Astonishingly there is no definition of journalism in Australian law. That’s one of the revelations in the Australian Law Reform Commission’s paper on privacy law reform and it’s of great relevance because the Commission wants to define journalism in a way that will reduce the media’s capacity to report freely.

The ALRC’s Review on Australian Privacy Law, released on Wednesday, reveals that journalism is not defined in the Privacy Act, nor is it defined in “other federal state or territory legislation, privacy legislation in comparable jurisdictions or Australian case law.”

But, if the Commission gets its way, that will change, and in a way that the media won’t like.

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Media organisations currently have an exemption under the Commonwealth Privacy Act, meaning they can breach someone’s privacy so long as the breach occurs “in the course of journalism” and the media outlet is operating under its own approved privacy standards.

The Commission wants to set a higher test for the media so that it only gets an exemption under the Act when it is acting in the public interest.

This is seen by many as a reaction to the removal of the very same public interest test in the defamation law of some states, following the introduction of the “truth alone” defence in the uniform defamation code introduced last year.

In other words, because it’s now easier to defame people, privacy laws should be tightened to give the public greater protection from prying reporters.

To give the public this extra protection, the Commission has proposed tinkering with a definition of journalism that had been proposed in the 2004 Privacy Amendment Bill but never made it to the final Act. It wants to remove the word “information” from that definition.

The Commission says this will “ensure that the exemption is only available in relation to news, current affairs and documentaries.” In other words an entertainment program probably would not have justification for breaching someone’s privacy.

That might be fair enough. But what about a program or website that is set up to inform but is not classified as news, current affairs or a documentary? In every day language, this would be described as journalism but under the proposed rules may not get an exemption under the Act.

The Commission also wants to see media organisations beef up their privacy standards so that these codes don’t just “deal with privacy” but do so “adequately,” presumably making it a tougher test for the media. Thankfully it has shied away from recommending a government Media Complaints Commission but has warned that if media organisations’ privacy standards are not up to scratch they could lose their legal exemption and be liable to privacy breaches like anyone else.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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