Peter A Clarke

Australian media organisations have been entirely consistent when it comes to reform to the Privacy Act 1988 and any other reform to privacy laws. They want none of it. And they say “none of it” at the top of their voice. And they have done that with every review of the Privacy Act over the years and upon any suggestion that there be a statutory tort of interference with privacy. In the past the opposition has been so ferocious and vitriolic as to be detached from logic. The current review of the Privacy Act, culminating in the Attorney General’s Report in February 2023 has elicited much the same response from the Right to Know Coalition which (re)stated its adamant opposition to the proposed reforms contained in the report. In response to the Issues Paper and Discussion Paper the media organisations were keen respondents making their points in determined but polite way.

The deadline for final submissions to the Report was 31 March 2023.  It is only now that the Right to Know Coalition has swung from submissions on legal issues with proposals in the Issues Paper, Discussion Paper and the Report to a full on political and editorial assault on the reform proposals.  Carefully worded legal analysis has given way to high volume polemics and apocolyptic predictions and general purpose mischief making. 

The Guardian, part of the Right to Know coalition, reports on the statement in Media companies slam proposed reforms to Australian privacy laws.

The article provides:

Media companies have rejected a proposal to reform Australian privacy law, warning that the changes – including a right to sue outlets for serious invasions of privacy – are not in the public interest and would harm press freedom.

The Right to Know coalition warns the attorney general’s department’s proposal, released in February, would have “a devastating impact on press freedom and journalism in Australia without any clearly defined need or benefit”.

The coalition includes the Guardian, News Corp, Nine, AAP, Free TV Australia, the media union and public broadcasters the ABC and SBS.

The proposal, which is not government policy, calls for Australians to gain greater control of their personal information, including the ability to opt out of targeted ads, erase their data and sue for serious breaches of privacy.

The department’s report said individuals wanted “more agency to seek redress for interferences with their privacy”. It proposed the creation of a right to sue for “serious invasions of privacy”, which was also a recommendation of the Australian Law Reform Commission in 2014.

But the Right to Know coalition on Thursday said this would be “contrary to public interest and result in a significant curtailing of press freedom in Australia”, particularly because it will “undermine news reporting” and fails to give enough weight to free speech.

It also argued a right to sue will “place a significant burden on courts and industry” and “will primarily benefit wealthy and high profile individuals”.

The Right to Know coalition said the impact would be greatest on smaller media organisations, which would have to cut back on reporting to comply.

“There is a serious danger under some of the proposals that journalism will be exposed to expensive and time-consuming legal challenges,” it said in a submission to the department.

If the right to sue is created, media organisations “in the course of journalism should be exempt from the operation of the tort”.

The department proposed that media companies should be required to comply with obligations to secure and destroy private information, and be obliged to notify affected individuals under the notifiable data breaches scheme.

But the Right to Know coalition “strongly objected” to tinkering with the journalism exemption in the Privacy Act, and suggested that if individuals get new rights then media companies should also be exempted from those.

The department also proposed for the Office of the Australian Information Commissioner to create “criteria for adequate media privacy standards and a template” that media companies may adopt. It said the OAIC should gain greater power to conduct “investigations of civil penalty provisions”.

Australia needs to strengthen press freedom laws and promote transparency, inquiry finds

The Right to Know coalition said there was a “significant risk” that these standards would stray into editorial decision making and areas better dealt with in the media sector rather than a privacy regulator.

These would include “matters of corrections and accuracy, as well as determining the appropriate balance of the freedom of expression against applicable rights of privacy”.

The coalition warned the OAIC “should not be given any additional investigatory powers: in particular it should not have any powers to issue warrants in respect of journalists and media organisations”.

The Business Council of Australia opposed the right to sue for privacy breaches in earlier consultations, labelling it “premature to introduce a tort that would often overlap with the protections of the Australian Privacy Principles”.

In January Sunita Bose, the managing director of Digital Industry Group Inc – whose members include Google, Apple, Meta, Twitter and TikTok – told Guardian Australia it was in favour of aligning Australia’s law with the European GDPR “which has a lot of strong elements, including consumer rights around data erasure”.

The Right to Know Coalition has focused on some of the less sensible proposals in the Report, such as Commissioner establishing standards affecting journalists.  Beyond journalists themselves there is not much support for the absolute blanket journalist exception.  That said the Report’s vague and half coverage is not practical or effective and will please no one in addition to being quite unlikely to provide much in the way of privacy protection.  But the complaint about a tort of serious interference with privacy is misconceived and is the same jeremiad that accompanied responses to other privacy law reforms.  It is a great complaint about something that is not focused on journalism.  There is no evidence that it will suppress free speech.  In Europe and the UK the GDPR and a tort of privacy has permitted journalists to do their job.  Similarly the complaint about the Commissioner having greater powers is more a fear of proper regulation than a genuine concern that media organisations or any other bodies will be able to function properly. 

