The Australian Communications and Media Authority (“ACMA”) has found that A Current Affair has breached its privacy rules in relation to a report about a neighbourhood dispute on 21 March 2022.

The media release provides:

The Australian Communications and Media Authority (ACMA) has found TCN Channel Nine (Nine) breached privacy rules in a story on A Current Affair that included mobile phone footage of a dispute between neighbours.  

An ACMA investigation found the story breached a participant’s privacy by including his name, part of his residential address and unobscured video footage of his face without his consent.

Under the Commercial Television Industry Code of Practice, broadcasters must not air personal information without consent unless it is in the public interest. 

ACMA Chair Nerida O’Loughlin said broadcasters must respect the privacy of individuals included in news and current affairs reporting.

“Broadcasters may only disclose personal information without consent if it is relevant and proportional to the public interest,” Ms O’Loughlin said.  

“In this case our investigation found it wasn’t in the public interest for Nine to disclose the individual’s name and address because it wasn’t necessary to enable the audience to understand the overall issue.

“Even if material is already available in the public sphere, as some of this footage was, a licensee has an obligation to consider how broadcasting the material may further impact people’s privacy.”

As a result of the ACMA’s investigation the licensee will train staff in the privacy requirements of the code.

FACTS

In July 2022, the Australian Communications and Media Authority (the ACMA) commenced an investigation under the Broadcasting Services Act 1992 (the BSA) into an episode of A Current Affair.

The episode was broadcast on Nine by TCN Channel Nine Pty Ltd (the Licensee) at 7 pm on 21 March 2022.  The relevant report was about a viral online video regarding a dispute between a man and his neighbour in regional New South Wales (the Report).

A representative of the neighbour made a complaint to  ACMA alleging that the Report breached the neighbour’s privacy.

The ACMA investigated compliance with clause 3.5.1 [privacy] of the Code.

The Report:

• concerns the circumstances surrounding an online video (the Online Video) going viral after it was posted by a 19-year-old man (the Man) living in a small community in regional New South Wales.
• included an on-camera interview with the Man interspersed with video footage of an altercation between the Man and his neighbour (the Neighbour) that appeared to have been recorded in the early evening on a mobile phone by a friend of the Man.

The video footage showed:

• the Neighbour entering the Man’s backyard, by climbing over a fence, apparently to complain about the placement of a floodlight at the back of the Man’s home.
• the Man responding to the complaint and then repeatedly asks the Neighbour to leave his property.
• the Man’s friend informing the Neighbour that he is being recorded
• the Neighbour then approaching the Man’s friend in an intimidating manner.
• the Man intervenes
• there followed a brief scuffle,
• the Man strikes the Neighbour who falls backwards onto the ground where he remains motionless.
• a brief close-up of the Neighbour leaning over a gate with a cut to his nose and blood on his face and on the back of his hand.
• the Neighbour objecting to being filmed and lashes out at the camera at which point the footage ends.

DECISION

In assessing compliance with clause 3.5.1, the ACMA considered its Privacy Guidelines for Broadcasters 2016 (the Guidelines).

ACMA adopts a 2 stage process:

First, it considers the following questions:

• 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 these questions is yes, then there is a potential breach of the Code’s privacy provisions and

Second ACMA considers whether:

• the person’s consent was obtained—or that of a parent or guardian?
• the broadcast material was in the public domain?
• the invasion of privacy was in, and proportionate to, the public interest?

If the answer to any of these three questions is yes, then there may be no breach.

Whether the person was identifiable

A person will be identifiable if, from the broadcast, their identity was apparent or could be reasonably ascertained.

The question is considered on a case-by-case basis, having regard to the context and content of the particular broadcast.

The ACMA found the Neighbour was identifiable during the Report because:

• the presenter of the Report (the Presenter) referred to the Neighbour by his full name and subsequently referred to him by his given name on two occasions.
• the video footage showing facial detail of the Neighbour:
  • the Neighbour and the Man standing on a driveway having a conversation
  • a brief, close-up of the Neighbour leaning over a dividing fence
  • a sequence, leading up to the physical altercation and shown on multiple occasions, that included a close-up of the Neighbour’s face
  • the Neighbour falling to the ground while attempting to climb over a fence when entering the Man’s property.

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

The Guidelines adopt a broad interpretation of ‘personal information’ that includes information:

• of a sensitive and personal nature that is usually factual in nature but need not be secret or confidential. Personal information includes an individual’s name and address.
• about personal relationships and domestic or family life.

ACMA considered the altercation the subject of the Report as being a personal affair between the Man and his Neighbour.  Communicating information about the fact of the Neighbour being involved in the altercation communicated personal information about the Neighbour.

The Report disclosed the following facts that included personal information about the Neighbour:

• that the Neighbour had previously complained to the Man about the placement of the floodlight and about another matter relating to the placement of sandbags on an adjoining property
• that the Neighbour approached the Man’s friend in an intimidating manner and failed to leave the property when requested to do so
• that after a scuffle the Neighbour was punched by the Man, apparently knocked out and suffered a cut to his nose as a result of the altercation
• that the Neighbour had expressed remorse about the altercation and wanted to apologise to the Man
• that Police spoke to both men but no formal complaint was made.

