Privacy, media and politics: What are our rights?

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(Image by @chrisjmit via pixabay)

Privacy is being eroded by media and government, writes citizen journalist Rosie Williams.

PRIVACY HAS many faces. We all hope to keep particular thoughts and actions to ourselves, we may wish to keep certain images private, our whereabouts or health issues to ourselves or our finances confidential.

All of these types of privacy issues are challenged in different ways in the digital age. 

Unsettled as I am by the extraordinary attack on Denise Shrivell by The Australian for her support of anti-racism campaigners Sleeping Giants Oz, I am currently more privacy-conscious than might otherwise be the case.

Given that it was the list of parliamentarians declaring receipt of free subscriptions to Foxtel generated by my site, ausgov.info, that made the front-page diatribe, I’ve been wondering if I’ll pick up the paper one of these days to find a similarly defamatory story on myself or any one of a number of the many Twitter friends I regularly interact with.

So, when I found myself being photographed by a man at the local library without notice or consent, I began to wonder: where does our right to privacy begin and where does the media’s or anyone else’s right to intrude begin?

A similar incident played out within my earshot in a Sydney library a couple of years ago. The woman who was taking photos – which could be used for identity fraud, for example – was asked by staff to delete the images after the victim, another woman, complained. The quick-thinking staff handled the tricky situation by explaining the council policy of no photography without consent in all their properties — an approach which overcomes the lack of legislative protections for individuals in such circumstances.

As lawstuff.org explains, 'in Australia there is no general right to privacy.' As such, there are no remedies or limitations under the federal Privacy Act 1988 on people acting in a private capacity and no law to stop images being taken or used without our consent. That is, of course, unless they are intimate images which fall under new and separate image-based abuse laws.

While there have been state and territory laws on the books for some time that criminalise the sharing of intimate images without consent, this situation may not apply in all cases.

While not nearly as horrific, the use of non-explicit images – for identity fraud or in defamatory campaigns against activists – can still cause considerable damage to reputation, one’s finances and individual privacy. While people will probably have heard of the Privacy Act, few are aware that this law contains specific carve-outs for both political parties and media organisations.

In effect, this means that both political parties and the media have unilateral power over your personal information or non-intimate images. In these cases, there are no remedies against perceived intrusions or privacy breaches.

In 2000, the Privacy Act was extended from the public application to encompass the private sector. Unsurprisingly, the media sought – and was granted – extensive exceptions.

According to academic Roger Clarke (2012):

The new law merely required media organisations to be “publicly committed to observe [published] standards that deal with privacy in the context of the activities of a media organisation” (Privacy Act, s.7B(4)).

The audacity of the exemption was, and remains, extraordinary. It grants media organisations not only freedom from regulation, but also the freedom to set any ‘standards’ that they like, provided that they purport to “deal with privacy”, without any external standards or tests of credibility, or even consultation.

Naturally, all media organisations were happy to comply with this embarrassingly pro-business, anti-consumer provision."

Clarke told IA that most lobbying by the media is done covertly. The exception to this was when Labor tried to introduce a privacy tort in the wake of the News of the World phone-hacking scandal

"It was comprehensively dumped on by the media … The Australian was full of outrageous misinformation, penned not be its letter-writers but by pseudo-journalists on their staff."

Apart from defamation laws, which are more likely to be used against the vulnerable than in our favour, the only protection we have as individuals against the media are the codes of conduct each sector of the broadcasting industry must supply to the Australian Communications and Media Authority (ACMA). These are documented in an online database.

ACMA provides a complaint process to the public for breaches of these standards:

'Where a written complaint has been made to the particular station, and: the station does not answer the complaint within 60 days; or the complainant is dissatisfied with the station’s response, ACMA must investigate such a complaint unless it is satisfied that the complaint is frivolous, vexatious or irrelevant.'

Like the media, political parties are also excluded from the Privacy Act. An interesting consequence of this is that their membership lists, if managed by the party organisation itself, are not subject to the protections of the Act.

The Office of the Australian Information Commissioner confirmed via email:

'As you noted, registered political parties are exempt from the Privacy Act (the Act) as they do not meet the definition of an organisation in s 6C of the Act. Further, the acts and practices of political representatives are also exempt under s 7C.'

Whether the handling of political party membership lists would be covered by the Act is dependent on who is handling the information. If the information is handled by a political party, then it would generally be exempt from the Act. However, if the list is being handled by another organisation or agency that is not a registered political party, their handling of personal information may be covered by the Act.

Whether or not the Act applies would depend on whether the organisation handling the list has a turnover of over $3 million. With the Liberal party’s recent acquisition of i360 software, which integrates data from external sources with social media data, there are questions about whether any of this information which would be covered by the Privacy Act at its source, becomes free of the Act’s provisions once in the hands of our political parties.

As recent events have made apparent, the line between politics and the media in this country are blurred. Any collusion between these industries, neither of which are subject to the Privacy Act, should be of grave concern to us all.

Rosie Williams is a citizen journalist who runs privacy workshops at rosiewilliams.com.au. You can follow Rosie on Twitter @Info_Aus.

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