Aut journalism Law & Ethics Privacy & the Media 4 April 2011 Marie from here Introduction [Slide 1 : Title slide]

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AUT - Journalism Law & Ethics
Privacy & the Media
4 April 2011
Marie - from here

Introduction

[Slide 1 : Title slide]


  • Glad to be here and to have the opportunity to talk about a fast-developing area.

  • Mix of legal insights, examples and context that we hope will be useful for your course work and your future career.

  • Electronic and online media throw down new and significant challenges for journalists. That’s very true in the area of personal information and privacy, where so much of our lives are documented online, on camera, or in databases.

  • Intro: Annabel – responsible for public affairs, OPC

  • Technology a helpful thing – in that it raises the community’s awareness – and raises journalists’ awareness of the way people’s information is circulating. Expanding reach of technology – in part, leads to a wider view.

  • Current laws and regulatory framework will take you so far, but you – as the actors in this new environment – need to be ready to shape your own professional standards and ethics.

  • You need to take the time to figure out where the lines are – because I would argue that there are lines to cross.

  • Don’t think that the industry has got it all figured out. It hasn’t. Your bosses are just getting to grips with these issues.

  • Feel free to interrupt – will look forward to hearing your thoughts and reactions. We see many overlaps between your work and our work and areas of interest.


Privacy and Media - where is the overlap? How does privacy fit in?

[Slide 2: Prying Mantis]

  • News and journalism – about people; information and stories about people; events and how those news events impact upon people.


  • Privacy - all about information about people – “personal information”. Both connected to information and stories about people.

Starting point – need to be able to work together

[Slide 3: Information booth]


  • We are both seekers of truth, accuracy and fairness, defenders of citizens’ rights

  • we are allies not antagonists.

  • there are great stories out there

  • privacy is an area where many of stories will be written eg Paula Bennett (beneficiary details – Natasha Fuller), Facebook, cloud computing, ID fraud, marketing, internet generally in the digital century).

  • Privacy and journalism – both are concerned with:

    • Information

    • Accuracy

    • Power / Empowerment


But first, look more closely - what is privacy?


  • Core human value.

  • Difficult to define: legal academic Daniel Solove says privacy is a “concept in disarray.”1

  • Control over information about you, respect for you as an individual; information that identifies you and shapes your identity personal dignity; respect for individuality, “safe” space – ability to be free.

  • A protected human right (Universal Declaration of Human Rights) - Article 12 - No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. 2
  • Freedom of expression also protected - Article 19 - Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.


Global environment / International context

[Slide 4: Digital shadow]

  • Privacy an international issue.

  • 800+ international delegates to annual Privacy conference

  • Growing international networks: GPEN / APEC / CPEA

  • Legal frameworks - conventions etc – 10+

  • Privacy a defining issue for big tech businesses - Google, Facebook; Microsoft – privacy recognised as a current and key business issue. Why? Maintaining trust of users is a real concern – loss of their trust represents dollars and profit potentially down the drain. Personal data = profit.

  • Obama – recent statement about new data privacy law aimed at protecting consumers against online tracking and data collection by advertisers.3 Joel Reidenberg’s comment on this: “I think there is recognition that data has been such a fuel for economic activity but in a one-sided way.” (significant move.)

  • Fast moving area – lots of developments – often technology-driven.

  • Stuff story – goes worldwide – you are writing for a global audience. Don’t forget it.


Annabel - from here

Privacy in the media - protected in different ways

[Slide 5: Pillars]
  1. By legislation / statute





      • The Privacy Act itself - various codes of practice (Health; Credit reporting; Chch earthquake)

      • Privacy Commissioner required to have balanced approach - Commissioner can’t just focus on “privacy” to the exclusion of everything else.
      • By law, the Commissioner is required by law to have regard to interests that compete with privacy (Privacy Act, section 14): including: the free flow of information;


      • Must take into account international obligations accepted by New Zealand, eg. the international technology of communications.

BUT - media are not covered by Privacy Act


      • Privacy Act doesn’t generally cover the media - in terms of its “news activities”

      • Upshot is that journalists don’t need to worry too much about the Privacy Act itself in their day-to-day work.

      • But – don’t’ think that means that it’s open slather!

      • Privacy Commissioner can still look at the media in relation to practices that affect the privacy of individuals (section 13 powers – eg re: photographs of elderly people in NZ Nurses Organisation magazine.)

