Tamworth-based Prime7’s Local News breached the Commercial TV Industry Code of Practice (the Code) by using material relating to a child’s personal or private affairs in the broadcast of a sensitive matter concerning the child.
The Australian Communications and Media Authority investigated a news report that aired 2 March 2016 which dealt with alleged acts of bullying at a school in the region. The report included video footage that had been copied by a third party from Snapchat.
While accepting that it was in the public interest for the viewing audience to be made aware of allegations of bullying at a school in the region, the ACMA noted that that public interest could have been served without showing the video footage in the form used.
The ACMA considered that the alleged bully was identifiable from the video footage and that their involvement in the incident, suspension from school and a related police investigation, constituted sensitive personal information concerning the child.
The licensee did not obtain consent from the child’s parents to broadcast this material.
The Code also obliges commercial television licensees to exercise ‘special care’ before broadcasting material relating to a child’s personal or private affairs in a report of a sensitive matter concerning the child.
The ACMA found that the licensee failed to exercise special care and breached clause 3.5 of the Code in relation to privacy.
The ACMA found that the licensee did not breach clause 3.3.1 in relation to accuracy. It was clear from the report that the bullying allegations were contested and were the subject of ongoing investigations.
In response to the ACMA’s findings, the licensee has:
- conducted legal and ethics training with all staff at the Prime Tamworth office and discussed this particular matter with all Prime’s news editors;
- scheduled further training in the 2016/17 financial year across all markets as part of its regular training program; and
- introduced an online legal compliance quiz that must be completed to a satisfactory standard by all journalists upon employment with Prime.
The ACMA also notes that the news report of the alleged incident is not available on the licensee’s news website.
For more information please see the Backgrounder below or contact: Emma Rossi, Media Manager, (02) 9334 7719, 0434 652 063 or firstname.lastname@example.org.
Media release 40/2016 - 9 November
Relevant Code provision – privacy
Clause 3.5 of the Code provides that In broadcasting a news or Current Affairs Program, a licensee must not broadcast material relating to a person’s personal or private affairs or which invades a person’s privacy unless:
(a) there is a public interest reason for the material to be broadcast; or
(b) the person has provided implicit or explicit consent for the material to be broadcast (or in the case of a person under 16, a parent or guardian has given implicit or explicit consent).
It also requires licensees to exercise special care before broadcasting material relating to a child’s personal or private affairs in a report of a sensitive matter concerning the child.
In assessing compliance with clause 3.5, the ACMA was assisted by its Privacy Guidelines for Broadcasters 2011 (Privacy Guidelines)  which stated:
The ACMA generally considers the following questions:
- Was a person identifiable from the broadcast material?
- Did the broadcast material disclose personal information or intrude upon the person’s seclusion in more than a fleeting way?
If the answer to both of these questions is yes, then there is a potential breach of the Code privacy provisions. The ACMA will then generally consider:
- Was the person's consent obtained—or that of a parent or guardian?
- Was the broadcast material available from the public domain?
- Was the invasion of privacy in the public interest?
If the answer to any of these three questions is yes, then generally there will be no breach.
Here, in the ACMA’s view the child was identifiable from the broadcast and the broadcast disclosed sensitive personal information without consent about a child’s personal affairs.
Relevant Code Provision – accuracy
Clause 3.3.1 of the Code provides that, in broadcasting news and current affairs programs, ‘licensees must present factual material accurately and ensure viewpoints included in the Program are not misrepresented.
Here, in the ACMA’s view, it was clear that the alleged child bully claimed that the incident was a prank and that the bullying allegations were contested and were the subject of ongoing investigations.
The regulatory framework – broadcasting content regulation
Under the Broadcasting Services Act 1992 (BSA), Australian radio and television licensees have primary responsibility for ensuring that the material they broadcast reflects community standards. Many aspects of program content are governed by codes of practice developed by industry groups representing the various Australian broadcasting sectors. The ACMA registers codes (other than those of the national broadcasters, the ABC and SBS) once it is satisfied that broadcasters have undertaken public consultation and the codes contain appropriate community safeguards.
The ACMA may investigate in the public interest:
- following a complaint about compliance with the BSA or licence conditions;
- following a complaint about compliance with code obligations, where the complainant has complained to the licensee and is dissatisfied with its response; or
- on its ‘own motion’ into compliance with the BSA, licence conditions or code obligations.
Additional information about, and copies of, the ACMA’s published broadcasting investigations reports are available here.
Responding to breaches
Where there has been a breach of a code of practice, the ACMA may:
- agree to accept measures offered by the broadcaster to improve compliance (such as educating staff or changing procedures);
- agree to accept an enforceable undertaking offered by the broadcaster for the purpose of securing future compliance with the rules;
- impose an additional licence condition.
The ACMA cannot ‘fine’ or ‘prosecute’ a broadcaster for breaching a code, or direct it to do any particular thing (such as broadcast a report of the ACMA’s findings).
 The ACMA referred to the ACMA Privacy Guidelines for Broadcasters 2011 (the Privacy Guidelines) as these were the current Privacy Guidelines at the time of the broadcast. Updated Guidelines were issued on 9 September 2016 and will be used in privacy investigations of broadcasts from that date.