Peter A Clarke

ACMA announced that Channel Nine breached the factual accuracy and privacy clauses of the Commercial Television Code of Practice.

The media announcement

The announcement provides:

The Australian Communications and Media Authority has found that Queensland Television Ltd (Channel Nine) breached factual accuracy and privacy clauses of the Commercial Television Industry Code of Practice 2010 (the Code) in two segments of its A Current Affair program broadcast on 2 and 18 October 2013.

Broadcast 1, ‘Doctor’s Certificate Scandal’, reported on how a patient obtained medical certificates from doctors when he was not sick. The segment included footage of five doctor consultations with the bogus patient, obtained using a hidden camera.

Broadcast 2, ‘Doctor Revolt’, a sequel to Broadcast 1, presented extended footage of two of the consultations in response to complaints from two of the doctors who featured in Broadcast 1.

The ACMA found that while the extended footage in broadcast 2 established that broadcast 1 was inaccurate, both segments contained inaccurate factual assertions that the two doctors had issued medical certificates for non-bona fide reasons, when in fact both doctors had investigated what they believed to be real medical symptoms and explored further treatment for these symptoms before issuing the certificates. 

The ACMA also found that one of the doctors was identifiable in the broadcast, and that the use of the recorded footage of the consultation invaded his privacy.

‘There was no public interest justification in the program’s surreptitious filming of medical consultations, its inaccurate descriptions of those consultations and its editing of the footage to achieve a false effect,’ said ACMA Chairman, Chris Chapman.

In the circumstances, the ACMA recommended to Channel Nine that it make an on-air statement of the ACMA’s findings, which Channel Nine declined to do. Channel Nine did agree to:

>      remove the relevant segments from the program website,

>      include on the program website a summary of, and a link to, the ACMA’s final report

>      include the matter in training materials for staff.

The investigation also resulted in a non-breach finding with respect to the licensee’s handling of the code complaint.

Investigation Report

ACMA investigated complaints about both accuracy and privacy.  For the purpose of this post I have focused on the privacy issue.

Facts

ACMA’s investigation related to two segments of  A Current Affair broadcast on 2 and 18 October 2013.

Each of the segments were described as:

• Broadcast 1, ‘Doctor’s Certificate Scandal’, reported on how a patient obtained medical certificates from doctors when he was not sick. The segment included footage of five doctor consultations with the bogus patient, obtained using a hidden camera.
• Broadcast 2, ‘Doctor Revolt’, a sequel to Broadcast 1, presented extended footage of two of the consultations in response to complaints from two of the doctors who featured in Broadcast 1.

The Code

Code 4.3 relevantly provides:

4.3   In broadcasting news and current affairs programs, licensees:

…

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;

The methodology ACMA uses is:

>       Was a person identifiable from the broadcast material?

>       Did the broadcast material disclose personal information or intrude upon the person’s seclusion in more than a fleeting way?

If the answer to both of the above questions is yes, then there is a potential breach of code privacy provisions. The ACMA will then consider:

>       Was the person’s consent obtained?

>       Was the broadcast material readily available from the public domain?

Was the invasion of privacy in the public interest?

Decision

ACMA first considered the issue of identification of a complainant.  It stated:

A person will be identifiable if, from the broadcast, the person’s identity is apparent or can reasonably be ascertained. The question of whether a person is ‘identifiable’ is considered on a case-by-case basis, having regard to the context and content of the particular broadcast.

ACMA found that the broadcast made clear:

• that the doctor was a general practitioner and the footage of him at his clinic was not fleeting.

• the doctor’s activities in the consultation were shown in some detail, revealing his individual characteristics such as his accent.
• No attempt was made to disguise the doctor’s voice and his  mannerisms and style of clothing were recognisable.
• the consultation room was filmed in sufficient detail for a viewer who knew the doctor as a colleague or because of their attendance  to associate it with him.

As a consequence ACMA regarded  the pixilation of the doctor’s face was insufficient to de-identify him and that he  would have been identifiable from the contents of the broadcast without substantial further enquiry.

