KIM WILLIAMS: Freedom of speech is a fundamental pillar of democracy and the shield provisions that apply to all journalists under the Privacy Act from its enactment in 2000 are fundamental to journalists doing their job. If those rights are threatened, we threaten the very fabric of democratic life in Australia, if you value independent examination, interrogation and review of all of the processes of our democratic life. These are not mild matters. They're being painted as if in fact this is just some mild action. It's not a mild action. This is action of profound seriousness.....I think most people who describe this as reform lite are ignorant of the shield provisions that relate to the Privacy Act. I think they're quite ignorant.....No-one is talking about removing shield provisions.
Williams' musing that journalists seem to require and deserve a privacy free zone in order to protect the fabric of democracy is inconsistent with what media organisations and journalists have been telling us for years: that they respect privacy, can judge where the public interest lies, and we best leave it to them to get on with it and to get it right.
The exemption from the Privacy Act provisions that relate to the obtaining, keeping and disclosing of personal information by a media organisation ‘in the course of journalism’ is, and always has been, conditional.
It's just that the conditions aren't onerous although clearly to the media's liking: the organisation must make a public commitment to observe standards of privacy, and the standards must be published in writing.
The reality is that print media organisations are subject to self made industry rules regarding privacy, enforced as weakly as they choose.
Everyone who has looked at this closely except media organisations and some journalists consider it isn't good enough.
The Australian Law Reform Commission after 28 months research and consultation concluded for example in 2008 (as set out here in Chapter 42 of the report) that in the absence of a definition, ‘in the course of journalism' is too broad and capable of extending the exemption beyond the news and current affairs functions of the media; the existing self regulatory scheme conducted by the Australian Press Council lacks key criteria and there is no independent assessment of the standards; the model itself is inadequate and lacks strong enforcement mechanisms. It recommended modest changes.
The Finkelstein inquiry looked into standards more broadly and concluded there is a general problem, that the media had failed in its self regulatory efforts and that there is no persuasive evidence that it can or will remedy the situation. The assessment was based largely on evidence from the Australian Press Council and lessons drawn directly from history. It recommended a statutory body.
The Convergence Review concluded Finkelstein got the diagnosis right but thought the media should have another crack at improving things itself before the big stick came out.
Former Prime Minister Paul Keating put the detailed case in 2010 for the media to stop sheltering from privacy behind the cloak of the Fourth Estate, citing in support Ken McKinnon former head of the APC, David Salter long time producer of Media Watch, journalists such as Jack Waterford and academics such as Denis Muller to mention just a few. (Richard Ackland was sounding a little Keatingesque last week: "The self-righteous bloviating from press interests, and the shrill coverage from News Ltd papers in particular, leads to the suspicion that Senator Conroy can't be far wrong with his tiny package of media reforms.")
Interest in the media in this issue since the ALRC report in 2008, discussion of the tweaking proposed by the ALRC, or a recognition that there is an issue that requires consideration:
Government marks for informing public discussion, putting ideas out there, acting in good time: the same.
The government is now proposing that news media organisations remain outside the provisions of the Privacy Act on condition they comply with adequate standards administered by a self regulatory body such as the Australian Press Council. An independent statutory officer would declare whether it was up to the job based on a checklist of factors. The statutory officer would keep an eye on how it goes with authority to in certain circumstances revoke a declaration authorising a self-regulatory body.
How threatening to the fabric of democracy is that?
Maybe Williams is concerned to some degree that if the legislation goes forward the definition of a news media organisation, somewhat in line with the ALRC recommendation would exclude from the Privacy Act only those parts of the News Ltd empire involved in news or current affairs activities, clearly leaving the rest subject to some scrutiny by the Privacy Commissioner?
The essential elements of the proposed scheme are:
1. A ‘news media organisation’ will only continue to qualify for the ‘Journalism’ (both terms defined) exemption from the privacy obligations imposed under the Privacy Act 1988 , if it is a member of a declared ‘news media self-regulation body’ and has not had its rights as a member suspended.
2. The Public Interest Media Advocate has powers to declare a body a 'news media self-regulation body' and to revoke a declaration, but not otherwise to be involved in its affairs.
3. In making a declaration the PIMA must have regard to a number of matters including the extent to which the body has arrangements in place to deal effectively with complaints; and the extent to which the body corporate’s standards deal with privacy, fairness, accuracy and other matters relating to the professional conduct of journalism.
More detail from the bill follows. The reference to 'community standards' (indicated in bold) as a relevant matter is vague and should be sharpened up or dropped. And yes the revocation provisions could do with some work.
But it's not the end of democracy or anything like it. Rather a strong pull and some push to get the media to take privacy and self-regulation seriously.
Extracts from News Media (Self- Regulation) Bill
(2) The PIMA must not make a declaration under subsection (1) in relation to a body corporate unless: