McBride, Tim --- "News media and the Privacy Act" [1998] PrivLawPRpr 79; (1998) 5(6) Privacy Law & Policy Reporter 113

News media and the Privacy Act

Tim McBride

The right to freedom of expression is a fundamental human right. So too is the right to individual privacy. While it is not always the case that the interests or claims underpinning these two fundamental rights will be competing with one another, clearly there will be occasions when there is considerable tension between them. In the short life of the New Zealand Privacy Act 1993 (the Act), there has been no shortage of incidents where the Act has been portrayed —sometimes quite unfairly — as the ‘enemy’ of the ‘public’s right to know’.

Under the Act the news media are exempt from the operation of the Act in relation to their ‘news activities’. The only exceptions to this broad exemption are Radio New Zealand (RNZ) and TVNZ (for historical reasons predating the Privacy Act). These organisations are partially covered in relation to an individual’s rights of access and correction of personal information under information privacy principles 6 and 7.

Yet, despite the exemption for the great bulk of news media organisations, an overseas visitor with an interest in privacy law (or even a resident of NZ, for that matter), might well be forgiven for thinking that the news media were subject to the Act in all respects and locked in a never-ending struggle with the Privacy Commissioner to protect the ‘public’s right to know’. From the moment the National Party Government’s information privacy legislation was introduced — largely as a ‘sop’ to those concerned about the government’s proposed comprehensive information matching programmes — the NZ news media (with few exceptions), has waged an unrelenting ‘war’ on the Act and the principal official appointed to administer it — the Privacy Commissioner.

A leading business weekly, The National Business Review, once described the Privacy Commissioner as the ‘Privacy Ayatollah’. ‘Only now’, it said, ‘were New Zealanders waking up to the monster created by the Privacy Act’. On occasions, newspaper editorial writers appear to have conducted an orchestrated campaign to discredit the Act. For example, Wellington’s morning paper the Dominion, headed its lead editorial of 7 May 1998 ‘Privacy Law is an Ass’. The very next day, the lead editorial in Wellington’s evening newspaper, The Evening Post, was headed — ‘The Privacy Act needs Reform’. It should be noted that both papers are published by the same company, but have different editors.

One of the ‘high points’ of the media’s campaign against the Act was the publication of a glossy booklet, Privacy: A Need for Balance (1997). The 40 page booklet was jointly published by the Newspaper Publishers Association and the Commonwealth Press Union (NZ section). In it, leading media figures ‘vented their spleen’ on the perceived excesses of the Act in operation. ‘Can modern times have witnessed more wretchedly misbegotten statutes than the Privacy Act 1993?’ thundered Peter Scherer, former editor of New Zealand’s largest circulation newspaper, The New Zealand Herald.

It would be wrong, however, to dismiss the New Zealand’s news media’s trenchant criticisms of the Act out of hand. It is undoubtedly correct, in the words of leading radio journalist, Al Morrison, that ‘a growing culture of secrecy’ has been ‘created’ by the Privacy Act. According to Wellington editor, Karl du Fresne, this new ‘culture of secrecy undermines freedom of information by stealth rather than sudden dramatic bursts’. Certainly, public and private sector agencies have used the Act skilfully on occasions to deny interested members of the public (and the news media on their behalf), access to personal information relating to particular individuals, which should be in the public domain.

‘Because of the Privacy Act’ has become a convenient ‘catch-cry’ of agencies seeking to avoid public scrutiny when controversial issues involving personal information have arisen. Somewhat belatedly, the Privacy Commissioner warned that agencies invoking the Act inappropriately would be challenged — or at least receive ‘a call from the Privacy Commissioner’s office’. In earlier times, the Privacy Commissioner had shown a reticence on occasions to clarify publicly situations where the Act appeared to have been invoked quite improperly. This reticence was justified by the Commissioner as being necessary if his office was to be seen as impartial, should any complaint be made to it following a controversial incident.

It is true that the Privacy of Information Bill 1991 did not provide an exemption for the news media. However, that changed following scrutiny of the Bill and submissions on it by the newly-appointed Privacy Commissioner, before the Bill was enacted in heavily modified form in 1993.

In the review of the Act just released, the Commissioner notes that the news media ‘lobbied strongly’ against the Privacy of Information Bill 1991. At that time, the Commissioner took the view that ‘an exemption for the news media was appropriate because ... there was perceived to be a significant conflict between the privacy law and the legitimate activities of the news media ...’ (para 1.4.51). The exemption was considered justified because it ‘... would ensure that the concerns about constraints on the news media, whether or not well founded, would not eventuate ...’ (ibid).

The Commissioner was concerned that the information privacy principles contained in the Privacy Bill ‘... in unmodified form were probably not suitable and would not get to the heart of many news media privacy issues ...’. The fact that the electronic news media were already subject to a statutory privacy regime in the form of the Broadcasting Act 1989 was a relevant consideration. While the print media were not subject to a similar statutory regime, the Commissioner’s view at that time was that ‘newspapers had not exhibited the privacy invasive practices witnessed in some overseas jurisdictions’. No reference was made by the Commissioner to what many regard as the most privacy-invasive segment of the NZ news media — the weekly magazines seemingly catering especially for the interest of young women.

Whether the exemption for the private sector news media in relation to their ‘news activities’ should continue indefinitely was left unresolved. When the Act was enacted, it appeared that the NZ media were placed on a ‘good behaviour’ bond. Any copying of the privacy-invasive activities of their British or Australian ‘cousins’ might lead to their exemption being lifted. The Minister of Justice, speaking during the second reading of the Privacy of Information Bill in 1993, took the view that one of the consequences of the regular reviews of the Act ‘should be gradually to bring within the scope of the law ... [the news media], given the importance to them of the proper handling of personal information’.

