the guidelines are advisory and do not have any legally binding force" (p. 1).


Commercial Radio

CRA (2011) 'Codes of Practice and Guidelines' Commercial Radio Australia, September 2011, at http://www.commercialradio.com.au/files/uploaded/file/Commercial%20Radio%20Codes%20&%20Guidelines%20%205%20September%202011.pdf

The current Code was revised almost 2 years after completion of a (nominally) 3-yearly review conducted by ACMA. It replaced a 7-year-old version of September 2004.

This code appears to apply to the commercial radio operators generally.

The relevant clauses are:

2.1 News programs (including news flashes) broadcast by a licensee must: ...
(d) not use material relating to a persons personal or private affairs, or which invades an individuals privacy, unless there is a public interest in broadcasting such information.

2.3 In the preparation and presentation of current affairs programs a licensee must ensure that:
(d) the licensee does not use material relating to a persons personal or private affairs, or which invades an individuals privacy, unless there is a public interest in broadcasting such information.

[There is no explication of the public interest.]

There is no requirement that the public interest be sufficient to justify the breach of privacy, merely that it exist.]

[There appear to be no provisions whatsoever relating to information-gathering behaviour [the whole of 3.1 and 5].]

[There is no articulation at all relating to publication, and no requirement of proportionality [3.2 and 6].]

[There is no provision for internal review or redress [7.1, 7.2, 7.4].]

[The 2011 version appears to differ from the 2004 version only to the extent that the expression in relation to current affairs programs is somewhat tighter.]


Commercial TV

ACMA (2010) 'Commercial Television Industry Code of Practice 2010' 1 January 2010, at http://www.acma.gov.au/webwr/aba/contentreg/codes/television/documents/2010-commercial_tv_industry_code_of_practice.pdf

The file is locked, and hence accurate quotations through copy-and-paste re precluded.

This code appears to apply to the commercial TV operators generally.

The relevant clauses are:

4.1 This Section is intended to ensure that:

4.1.3 news and current affairs take account of personal privacy and of cultural differences in the community;

4.3 In broadcasting news and current affairs programs, licensees:

4.3.3 should have appropriate regard to the feelings of relatives and viewers when including images of dead or seriously wounded people. Images of that kind which may seriously distress or seriously offend a substantial number of viewers should be displayed only when there is an identifiable public interest reason for doing so;

4.3.5 must not use material relating to a person's personal or private affairs, or which invades an individual's privacy, other than where there is an identifiable public interest reason for the material to be broadcast;
4.3.5.1 subject to the requirements of clause 4.3.5.2, a licensee will not be in breach of this clause 4.3.5 if the consent of the person (or in the case of a child, the child's parent or guardian) is obtained prior to broadcast of the material;
4.3.5.2 for the purpose of this Clause 4.3.5, licensees must exercise special care before using material relating to a child's personal or private affairs in the broadcast of a report of a sensitive matter concerning the child. The consent of a parent or guardian should be obtained before naming or visually identifying a child in a report on a criminal matter involving a child or a member of a child's immediate family, or a report which discloses sensitive information concerning the health or welfare of a child, unless there are exceptional circumstances or an identifiable public interest reason not to do so;
4.3.5.3 "child" means a person under 16 years.

4.3.6 must exercise sensitivity in broadcasting images of or interviews with bereaved relatives and survivors or witnesses of traumatic incidents;

Advisory Note - Privacy (pp. 63-67)

The Code of Practice requires stations to strike this balance by only using material relating to a person's personal or private affairs, or which invades an individual's privacy, where there is an identifiable public interest reason for the material to be broadcast.

The Code has additional requirements to cover specific circumstances, and there is a range of other laws that provide legal protection for privacy.

[In general, the 'Advisory Note' merely repeats the material above]

While there is no common law right to privacy as such, the following areas of common law nevertheless operate to protect privacy and restrict the obtaining and publication of information:

[There is no explication of the public interest.]

There is no requirement that the public interest be sufficient to justify the breach of privacy, merely that it exist.]

[There are almost no provisions relating to information-gathering behaviour [the whole of 3.1 and 5], the exception being re vulnerability [5.4, but children only].]

[There is almost no articulation relating to publication, and no requirement of proportionality [3.2 and 6], the exception being re sensitive situations [some of 6.5].]

[There is no provision for internal review or redress [7.1, 7.2, 7.4].]


ABC
2011

ABC (2011) 'Code of Practice 2011' Australian Broadcasting Corporation, 2011, at http://abc.net.au/corp/pubs/documents/codeofpractice2011.pdf

This code appears to apply to the ABC as a whole, including its radio, television and online services.

The relevant clauses are:

5. Fair and honest dealing

Principles: Fair and honest dealing is essential to maintaining trust with audiences and with those who participate in or are otherwise directly affected by ABC content. In rare circumstances, deception or a breach of an undertaking may be justified. Because of the potential damage to trust, deception or breach of an undertaking must be explained openly afterwards unless there are compelling reasons not to do so.