ACMA regarded personal information as that which can include:

• “..facts about a person’s health, personal relationships, financial affairs, sexual activities, and sexual preferences or practices. It can also include information about a person’s racial or ethnic origin, political opinions, membership of a political association, religious beliefs or affiliations, philosophical beliefs, membership of a professional or trade association, membership of a trade union, criminal record and other sensitive personal matters.”
• a person’s business address if it identifies an individual and reveals information about them.

The broadcast of a person’s personal information such as a name and address or other identifying details without consent may be a breach of privacy even where such information has some limited availability.

ACMA found that a person’s privacy may be invaded if he or she:

“..would have a reasonable expectation that their activities would not be observed or overheard by others, and a person of reasonable sensibilities would consider the broadcast of these activities to be highly offensive. Such activities may include everyday activities. The invasion must be more than fleeting and it may occur in a public space.”

While it found that footage filmed inside a workplace is not of a ‘private activity’ where the space was open and there was no expectation that the activity would not be heard or observed by others in this situation:

• the doctor was obviously not aware that the consultation was being recorded and he was clearly under the impression that it was being conducted with a genuine patient about medical issues which are inherently sensitive matters.

• there was an expectation of privacy in relation to the conversations and activities taking place within the enclosed space of the consultation rooms.
• regardless of the nature of the consultation a doctor in this position would not reasonably expect his or her discussions with a patient to be listened to, overheard or recorded by others.

• “..a person of reasonable sensitivities would consider that the disruption to the provision of health services in filming a contrived consultation, the invasion of seclusion of a medical consultation in which sensitive personal health matters may be discussed and patients examined, and the potential inhibiting effect on the candid discussion and treatment of medical complaints, to be highly offensive.”

As a consequence ACMA found that:

“..in Broadcast 1, the licensee used material (being the surreptitiously recorded video of a consultation with Doctor A) which invaded Doctor A’s privacy within the terms of clause 4.3.5 of the Code.”

Regarding public interest component ACMA stated that to be justified an invasion of privacy must be relevant and proportionate to the public interest issues.  In these circumstances ACMA was not satisfied:

“..that there was any identifiable public interest reason for the broadcast of the relevant conversations in Broadcast 1. Indeed, if anything, the surreptitious filming of medical consultations, the inaccurate descriptions of those consultations and the editing of the resultant footage to achieve a false effect were contrary to the public interest.”

Recommendations

ACMA’s recommendations relevantly were:

Channel Nine …. make an on-air statement of the ACMA’s findings, which Channel Nine declined to do. Channel Nine did agree to:

>      remove the relevant segments from the program website,

>      include on the program website a summary of, and a link to, the ACMA’s final report

>      include the matter in training materials for staff.

Discussion

ACMA undertook a very useful analysis on how to approach a privacy related complaint where the issue of identification of the complainant is not straightforward.  ACMA sensibly analysed all the facts and found that notwithstanding pixalation of a person’s face other factors, including voice, body mannerisms, the distinctive nature of the of the rooms and clothes may also permit identification.  This is entirely reasonable.  Context is relevant.

The other, less pleasing, issue arising out of this report is the effect of the Report.  From almost 12 months from date of incident to detailed report there has been no sanction upon Channel Nine for a serious breach of the Code.  Even in respect of the recommendations Channel Nine refused to apologise.  This is the chronic problem with privacy related investigation by government authorities.  The very anemic recommendations and non sanction to serious breaches constitute poor public policy.  This was a very egregious breach of privacy under the rubric of reportage.  The transcript of the interview between doctor and patient attached to the report was not properly represented in broadcasted segments. There was very little journalistic rigour applied to the story and public interest, having regard to the facts, was negligible if at all. The complainants had every reason to complain.  But the outcome is best described as symbolic.

The Age reports on the investigation at Watchdog slaps wrist of A Current Affair for hidden camera expose which provides:

The broadcasting watchdog has slapped Channel Nine’s A Current Affair for breaching privacy and accuracy standards in a hidden camera expose.

