Broadcasters are required, like many businesses, to comply with applicable privacy laws. Depending on the broadcaster’s state and its specific activities, there could be more than a dozen applicable laws. In addition to the various laws, broadcasters also have to comply with the relevant code of practice.
The Australian Communications and Media Authority has recently published its Privacy Guidelines for Broadcasters. The Guidelines are intended to raise awareness of broadcasters’ obligations under the codes of practice and to assist broadcasters to understand their obligations. The Guidelines do not contain any obligations for broadcasters and so broadcasters are not required to comply with them. However, by following them, broadcasters will greatly decrease their risk of breaching the relevant code of practice.
The Guidelines deal with specific privacy issues that broadcasters face. They do not deal with general legal issues that businesses face across different industries. Therefore, in addition to following the Guidelines, broadcasters will need to continue complying with the applicable privacy laws such as the Privacy Act 1988.
The Privacy Guidelines for Broadcasters are intended to raise awareness of broadcasters' obligations under the codes of practice.
The codes of practice generally protect against broadcasting material that relates to a person’s personal or private life unless it is in the public interest to broadcast that material. The Guidelines set out what broadcasters should consider when deciding whether to broadcast such material. If a broadcaster broadcasts such material without the consent of the individual, the individual may complain to ACMA, which may investigate the complaint.
The Guidelines touch on a number of key issues for broadcasters and include a number of case studies.
A broadcaster will only breach its relevant code if the individual’s identity is apparent or can be reasonably ascertained from the broadcast. If the individual cannot be identified, the broadcaster will not breach its privacy obligations.
It may not be enough to pixelate an individual’s face or alter his or her voice if the individual’s identity is apparent by what is said in the broadcast.
Broadcasters also need to be wary of what information is available outside of the broadcast which could make the individual’s identity ascertainable from the description provided in the broadcast.
Personal information is any information about an identifiable person, including opinions about the individual. This can include information about where they live, their health, their family and relationships, any criminal history, their beliefs, their affiliations with political, religious or professional groups and other information.
Broadcasters should not intrude on a person’s seclusion. If the person would not reasonably expect to be observed or overheard and the broadcast of their activities would be considered highly offensive by a person of ordinary sensitivities, broadcasters should not broadcast the material.
Consent is the great coverall for privacy issues. If the person consents to the material being broadcast, then they cannot expect the material to remain private. However, the consent must be voluntary and informed. It must also be about the specific material and current. If consent is obtained by deception, the person has not really consented.
Children and other vulnerable people need special consideration when deciding whether to broadcast material about them. It may be inappropriate to broadcast information about a vulnerable person even if it would be appropriate for another person. Broadcasters should be mindful of the nature of the material and its potential consequences.
Broadcasters face unique privacy issues and have additional privacy obligations. It is important that broadcasters consider the privacy issues before broadcasting material which may be private. The ACMA Guidelines are a useful tool for broadcasters.
If you have questions regarding the ACMA Privacy Guidelines please contact.