      • And there is law. You are still affected by law and professional ethical standards: -



  1. By court made law (Common Law)




  1. By codes of ethics

    • Broadcasting Standards Authority




  1. By industry self-regulation

    • Press Council

    • Editorial policy

    • Journalists’ own ethics



Marie - from here
With power comes responsibility - Role of media in privacy issues

  • Power imbalance - might not feel like it, but your power is huge. That brings with it a duty to be responsible. Don’t forget that the individual person affected by a story has an uphill battle.

[Slide 6 & 7 : Pic & Quote]

Journalism’s most important work is to lubricate the machinery of a democracy. Power over information means power itself. And if privacy is to mean anything in this “information age” it must mean a measure of control – not total control – for the individual over his or her personal information.


Paul Chadwick - former journalist at The Melbourne Age; The Sun; Victorian Privacy Commissioner; and now Director of Editorial Policy at ABC.4
Ethics in the new order – Where do you stand?


  • Example: Andrews v TVNZ (2006). Car crash victims - TV coverage of accident victims Couple did not know they were being filmed and were not told before the broadcast. Distressed conversation between husband and wife.

  • Example: Media coverage of Christchurch earthquake victims and their family members – online debate: Tim Watkins, Nicole Moreham etc.

[Slide 8: Google / God]


  • Example: Michael Laws: relationship with Jacqueline Sperling (reported 14 Aug 2010). Sperling’s Facebook page was used to find her home address and then door-stop her:
    • How? Picture editor Chris Marriner obtained access to her Facebook page through one of Sperling’s online “friends”. Facebook’s privacy function allow users to leapfrog through people’s social networks. This gave us access to her online musings, updates on life and photographs of her family. Based on comments made online, Marriner was able to narrow the geographical location of her home to two suburbs in East Auckland. … the photographs showed she lived on a cul-de-sac. Marriner pulled up Google maps and noted each cul-de-sac in those two suburbs. By then, a reporter and photographer were in the car heading for East Auckland. Marriner walked those streets – virtually – before they arrived, using Google Street View to compare the Facebook photographs with the houses on the streets. By cross-referencing information from Facebook and Google applications, he put our people on Sperling’s front doorstep. (David Fisher story in Herald on Sunday)


  • Example: Mark Hotchin – House in Hawaii located on Google StreetView and tracked.

  • Example: Photo taken from Facebook page by Vodafone and used in their marketing campaign without the person knowing about it. First thing she knew, she was up on a billboard.


Looking at the principles at stake: - What interests need to be balanced?
Freedom of speech & privacy



  • Freedom of speech and privacy - actually complementary - one doesn’t trump the other.

  • Having a free press is one aspect of freedom of speech within a democracy. Another component of freedom in that same democracy is having adequate personal privacy. Incursions into an individual’s existence by control or monitoring by government or other agencies, erodes our ability to act according to our wishes. (There are great stories for you here.)

  • Only have to think of undemocratic regimes around the world – where there is a totalitarian regime: little privacy; little freedom.

  • Think of the limitation on free speech and on privacy that we now know went on in East Germany – Stasi files: “The Lives of Others.” Neighbours and friends encouraged to inform on each other.

  • On occasion, it may not be government or business that intrudes but a journalist who prioritises one interest over another when reporting a story. It is easy to justify intrusion into one person’s life “in the interests of free speech”. But whose freedom is being exercised? Is society always the richer for knowing the detail of another individual’s life? How well are the interests of wider society being served by the choices being made?

  • Bruce Phillips quote (ex-newspaper editor and former Canadian Privacy Commissioner):

[Slide 9 & 10 : Pic & Quote]

Defenders of a private life are often accused of interfering with an “open” society, as if freedom of information and a free press obliges everyone to live in metaphorical glass houses. Certainly government must be open and accountable to its citizens... And the media has the right and responsibility to report on matters of public interest... But there is no obligation in a free society for individuals’ lives to becomes an open book for government, the media, or their neighbours. Some evidently choose to bare more than many of us care to know … But what we share about our lives, and with whom, are choices only the individual can make. Respect for one another’s boundaries is the hallmark of free societies.

Annabel - from here
So how well does it work in practice? - Not always that well

[Slide 11: Blame the Privacy Act]

BOTPA examples: Because of the Privacy Act

BOTPA example - Do buildings have privacy rights? - Timaru Herald, 10 March 2011: “Site of earthquake damaged building gkept secret.”


  • Journalist had asked Council for information about the safety of a certain building in Timaru. Council officer refused the request – saying that he couldn’t give out that information “Because of the Privacy Act.” Bunkum.

  • So what is the law?

    • Request to local Council for information – so covered by Local Government Official Information & Meetings Act (LGOIMA).

    • Privacy Act not relevant at all.

