Secret filming of “Gotcha stories” highlights a privacy issue as well as freedom of expression concerns.

October 15, 2013 |

In Doctor calls for secret filming ban after ACA sting the Age reports on a complaint by a Queensland doctor to a story run by A Current Affair regarding certificates issued on, supposedly, weak grounds.  The nub of the complaint is the quite reasonable concern about being secretly filmed as well as misrepresentation by the Channel Nine Employees when seeing the doctor.  Stories of this type are stock in trade of A Current Affairs programs and its competitors.  They are run in different forms (sometimes doctors, sometimes dodgy repairmen fixing perfectly running appliances, sometimes dodgy tradesmen quoting for non existent problems etc…) from time to time.  It is hardly cutting edge journalism but it is journalism.  Often it is high on moral dudgeon and low on analysis. Sometimes it highlights genuine ill which is of public interest.  But not always. And sometimes the intrusion and distortion of events by the reporters and producers constitute the ill, not what they are reporting upon.

The complainant wants secret filming banned in medical buildings.  This is the sectoral complaint that is poor public policy and leads to inconsistent legislation.  Why a medical building and not a law firm?  Why a law firm and not an accountant’s office?  Why not an engineering plant or the warehouse of a supermarket? There are privacy issues associated with most work areas.  Some involve more senstive information and have a greater need for protection than others.  In medical facilities privacy is vitally important.  There should be a statutory right of privacy which can provide enforceable protections. That is not to say a doctor whose activities werre filmed would be successful if such a right existed.  A report may expose malfeasance or illegaility.  There is a public interest in such reportage.  Many privacy issues do not involve conflict or overlap with freedom of expression issues (despite what the leader writers and Op Ed columnists from the Australian might say) but this a situation is where there is a tension.  But one that can be balanced by a carefully constructed statutory right to privacy incorporating a right to freedom of expression as either a defence or a counterveilling factor to be weighed.   And there are legitimate freedom of expression issues that must be balanced against privacy rights.  But banning filming is a foolish response.

The story provides:

A Queensland doctor featured on national television in an undercover sting wants secret filming banned in medical buildings.

Dr Liam Carroll says he is considering a defamation lawsuit against the Nine Network over a story which aired on A Current Affair on October 2, titled “Doctor’s Certificate Scandal”.

Dr Carroll was one of five GPs visited by producers who did not identify themselves as Nine Network employees. The two producers went in together, with one asking for a certificate and the other secretly filming the consultation.

In all cases, the doctors issued medical certificates to producer Aaron O’Brien, who was then interviewed on-air by his own program.

“I expected the doctors to pull me up for a pretty lame excuse that we were offering. I just went in and told them that I was tired,” Mr O’Brien said in the broadcast.

Mr O’Brien said it was A Current Affair policy not to comment on stories after they’ve run.

The show pixelated the faces of the doctors and did not name them or their workplaces.

However, Dr Carroll said people contacted him the day after the segment aired, when they recognised his Irish accent.

Dr Carroll, who works at Brassall Clinic near Ipswich, said he was “made out to be some sort of clown” because the network allegedly did not broadcast a critical section of the consultation.

Dr Carroll said he did not give the medical certificate to Mr O’Brien because he was tired. Instead, Dr Carroll said, the real reason was because the producer allegedly claimed he was stressed and appeared to be “almost in tears”.

“Any male that comes in and says they’re stressed and can’t face work … you have to believe they are telling the truth given the suicide risk in Australia,” Dr Carroll said.

The Nine Network declined to comment on Dr Carroll’s claims, or provide Fairfax Media with an unedited copy of the recording.

Dr Carroll wants state laws to be changed to ban medical consultations being secretly filmed because of the risk of confidential material being passed on to others.

“A consultation is for many people a place of refuge. We trust what the patient tells us, and they trust what we tell them,” he said.

The Queensland Invasion of Privacy Act allows for secret video recordings to be shared or broadcast if there is reasonable proof that it was shown in the public interest.

Professor Des Butler from Queensland University of Technology law faculty said the state laws were written in 1971 with audio recording devices in mind, and hadn’t been changed to include provisions for secret video filming.

“It’s an area of law that is long overdue to be updated,” he said.

Professor Butler said laws had been amended in NSW, Victoria, WA and the NT to include video in their surveillance acts.

A spokeswoman for Attorney-General Jarrod Bleijie said the Queensland government had no plans to update the act.

“Independent legal advice should be obtained where a person or organisation is considering publishing a recording or the content of a private conversation to determine whether such publication would be a breach of the act,” the spokeswoman said.

Queensland Council for Civil Liberties spokesman Michael Cope said he had concerns the Queensland laws could permit secret filming of sick patients, although that did not occur in the October 2 A Current Affair story.

“A rule that stops someone from walking in and doing this to a doctor is a rule which would also prevent others from doing stories exposing something heinously wrong,” Mr Cope said.

The story highlights how far out of date and inadequate the Queensland legislation is and how unwilling the legislature is to address the development of technnology (for reasons that are not immediately clear).  It is not a simple issue but the law as it stands is woefully inadequate to consider the competing interests.The Invasion of Privacy Act 1971 is found here. Just to show that even a serious issue like this can have a lighter side there is a game simulating the changes to Facebook’s privacy policy (found here).
An interesting comment on the overall vile nature of the journalism involved in these types of stories (and some good background) found at a Club Troppo post titled What’s the difference between a tabloid TV reporter and a tapeworm? and found here.

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