There is something elemental in journalists resisting any notion of increased privacy rights.  Even progressive (left) journalists find any thought of an individual privacy right as being disastrous for the conduct of their profession even if they do not breach others privacy.  Part of the reasoning is that the defamation laws are so anti journalistic that any other laws will be the end of proper reporting.  The reasoning has developed a second strand, that now that defamation requires a serious loss claimants will simply allege a breach of privacy.  Nonsense of course.  Then there is the all encompassing “chilling effect” argument, something that has not stopped European journalists running stories, uncovering corruption and doing what journalists do.   

It is not surprising that journalists resist any change to the journalist exemption.  Just as it is not surprising that businesses want to maintain the employee record exemption and political parties do not want to change the political exemption.  Each are broad and total exemptions.  They are described as entirely appropriate, fit for purpose by journalists.  The reality is that each exemption was poorly thought through, is entirely inconsitent with worldwide data protection practice and makes little sense when considered from first principles.  The Coalition Government was entirely wrong in carving out these exemptions, as well as the small business exemption in 2001.  The ALP opposition did not raise any real concerns at that time to its discredit.  At that time the amendments to the Privacy Bill was of no interest to anybody in the political class.  It was a necessary amendment to comply with EU requirements for the purpose of data flows. 

In 2023 the journalism exemption in its current form is unsustainable.  As is the political and business records exemption.  The Report’s Proposals have tried to reduce the scope of the exemption while recognising the need for providing some protections from all of the APPs.  With respect to the journalism exemption the result is confused.  With respect to political parties and business records the result has been a mess. 

The question of course is whether the Government will resist these complaints as previous governments have not in the past.  Both Coalition and Labor Governments have wilted under such lobbying in the past.  The circumstances have changed and it seems that there is a willingness to reform the law but time will tell.  

The Australian, in an unholy alliance with the Nine Papers and the Guardian, has published a suitably outraged piece Media companies warn changes to privacy laws would have a ‘chilling’ effect on press freedom.

It provides:

In its submission to the Attorney-General’s department, Australia’s Right to Know coalition (ARTK) says it’s critical that the law retains the “journalism exemption”.

The existing carve-out in the legislation ensures journalism “is exempt from the operation of the Act, provided the organisation is publicly committed to observe standards that deal with privacy”.

In February, Attorney-General Mark Dreyfus released a proposed review into the Act, which found that Australians wanted “more agency to seek redress for interferences with their privacy”.

The proposals are not government policy.

The ARTK, in its submission, argues that paving the way for individuals to sue for “serious invasions” or privacy is a backward step, and would have a “chilling” effect on reporting.

“The nature of journalism is that information about third parties will be collected and disclosed without their consent, and often over their objection,” says the submission, which will be handed to the department on Monday.

“Good journalism will often intersect with individuals’ desire to suppress the revelation of information to the public.

“If the handling of personal information in the course of journalism leads to exposure to liability, regulatory sanctions and litigation, there will be a serious chilling effect on reporting.

“For this reason alone the proposals should be limited to responding to clearly identified problems and should be proportionate.”

The media coalition’s primary concern with the report’s proposals are that increased regulation will lead to a suppressed media; the current journalism exemption is fit for purpose and does not require amendment; there is a serious danger under some of the proposals that journalism will be exposed to “expensive and time-consuming” legal challenges; and the introduction of a tort of invasion of privacy will have “a detrimental impact on freedom of expression and will undermine news reporting”.

The submission warns that introducing a direct right of action and a tort of invasion of privacy “will cause a flood” of new legal proceedings.

“Given that defamation proceedings are no longer available to individuals who cannot demonstrate serious harm, individuals will simply shift their focus to bringing privacy proceedings … which on the proposals will have a lower legal threshold, directly contradicting the purpose of the Council of Attorneys-General in introducing the serious harm threshold into defamation legislation across Australia,” it says.

“The proposed tort will have a detrimental impact on freedom of expression and freedom of the media and will undermine news reporting; will place a significant burden on courts and industry and is inconsistent with the broader approach of governments to civil liability; fails to provide any clear public benefit; will primarily benefit wealthy and high profile individuals; and adopts a model which is problematic and will lead to negative public outcomes due to its failure to properly address the public benefit and public interest in free speech and freedom of expression.”

The ARTK says the AG’s report fails to grasp the role of journalism in society.

“The report … seems to misunderstand the important role of journalism and news reporting in a strong democracy, particularly in Australia’s democracy where it is acknowledged that media freedom requires bolstering,” it says.

Members of the ARTK coalition include News Corp (publisher of The Australian), the ABC, Nine Entertainment, the Guardian, and Free TV.