  • OK – so council officer got it wrong. No big deal. But we spent time talking to the journalist – and put it all down in an email. Story ran three times – wrong each time.

  • Still need to keep on top of it. One message for journalists to take from it – don’t take accuracy of material on trust. Council officer was wrong – plain and simple, but reporters didn’t get the facts straight – despite being told.


[Slide 12: BOTPA – V8]

BOTPA example - V8 FAN IS NOW HAPPY CHAPPY
Hamilton builder Rex Tinkler walked away from his Disputes Tribunal hearing about his V8 tickets a happy man yesterday, but privacy rules gagged him from sharing the details.

Mr Tinkler was one of hundreds of V8 fans who complained about poor views at April's inaugural Hamilton 400 street race. "All I can say is that I'm happy with the outcome.” (Waikato Times)

Agencies get it wrong too:

[Slide 13: Morbid Curiosity]


  • Example - Tony Veitch – Made an OIA request to Police for his file. Decision made to release whole thing. Police released a bundle of 358 documents from the investigation file to news media.

  • These documents included statements containing allegations relating to the six charges which the Crown had elected not to proceed with and thus had not been proven in Court.

  • Independent Police Complaints Authority found, in February this year, that the release of information had been due to a number of errors. Recommended that Police apologise to Veitch. Outcome: maybe that’s OK – but in privacy cases, an apology after the fact is only every going to be a partial fix. Why? Because the information is already out there in the public arena – it can’t be taken back.


Industry self-regulation - NZ Press Council


  • As you know – a voluntary body, and doesn’t cover all print media. Can’t pre-empt publication. No legal power.

  • A quick scan of the Press Council website showed 85 “privacy” related cases, since 1995. That’s not quite 6 complaints a year. Former Council member Peter Scherer commented on the privacy cases, saying:

“As a member of the Press Council for almost 10 years, I can attest that in that interval, councillors have encountered fewer than half a dozen personal privacy cases, and even fewer of merit.”

  • Optimistic interpretation: newspapers journalists and their editors are doing very well in striking the right privacy/freedom of speech balance.

  • Another interpretation: New Zealanders are relaxed about personal privacy. The high number of complaints to my office (about 1,000 a year) suggests that this is not the case – but perhaps in the media context we, as a nation, are more accepting.

  • Further possible explanation: the public does not know of its right to complain to the Council, or is unprepared to do so - for whatever reason.

  • If this last possibility has any speck of truth in it, it may be partly because of the fact that once information is published, privacy is lost and cannot be regained – despite a Press Council finding in your favour or a newspaper retraction or apology. You can see why the balance is in the media’s favour, and against the individual.


Court made law – privacy tort / breach of confidence


  • So maybe the courts would be a better option? There, at least, you might be able to get an injunction to prevent publication.

  • Have to remember that really very expensive to go to court. For most people, it won’t be an option.

  • Outcome is uncertain.

  • Area is slow to develop - we don’t have a lot of NZ cases in this area.


Hosking v Runting [2005] (NZ)

[Slide 14 : Pohutukawa]

  • Hosking case, ultimately taken to the Court of Appeal, has been an interesting legal development in NZ.

  • Facts: The Hoskings applied for an injunction to stop the publication of photographs of their twin daughters out in a pushchair in Newmarket.

  • In a legal context, an injunction is akin to a pre-emptive strike – removing the option to publish - and thereby taking the ethical decision about publishing away from the editor. (In fact New Idea publishers claim that they did not intend to publish the photos anyway and that they fought the case on the grounds of principle.)

  • Media exemption in the Privacy Act meant Mike Hosking couldn’t have complained to Privacy Commissioner. Plus, taking photographs of others not prohibited by Privacy Act per se.

  • Legal outcome: Hoskings were unsuccessful. So does that mean that a common law tort of privacy exists in NZ? The court’s decision was split, but the majority decided that there was the ability to bring an action of invasion of privacy in a New Zealand court. The Court of Appeal has left the door open and has allowed for the fact that there may be no other legal avenue for redress in similar circumstances. Possibility of a statutory tort is another option.

  • Test: (1) facts for which there is a reasonable expectation of privacy (2) publicity of those facts would be highly offensive to an objective, reasonable person.

  • Impact of the Hosking decision? Impact probably won’t become apparent for many years – the significant cost of civil litigation stymies most New Zealanders from running to the courts. Plus, the Court made the threshold to gain an injunction very high – there must be no counterbalancing public interest before an injunction can be granted.