In his Review report, the Commissioner notes that ‘a complete exemption for the news media is not the only approach that can be taken to reconciling the competing human rights and public interests’. Other alternatives include:

• An exemption for those parts of the news media for which adequate alternative statutory (that is, the Broadcasting Act 1989 in relation to the broadcast media); or self-regulatory (that is, the Press Council in relation to newspapers) redress is available.
• A partial exemption whereby principles such as 5, 8 and 12 apply to the news media but not the other principles (that is the collection, access and correction, use and disclosure principles would not apply).
• A right of access to published information about oneself, but not to unpublished information. (The Commissioner notes that some newspapers in NZ already offer Internet search facilities which make some material readily retrievable. He observes that ‘these could perhaps be linked to a correction statement facility as well’.)
• Apply the 12 information privacy principles to the news media, but consider whether any of them would need special exemptions written into them to meet legitimate news media concerns.
• Apply the principles in unmodified form and if problems eventuate, provide for the Commissioner to grant exemptions under s 54 of the Act, or develop a news media code of practice under s 46.
• The principles not apply to the news media unless, and until, a code of practice was issued.
• Apply a different set of information privacy principles to the news media.

The Commissioner considers that several of these options could be feasible. The only one he would completely rule out would be to ‘apply the principles in unmodified form to the news media’ (para 1.4.54). He does not support ‘any legislative move unless all prospects of satisfactory self-regulation have been exhausted’.

In his report, the Privacy Commissioner refers to the fact that ‘in Europe the relevant data protection laws normally apply to the news media’ (para 1.4.49). However, he notes, that ‘... interestingly the Europeans have moved closer to the NZ situation with the European Directive on Data Protection anticipating the creation of partial exemptions from data protection laws throughout all EU countries’ (para 1.4.56).

The Commissioner’s clear preference is for the print media to give urgency to the establishment of an adequate system of self-regulation (for example, a revamped Press Council). The Commissioner observes that:

... since 1993 the practice of certain magazines to publish private details about individuals [for example weekly women’s magazines]. At present, these magazines ... have taken no action to establish any sort of self-regulation notwithstanding that many of them are published by companies which also publish newspapers that are also subject to self-regulation through the Press Council ... (para 1.4.56).

The Commissioner considers that there are ‘... important privacy issues and risks in relation to news media activities ...’ (para 1.4.61). The Privacy Commissioner considers that ‘... an Industry Ombudsman scheme may work best at a low level and enable the Press Council to deal with unresolved complaints ...’ (para) 1.4.61). It should be noted that a number of ‘Industry Ombusman schemes’ already operate in NZ, for example, the Banking Ombudsman appointed by the Bankers Association. The effectiveness of these various private sector Ombudsmen is difficult to detemine.

The code of practice ratified by the UK Press Complaints Commissioner on 26 November 1997 is seen by the Privacy Commissioner as providing a ‘good basis upon which to model a NZ code’ (para 1.4.60). The Commissioner doubts that the NZ Press Council, ‘would presently meet the adequacy tests expected by the EU’ (para 1.4.59). While the compensation limit of $5,000 presently contained in the Broadcasting Act 1989, in relation to the broadcast news media might provide a possible precedent, the Commissioner is of the view that a new mechanism for determining compensation would need to be developed, possibly involving panel of assessors. While the latter idea has merit, the suggestion that the maximum possible quantum for successful privacy complaints to a revamped Press Council should be $5,000 strikes one as miserly, to say the least.

In relation to the partial application of the Act to RNZ and TVNZ — something which would not continue, were they to be privatised — the Commissioner notes that complaints against these two media organisations have been infrequent and ‘usually fall foul of the news media exemption’ (para 4.4.49). The Commis-sioner notes that while RNZ and TVNZ ‘remain subject to the access and correction regime under the Privacy Act, they enjoy a special protection whereby they can protect their sources by withholding information where either:

• the information is subject to an obligation of confidence; or
• the disclosure of the information would be likely to prejudice the supply of similar information, or information from the same source s 29(1)(g) (para 4.4.50).

While these provisions provide considerable protection for RNZ and TVNZ journalists, the Commissioner states in the Review that he:

... can anticipate circumstances in which (he) would need to investigate a complaint about the withholding of information against TVNZ or RNZ where it is necessary to question a journalist as to whether information is subject to an obligation of confidence (para 4.4.51).

There is a mistaken belief in some quarters that it is somehow improper even to ask a journalist as to whether information is held or whether that information is subject to an obligation of confidence or is necessary to be withheld to protect sources of information. Quite clearly to do my job of investigating complaints these questions must sometimes be asked. It is no threat to press freedom to simply pose such questions. It is open for the journalist, in appropriate cases, to assert that the information held is subject to an obligation of confidence or that sources of information would be jeopardised if the information were to be released ... (para 4.4.52).

It is clearly in the public interest to have a free and fearless news media. However, this is not under threat in NZ from the access provisions of the Privacy Act and it is ridiculous to suggest that it is placed in jeopardy by questioning by the Privacy Commissioner to see whether a withholding ground applies ... (para 4.4.53).

Whether there will be any change to the position of the news media vis-a-vis the Act remains to be seen. Clearly the Commissioner does not feel optimistic:

... The stridency of the reaction of the press to any criticism or their self-regulation, their pathological opposition to privacy laws, unmatched by any other industry, their high error rate on reporting privacy issues, and the personal attacks on my office will doubtless occur in their editorial columns. Editors feel vulnerable to laws which they see as making news gathering more expensive as their budgets are cut ... (para 1.4.62).

Tim McBride, Senior Lecturer in Law, University of Auckland.