The Australian Communications and Media Authority “recommended” to Nine that it alert viewers of its breaches via an on-air statement – though ACMA does not have the power to enforce this. Nine has declined the watchdog’s recommendation.

The two broadcasts, which aired in October last year, involved journalists posing as patients to obtain medical certificates – even though they were not sick.

As ABC’s Media Watch reported last year, one of the doctors, Liam Carroll, was recognised by his patients because of his Irish accent. The following week, Dr David Chambers, who was secretly filmed by ACA too, told Media Watch he had also been misrepresented by the program and recognised by colleagues and patients. 

ACMA found that Carroll, operating out of the Brassall Clinic near Ipswich, was identifiable in ACA’s footage and his privacy had been invaded by the covert recording of his consultation. 

ACMA also found both segments inaccurately claimed that two doctors had issued medical certificates for “non-bona fide reasons”. It determined that both doctors had investigated what they believed to be real medical symptoms and explored further treatment before issuing the certificates. 

Media Watch host Paul Barry told viewers his program had requested the unedited recording of Carroll’s consultation but ACA refused. 

Today, Dr Carroll told Fairfax Media that only “35 to 40 per cent” of his 11-minute consultation was screened and that he had been misrepresented. 

Though he was not named on air, he was filmed asking undercover reporter Aaron O’Brien, “What excuse will I put in [the medical certificate]?” 

O’Brien told ACA host Tracy Grimshaw that the doctor “seemed to think it was all a bit of a joke”. 

But Dr Carroll said today that O’Brien had arrived looking “shaky” and “anxious”, with “sweaty hands”, was “cowed over”, and claimed he had a relative with bi-polar disorder. 

Dr Carroll said that far from giving O’Brien a free pass, he urged him to return to work – but this was not shown to viewers. 

“I gave him a little chat about the importance of getting back to work sooner rather than later … I gave him one day off.

“I also offered him free psychology three times – in excess of $1000 worth of free psychology [through bulk billing].”

Dr Carroll said that in light of O’Brien’s many apparent symptoms – and the fact he seemed to have been “dragged in” by a woman posing as his girlfriend – he was focused on helping his patient relax. 

“I said something like ‘What excuse shall I put?’ I’m trying to make the guy feel at ease, be a little bit colloquial, be a little bit loose with words, so you take the barriers down.”

Dr Carroll said a high proportion of people who commit suicide visit a doctor in the five weeks before they take their lives and that GPs cannot afford to be dismissive of possible symptoms of mental illness. 

“You have to take people at face value,” he said. 

“If you’re a doctor and I walk in and tell you I’ve got the worst headache I’ve ever had, I can’t say, ‘No you don’t.’ You have to believe what I tell you. 

“I think GPs do a pretty good job; it’s a pretty stressful job. I just wonder what could possibly be the next logical step. Are we going to have somebody who comes in with a hidden camera, pretending to have breast cancer, see how the doctor reacts to that, then chop it up and stick it together and take the comments out of context?”

Dr Carroll came out immediately after the initial airing of the program and called for a ban on secret recordings in medical buildings.

Nine did not comment on ACMA’s findings today. 

While the network has refused to read a statement on air, it agreed to ACMA’s requests to remove the videos from its website, post a summary of ACMA’s report on the ACA homepage, and include the matter in staff training materials. 

ACMA’s report said Nine defended its broadcast as being in the public interest because it related to “the cost to the economy and businesses in Australia of the number of sick days taken and the ease of access to medical certificates”. 

But ACMA chairman Chris Chapman said, “There was no public interest justification in the program’s surreptitious filming of medical consultations, its inaccurate descriptions of those consultations and its editing of the footage to achieve a false effect.”

Dr Carroll said he is “disappointed” by Nine’s lack of an apology. It is understood he may pursue legal action. 

“I think ACMA did a great job but it’s a pity they don’t have the power to enforce some of those things,” he said. 

It is relevant to consider that the  ALRC has recently recommended that there be a statutory cause of action for an interference with privacy.