  • Questions: how far can the media go? Where does the public interest actually lie? How much personal privacy can you actually expect in a public place? Should we treat young children’s privacy differently to that of an adult or older child?



Photograph in public place – might have expectation of privacy

The fact that a photograph was taken in a public place doesn’t always mean it’s fair game. A few examples follow.


Peck v United Kingdom (2003)


  • Man attempted to commit suicide by cutting his wrists in a public street. that was covered by CCTV. Although the suicide attempt wasn’t captured by CCTV, still photographs were released by the Council and Mr Peck’s face was not masked. The CCTV footage showing Mr Peck was broadcast on BBC and publishing in the papers. Mr Peck was recognisable to many of his friends and family. He brought a complaint of breach of privacy to European Court of Human Rights and the court upheld that complaint (European Convention on Human Rights, art. 8 – privacy).

Naomi Campbell and Mirror Group Newspapers [2004] – House of Lords (UK)


[Slide 15 : Naomi Pic]

  • Facts: Naomi Campbell photographed emerging from a Narcotics Anonymous meeting. Also on a public street.

  • Outcome: The House of Lords upheld her claim of breach of confidence against the Daily Mirror
    5 by a narrow majority. Campbell awarded 3,500 pounds and injunction against future publication.

  • Newspaper had been entitled to publish information showing that Ms Campbell had lied in her denial of a drug addiction. But it had gone too far in publishing details of her treatment and photographs of her emerging from a NA meeting.
  • And, although Lord Nicholls actually gave a judgment that went against Naomi Campbell, he went on to say: “The time has come to recognise that the values enshrined in Articles 8 and 10 [of the European Convention on Human Rights – relating to privacy] are now part of the cause of action for breach of confidence.”


  • Lord Nicholls also commented on the relationship between freedom of expression and privacy:

[Slide 16 & 17 : Pic & Quote]
“The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it too lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well being and development of an individual.” (Lord Nicholls)
Unmeritorious complainant – might still win in Court
Sometimes the complainant is unmeritorious – but they may still have a valid case. Examples:
Max Mosley – News of the World (2008)


  • Facts: News of the World published a story about Max Mosley’s involvement in a private sado-masochistic party (“Nazi Orgy with F1 Boss”). Mosley complained.

  • Outcome: Court ruled against the News of the World – saying Max Mosley had a “reasonable expectation of privacy in relation to sexual activities (albeit unconventional) carried on between consenting adults on private property.”

  • The editor of the Daily Mail, Paul Dacre, condemned the judgment, saying: “Most people would consider such activities to be perverted, depraved, the very abrogation of civilised behaviour of which the law is supposed to be the safeguard.” Mosley received 60,000 pounds.


(NZ) Brown v Attorney-General [2006] DCR

  • Facts: Man released from prison for child sex offences. Police distributed flyers around the suburb he was living, with his photograph, saying he was a convicted paedophile and was living locally. Received threats and subjected to victimisation. Was intellectually below-par. He claimed damages.


  • Outcome: awarded $25,000.


Marie - from here
New media - Emerging Issues

[Slide 18: Rain]


  • New challenges thrown down for media – and for regulators – by new technology.

  • Huge growth area. Changing rapidly. Very dynamic environment. No guarantees about future directions.

  • You will be facing professional challenges that your older peers didn’t face: you have too much information; you have access to huge amounts of official, personal and business information that you could use.

  • So your problem is not how to get the information – it’s how to filter that information – how to be discerning and how to figure out what matters and what doesn’t. You will have to learn to edit.

  • Encourage you to look critically at the sources – Quote – anonymous – “If you are not paying for it, you're not the customer; you're the product being sold.”

  • Encourage you to use those sources responsibly.


Social networking - Facebook

[Slide 19: Facebook friend]


  • Can you maintain control over your information – or do you care? (American poll in 2009 found 35% of companies had rejected job applicants based on information about them from social networks.)

  • There is pressure to share information - Facebook’s own words - “Use the settings to control which of your information is available to applications, games and websites when your friends use them. The more information you share, the more social the experience.”
  • Default settings are to share. “Your name, profile, gender, networks and user ID (along with any other information you’ve set to everyone) is available to friends’ applications unless you turn off platform applications and websites.”

  • We are all part of a surge in social networking – how long will it last – 5yrs? 10 yrs? Will your kids be using Facebook or will it seem dull and old-fashioned by then? Social media always changing – dynamic environment. Twitter– recent report that growth of Twitter was falling away.



Impact on you as journalists?
As journalists, you have a few things to consider:

[Slide 20 : Egg]

  • First, at the personal level - how much knowledge and control over your own information do you want to have?




