‘Deeply problematic’: Media companies slam Privacy Act review

Australia’s largest media companies are warning the federal government its proposed privacy law reforms would allow affluent people, politicians and celebrities to avoid scrutiny and could inundate the court system.

The Australia’s Right to Know coalition, a group of major Australian publishers, fiercely opposes proposed changes to the Privacy Act and claims it would have a “devastating impact” on journalists’ ability to do their jobs. In a submission to Attorney-General Mark Dreyfus’ review of the act, the group argues the government’s approach to reform is not evidence-based and misunderstands the role of news reporting.

Attorney-General Mark Dreyfus (second from right) with media leaders (from left) James Chessell (Nine), Lenore Taylor (Guardian), Peter Greste (Alliance for Journalists’ Freedom) and Erik Jensen (Schwartz Media) in February.Credit: Alex Ellinghausen

“Increased regulation will lead to a suppressed media, which violates the implied freedom of political communication,” says the submission from the group, which includes Nine, which is the owner of this masthead. The group also includes the ABC, Guardian Australia, The West Australian and News Corp Australia, owner of The Daily Telegraph, Herald Sun and The Australian.

The Attorney-General’s Department released in February its review of the Privacy Act, a report that proposes a way for people to sue for serious invasions of their privacy. The department has sought submissions in response to its set of proposals from the sector.

The changes are being considered as a way to better protect Australians from intrusions into their homes and digital lives, but similar laws overseas, such as in the UK, have allowed bankers and celebrities to suppress true but embarrassing stories such as of affairs and drug use.

Australia’s major media bosses united in Canberra in February to warn the government about the proposed changes, which they believe could be more damaging to journalism than the defamation laws that exist across the country.

The companies’ biggest concern is the introduction of a statutory tort for serious invasion of privacy, which the Australia’s Right to Know coalition claims would damage the ability of a journalist to investigate and report stories of public interest, and the ability to tell personal stories or stories of workplace harassment or domestic abuse.

The tort, in its current form, would allow people to sue for breaches of privacy that are intentional or reckless. Media lawyers are concerned the law would be weaponised by wealthy, powerful and influential people who would seek injunctions to stop the reporting of unflattering personal details. If implemented, the tort would mean a person could prevent a profile piece, an exposé or a dramatised version of their life from being published or aired. Privacy is considered any form of personal detail – everything from a relationship to an occupation or the location of a home.

“If introduced, the proposed tort will result in an unacceptable policy setting and a serious risk of chilling public accountability, as its operation will undermine journalism and curtail freedom of expression,” the media’s submission says.

The lengthy submission from the media coalition is largely focused on the harm the proposed changes could cause without specific exemptions for journalists (journalism is currently exempt from the Privacy Act in recognition of the public interest it serves), as well as the additional burden the amendments would have on the courts.

“The proposal to limit the journalism exemption to organisations who comply with a privacy standard that is either overseen by a recognised oversight body or otherwise assessed to ‘adequately deal with privacy’ is deeply problematic,” the group says.

“There is a significant risk that these standards will stray into editorial decision-making ... including matters of corrections and accuracy.”

The coalition has also raised concerns about a change that would give the Office of the Australian Information Commissioner the ability to use its powers to issue warrants to journalists and media companies.

James Chessell, Nine’s managing director of publishing, said: “I think there is a risk the proposals could conflate genuine data privacy concerns with measures that would restrict the flow of information for legitimate journalism.

“It’s not clear what journalistic problem these measures are going to solve.”

Dreyfus is expected to formally respond to the report and indicate which of the 116 proposals the government will implement in amending legislation later this year.

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