The Presenter disclosed personal information about the Neighbour including:

• his full name on one occasion and
• his given name on two occasions,
• his age on two occasions, and
• partial details of his residential address by naming the town in which the Neighbour was living.

Was the person’s consent obtained—or that of a parent or guardian?

The Code allows personal information to be broadcast if the person provides implicit or explicit consent to the material being broadcast.

The Guidelines provide that consent must be given voluntarily, be informed, and given by a person with legal capacity and an understanding of the use to which the material will be put.

The complainant submitted that the Neighbour:

• refused to make a statement to the Presenter and
• did not provide consent to the Licensee broadcasting material about him.

The Licensee submitted that:

• the circumstances of the incident suggest that the Neighbour gave implied consent to being recorded on video
• was made aware on multiple occasions that he was being recorded and continued to behave ‘inappropriately’.
• if a person has given implied consent to being recorded then it is reasonable to assert that the person has also consented to any use of the footage.
• it was lawful for the Man to record the incident and to post the footage online.

ACMA stated that even if it accepted that the Neighbour consented to being recorded on video by the Man’s friend (which it does not), it did not follow that this consent extended to the Man publishing the footage online or to allowing the Licensee to broadcast the material.  There was no evidence to support a conclusion that the Neighbour consented to the broadcast of the video by the Licensee.

ACMA accepted the complainant’s submission that consent was not given to broadcast the personal information.

Was the broadcast material available in the public domain?

The Licensee argued that:

• the broadcast material did not be relate to the Neighbour’s personal or private affairs because it was available in the public domain.

• the context of the incident involving the Neighbour and the Man made it lawful for the Man to record the incident and to post the footage online without the consent of the Neighbour:

• the Code was not breached because the nature of the material in the Online Video was not ‘inherently offensive’ to the Neighbour.

The Man had published the footage of the incident online and:

• it had attracted a large global audience:
• the Man and the Neighbour are clearly identifiable

ACMA accepted that the Online Video published by the Man was material that was available in the public domain at the time of the broadcast however the Code the  does not provide a blanket exemption to the privacy obligations under the Code or allow material to be broadcast merely because it is already in the public domain.

The ACMA considered the nature of the material and the context in which it became publicly available in determining whether broadcast material should be regarded as relating to a person’s personal or private affairs and noted that:

• according to the Guidelines broadcasting material obtained from online or social media sites, where there are no access restrictions, may not be an invasion of privacy save if it has been put in the public domain without the affected person’s knowledge or consent—for example, material that is inherently offensive and appears to have been uploaded by someone other than the affected person.
• there is no indication in the Online Video that the Neighbour gave his express permission for the Online Video to be uploaded 
• ACMA did not accept the Licensee’s submission that the Neighbour gave implied consent to the publication of the Online Video.
• whether or not the Man was legally entitled to post the Online Video is separate to the issue of whether the Licensee was permitted under the Code to broadcast the footage without the Neighbour’s consent.
• the privacy protections under the Code are not limited to restricting the broadcast of ‘inherently offensive’ material. The Guidelines refer to the broadcast of ‘inherently offensive’ material as an example where the broadcasting of material already in the public domain may result in a breach of the Code.

The ACMA considered  the use of the Online Video in the broadcast by the Licensee breached the privacy of the Neighbour, notwithstanding that the material was in the public domain, because the material included personal information that was published online without evidence that the Neighbour consented to this publication.

Additional footage was therefore not available in the public domain which includied the Neighbour’s name, age, and part of his residential address, and it is not evident that this information was in the public domain.

Was the invasion of privacy in, and proportionate to, the public interest?

The Guidelines:

• advise that the question of 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 the audience might be legitimately interested in or concerned about what is going on.

• outline that the principle of proportionality requires that any disclosure of personal information in the public interest should directly or indirectly contribute to the public’s capacity to assess an issue of importance to the public, and its knowledge and understanding of the overall subject.The information disclosed should be proportionate and relevant to those issues.

The Licensee submitted:

• there is a public interest in reporting certain occasions of anti-social and aggressive behaviour within the community, such as that depicted in the Viral Video. The prospect of one’s inappropriate conduct becoming widely known in the community acts to dissuade others from engaging in such conduct.
• there is no legal basis nor basis under the Code pursuant to which the Neighbour would be entitled to restrict the publication of his name or face in connection with a report of his conduct in these circumstances.

The ACMA accepted a public interest in:

• reporting certain cases of anti-social behaviour and that certain facts relating to this particular case made it suitable for reporting.
• providing information to the public about the circumstances and context in which the video became viral.

That however does not mean there is no basis under the Code under which the Neighbour would be entitled to object to the publication of his name and face in connection with the Report.

ACMA framed the issue as whether the disclosure of the neighbour’s personal information was proportionate and in the public interest.

In relation to the Presenter introducing the Report by describing the incident as ‘a petty neighbourhood dispute in a small community in regional New South Wales that went global’ ACMA considered that the disclosure of some of the personal information about the Neighbour relating to the Dispute was in, and proportionate to, the public interest as it contributed to public knowledge and understanding of the origins and outcome of the altercation depicted in the Online Video.