Standards:

5. Dealing with participants

5.1 Participants in ABC content should normally be informed of the general nature of their participation.

5.2 A refusal to participate will not be overridden without good cause.

[This fails to relate the decision to the public interest [3.2.1], and fails to require proportionality [3.2.3 and 6.1].]

Secret recording and other types of deception

5.8 Secret recording devices, misrepresentation or other types of deception must not be used to obtain or seek information, audio, pictures or an agreement to participate except where:

a. justified in the public interest and the material cannot reasonably be obtained by any other means; or

[This fails to require proportionality [3.2.3 and 6.1].]

b. consent is obtained from the subject or identities are effectively obscured; or

c. the deception is integral to an artistic work and the potential for harm is taken into consideration.

[There are no controls over excessive information-gathering behaviour.]

6. Privacy

Principles: Privacy is necessary to human dignity and every person reasonably expects that their privacy will be respected. But privacy is not absolute. The ABC seeks to balance the public interest in respect for privacy with the public interest in disclosure of information and freedom of expression.

Standards:

6.1 Intrusion into a person's private life without consent must be justified in the public interest and the extent of the intrusion must be limited to what is proportionate in the circumstances.

7. Harm and offence

7.5 The reporting or depiction of violence, tragedy or trauma must be handled with extreme sensitivity. Avoid causing undue distress to victims, witnesses or bereaved relatives. Be sensitive to significant cultural practices when depicting or reporting on recently deceased persons.

8. Children and young people

Principles:

The ABC has a responsibility to protect children and young people from potential harm that might arise during their engagement with the ABC and its content. ...

[There is no explication of the public interest.]

[The Code fails on [3.1.1, 3.1.2, 3.1.3]; the whole of [3.2]; [5.1, 5.2, 5.4, 5.6 and 5.7]; [6.2, 6.3, 6.4 and 6.5]; and [7.3, 7.4 and 7.5].]

2008

ABC (2008) 'Code of Practice' Australian Broadcasting Corporation, March 2007, updated 1 July 2008, at http://abc.net.au/corp/pubs/documents/200806_codeofpractice-revised_2008.pdf

The relevant clauses were:

2. General content codes

2.8 Privacy. 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.

2.10 Intrusion into Grief. Sensitivity should be exercised in presenting images of, or interviews with, bereaved relatives and survivors or witnesses of traumatic events. Except in special circumstances, children who have recently been victims of, or eyewitnesses to, a tragedy or traumatic experience should not be interviewed or featured.

2.14 Indigenous Australian Content. Significant cultural practices of Indigenous Australians should be observed in content and reporting.


SBS

SBS (2006) 'Codes of Practice 2006' Special Broadcasting Service, 2006, at http://media.sbs.com.au/home/upload_media/site_20_rand_2138311027_sbscodesofpractice2010.pdf

The file is locked, and hence accurate quotation through copy-and-paste is precluded.

This code appears to apply to the SBS as a whole, including its radio, television and online services.

The relevant clauses are:

1.9 Privacy

The rights of individuals to privacy should be respected in all SBS programs. However, in order to provide information to the public 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.

[Essentially identical to ABC (2008) at 2.8]

2.4 Violence and Distressing Events in News and Current Affairs

In covering murders, accidents, funerals, suicides and disasters, SBS expects program makers to exercise great sensitivity, particularly when approaching, interviewing and portraying people who are distressed.

[The expression of the Code is such that it is not directly actionable ("should be respected" "intrusions ... may, in some circumstances, be justifiable", "SBS expects ...").] The Code therefore fails on every criterion.]


Author Affiliations

Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in the Cyberspace Law & Policy Centre at the University of N.S.W., and a Visiting Professor in the Research School of Computer Science at the Australian National University.



xamaxsmall.gif missing
The content and infrastructure for these community service pages are provided by Roger Clarke through his consultancy company, Xamax.

From the site's beginnings in August 1994 until February 2009, the infrastructure was provided by the Australian National University. During that time, the site accumulated close to 30 million hits. It passed 50 million in early 2015.

Sponsored by Bunhybee Grasslands, the extended Clarke Family, Knights of the Spatchcock and their drummer
Xamax Consultancy Pty Ltd
ACN: 002 360 456
78 Sidaway St, Chapman ACT 2611 AUSTRALIA
Tel: +61 2 6288 6916

Created: 14 October 2011 - Last Amended: 17 January 2012 by Roger Clarke - Site Last Verified: 15 February 2009
This document is at www.rogerclarke.com/DV/PandM-Codes.html
Mail to Webmaster   -    © Xamax Consultancy Pty Ltd, 1995-2017   -    Privacy Policy