Ten tips on privacy compliance for content makers

In this post I explain briefly why privacy is a growing compliance issue for content makers and publishers, and give ten tips to miminise legal and reputational risks.

In a recent case Gina Rinehart sued Channel Nine over the miniseries “House of Hancock”. Among her legal claims was that her privacy had been invaded by the inaccurate dramatisation of her family life for television. The case settled before this US-style privacy claim could be tested in court. However, this and other recent Australian cases suggest that a test case to establish a new tort of privacy in Australian law may one day succeed.

In addition, two recent decisions by industry code bodies have found that media publications using video or photos invaded the privacy of identifiable persons.  The Australian Communications and Media Authority (“ACMA”) found that a tv news report breached the privacy of an unnamed schoolboy by showing a Snapchat video. And the Australian Press Council found that “The Bachelor” host Osher Gunsberg’s privacy had been invaded by an unflattering paparazzi shot of him on holiday in Bali. In both cases, the code bodies determined there was no public interest justifying what was shown.

In Australia there is as yet no tort of privacy giving rise to court remedies such as damages. Overseas, jurisdictions such as the UK now have fully fledged privacy laws which regularly result in legal action against publishers. Australian privacy law is moving more slowly, but the courts and code bodies appear to be drawing increasingly on these overseas decisions for inspiration.

Privacy concerns can arise in any form of content where real people are identified in relation to personal matters such as their family life, health, relationships, or religion. Privacy can encompass a number of different concepts, such as physical intrusions into a person’s life, the disclosure of personal information without consent, publication of photographs or video of them taken from their social media feeds or without their knowledge or consent, or personal harassment. Some of these areas are covered by existing legislation in Australia, such as trespass, copyright and confidentiality, or by protocols such as Indigenous cultural protocols. Nevertheless, there are suggestions that more regulation is needed, and the ABC program “Media Watch” regularly calls out alleged ethical breaches of privacy by the media. Content makers and publishers in all forms of media and the arts therefore need to be aware of “privacy” as a reputational and ethical issue, as well as one of potential exposure to a legal test case or code breach finding.

While a clear set of rules on “privacy” is difficult to pin down, here are some general tips for content writers, producers and creators to consider when thinking about privacy issues.

  1. What privacy regime applies to your content? Industry codes of practice and privacy guidelines and protocols are the first place to start.  For example, ACMA’s Privacy Guidelines for Broadcasters, the MEAA’s Journalist Code of Ethics, or the Australian Press Council Statement of Principles. Be familiar with any that apply, how they are currently being interpreted, and the consequences of breach.
  2. Will consent be obtained from the subject? Getting consent will solve most privacy related issues. If consent is to be sought, consider how will it obtained, and what will be disclosed to the person about the project. Don’t make misleading statements. In news and current affairs reporting consents are generally not written, but are generally implied by the context (such as cameras rolling in a studio). In other contexts such as commissioned documentaries or reality tv shows, written consents are common, and participants may be told quite a lot about the project before signing up. If written consents are to be used, tailor them to the project, and ensure they are signed as soon as possible.
  3. Can consent be withdrawn? Consider whether a participant “should” be able to withdraw consent to be involved. If so, when is too late? If withdrawal is not feasible, this should be clear from the context, or stated explicitly up front. A decision to proceed after consent has been purportedly withdrawn can have reputational and potentially, legal, consequences and should be handled carefully in consultation with other parties to the project.
  4. If no consent is obtained, will the person be identifiable? De-identification is another strategy to avoid potential privacy related issues. Whether a person is “identifiable” however, can be a tricky issue and needs to be carefully considered in the context.
  5. If the person is to be identified and no consent has been obtained to include their sensitive personal information, what is the public interest in publication? Journalism relies on the public interest to defend certain (ethical) breaches of an individual’s privacy. This ethical position is also codified in some industry codes of practice. The answer to what is in the “public interest” can depend on factors such as who the person is, the kind of content and its purpose. Proportionality may be another issue. For example whether the use of an accompanying image, such as a photograph or video, is really necessary to the story, and proportionate to the invasion of privacy that may be involved.
  6. Act fairly: Collection of personal information should be fair, having regard to journalistic ethics and any applicable code of practice.
  7. Act legally: Of course.
  8. Children and vulnerable people Take special care with children or vulnerable persons. The courts and code regulators are likely to take a more protective approach to the privacy of these persons. Care should be taken to consider the potential consequences of publication even where a parent or guardian has consented on behalf of the person. Younger children should not be interviewed alone.
  9. Data security: Ensure that personal information is kept secure.
  10. Check your policies: Content producers and publishers should consider whether they are covered by the journalism exemption in section 7B(4) of the Privacy Act, and review their insurance coverage for privacy claims.

This is a general summary only and is not legal advice. To discuss your particular queries, or to arrange a training session on privacy and other media content compliance issues, contact me.

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