ACMA did not regard  broadcasting the Neighbour’s identity, his name  and the disclosure of part of his residential address was not proportionate to the public interest in this particular case. This was because the disclosure of this personal information did not assist the public to assess or understand the overall issue of public interest.

ACMA noted that the lack of obscuration techniques, such as blurring or pixelation, of the Neighbour’s face, meant that he was readily identifiable from the video that was broadcast. 

ACMA considered that while it was in the public interest to report on the altercation, there was no public interest reason to broadcast unobscured footage of the face of the Neighbour.

That part of the Report which indicated that the origin of the altercation was a neighbourhood dispute, the Neighbour expressed remorse about his conduct, and no action was taken by police that would have been sufficient to provide the public with an understanding of the issues and to promote the public interest in dissuading others from engaging in anti-social conduct.

The Report provided no evidence that the Neighbour posed an ongoing risk to public safety that might justify disclosing his name and details of his location in the public interest. Consequently, there was no legitimate reason to identify the Neighbour by name or to disclose his residential location to the public.

Conclusion

Accordingly, considering all the matters raised above, the ACMA finds that by broadcasting this information, the Licensee breached clause 3.5.1 of the Code.

ISSUE

ACMA gave little weight to the video the subject of the story having been put on line.  Nine’s argument was undermined by the Presenter naming the Neighbour, information that was not put on the video.  Further the lack of pixelation made it certain that the Neighbour was easily identifiable. 

The story itself was a fairly typical piece involving neighbour confrontation.  The level of violence in this report was greater than the norm. 

Notwithstanding the complaint being upheld there is little practical impact upon Nine for this breach.  As at 18 May 2023the Report remained on line. While ACMA’s analysis is thorough, and much more logical than say the AAT’s and VCAT’s in privacy claims, it is a regulator which doesn’t award damages and make orders that can be enforced.  Even after the decision was published Nine Representatives took issue with it and were happy enough to be quoted by the Australian.  That bespeaks a lack of concern about findings by ACMA.  Put another way, such an open disdain for a decision would not occur with a Federal Court order.  The consequences are potentially too severe.

If the statutory tort of interference with privacy is enacted there and a similar incident later arose videographer and the publisher could be sued.  And if the Federal Court found in favour of the complainant there would be be a monetary award and an injunction prohibiting the furhter publication of the video online. The likely defences of public interest would be in play however, as ACMA’s analysis makes clear, the finder of fact carefully considers the entirety of the circumstances.  It is not unusual for much of a report to be covered by a claim of public interest but other parts undermine that claim.  The entire report needs to be reviewed. 

The Australian reported on the ACMA finding with Staff at Nine’s A Current Affair program will receive privacy training after breach.  No surprises that Newscorp would give good coverage to an embarrassing result for its competitor.  

The article provides:

The media regulator, the Australian Communications and Media Authority, conducted an investigation into the Channel 9 broadcast which aired on March 21 last year and showed an online video of a late-night dispute between a man and his neighbour.

The TV segment – which remains online – was introduced by the then ACA host Tracy Grimshaw, with the story described by reporter Hannah Sinclair as “a petty neighbourhood dispute in a small community in regional NSW” that went “global”.

A representative of the neighbour made a complaint to ACMA about the broadcast and claimed it breached the neighbour’s privacy.

ACMA chair Nerida O’Loughlin said broadcasters must ensure they respect a person’s right to privacy when reporting on news and current affairs.

“Broadcasters may only disclose personal information without consent if it is relevant and proportional to the public interest,” she said in a statement.

“In this case our investigation found it wasn’t in the public interest for Nine to disclose the individual’s name and address because it wasn’t necessary to enable the audience to understand the overall issue.

“Even if material is already available in the public sphere, as some of this footage was, a licensee has an obligation to consider how broadcasting the material may further impact people’s privacy.”

The video by a 19-year-old man was posted on YouTube and went viral online.

It was filmed in the small regional NSW community of Ellalong and ACA’s report included an interview with the man and his neighbour that appeared to have been filmed on a mobile phone.

The vision included the neighbour entering the 19-year-old’s backyard by climbing over a fence and complaining about a floodlight.

A dispute took place between the pair and the neighbour was seen in the vision falling over and laying motionless – footage taken later showed a close up of the neighbour with a cut on his nose and blood on his face and hand.

A Current Affair staff including senior production employees and the journalist involved in the story will be trained about the privacy requirements of the commercial television industry’s code of practice.

A Nine spokesman said the network was “concerned about the way the ACMA has elected to interpret the privacy provisions of the Code in this instance”.

“This case involved a video which was public and had been seen by around 400,000 people prior to Nine reporting upon it,” he said.

“The neighbour was interviewed by Nine about his experience, and the fact his video went viral.

“The ACMA have determined that despite this, the man’s identity and actions should be protected by privacy.

“Nevertheless, we have agreed to train relevant staff about the approach taken by the ACMA.”