  • Secondly, how are you currently using Facebook in your working life?




    • Recent Press Council decision touched on this aspect (case 2173): February 2011 – Rugby player Aparangi Hemara – Herald on Sunday. Newspaper used his wedding day photo – sourced from his mother’s Facebook page. The newspaper argued that the family should have adjusted the privacy settings. Press Council commented that Facebook is a public not private sphere – but specifically says it expects news organisations to take reasonable steps to obtain permission.




      • Thirdly, how are you going to manage the quality of the information you are accessing? Think of blog sites – material is unedited; unverified, potentially inaccurate; no right of correction.



      • Fourthly – How are you going to stay on the right side of the law? Think of the name suppression issues that have received much publicity recently (eg Cameron Slater). If your newspaper publishes material that is subject to a court order, risk of contempt of court. In the context of whistleblowing, in the US, we know of the imprisonment of Private Bradley Manning for the release of documents to Wiki-leaks (Julian Assange). How are you going to protect your sources?




  • Finally – How are you going to preserve your independent sources? Author and lawyer Tim Wu, who coined the phrase “net neutrality” said recently that the internet is in flux and that freedom of access is at risk. He comments that control of the internet – and what is on it - is aggregating into a few monopolies, like Amazon, Google, Facebook and Apple – just like earlier technologies of radio, film and television.6



How best to regulate and balance interests in new media environment?

[Slide 21 : Wild West]


  • The law and regulatory framework is running to catch up with online media developments.

  • There is a bigger role now for professional standards and ethics.

  • Upshot? If you don’t improve your game, you will be regulated from above. There are green pastures at the moment – don’t wreck it. Your industry freedom is in your hands. Need ethics operating at level of:

    • Industry

    • Each publication

    • Each journalist

  • Regulation of new media rapidly catching up.


Shape of future regulation: Law Commission


  • Review of privacy – Has undertaken huge review of privacy – started in 2007 – and worked on it fulltime. Final report to Government expected in next few months. Impact on media? Not expected to recommend changes to the current media exclusion in the Privacy Act. Did not recommend statutory tort.




  • New terms of reference – “New media” - Law Commission’s new reference to look at regulating “New media”. Potential to affect the jurisdiction of the Broadcasting Standards Authority and the Press Council.

Where to from here?



  • “cyberspace” context requires citizen awareness, PC advocacy

  • our interests coincide on this – seek the truth, fairness

  • govt and business need holding to account

  • challenge both sides – is it really a BOTPA? Overstated compliance costs? Overstated harm? Understated risks?

  • good practices and policies

  • if we (OPC and media) don’t protect citizens people will respond as they can – eg go ex-directory

  • hard areas – mental health, children’s health, sex offenders – defensive approach by Drs etc

  • balance; international context; trade/business

Hints for journalists


  • Tribunal cases

  • OPC annual report

  • case notes on website

  • OPC – enquiries line – for general guidance (0800 803 909)

  • policy issues – has OPC been consulted?

      • stories you were missing – but now aren’t?

biometrics

    • Biometrics

    • Cloud computing

    • Credit reporting

    • Databases (e.g. DNA)

    • DHB privacy officers

    • Direct marketing

    • IT, video technology

  • “What part of the Privacy Act prevents disclosure?”

Concluding comments

[Slide 22 : Shower – public interest]

      • Don’t be put off or misled – there may be a better story there (e.gs)
      • Challenge everything, take off BOTPA blinkers. Be critical of online sources.


      • Get the real stories.

      • Develop your ethical foundation:

    • At industry level

    • At the level of each publication

    • Personally

      • Can’t just leave it to the bosses – you need to get your values and ethics straight.

      • Public interest: bear in mind: - “what engages the interest of the public may not be material which engages the public interest.”

______________________



Contact: Allison Oosterman: aoosterm@aut.ac.nz
Cell: 021 1311168

1 Daniel J. Solove, 2008, Understanding Privacy, (Harvard University Press: Cambridge, Mass.) 1.
2 Also International Covenant on Civil & Political Rights (ICCPR) Art. 17: 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. In New Zealand, incorporated through NZ Bill of Rights Act.




3 ComputerWorld, “Obama Administration call for new privacy law”, 17 March 2011.

4 Paul Chadwick, The Walkley Magazine: www.ejournalism.au.com/chadwick.html


5 The House of Lords chose to expand upon the pre-existing tort of breach of confidence – rather than develop a privacy tort.

6 “The Wu master”, The Guardian, Thursday 17 March 2011. New book: The Master Switch.

OPC/1230 /A249313


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