Tuesday, 20 December 2011 15:30

ACMA says Channel Seven did not breach privacy

By

Channel Seven sourced images of a grieving family from Facebook as part of a report into the sentencing of a convicted murderer.  A complaint regarding the use of these images was dismissed by the ACMA.

According to the Australian Communications and media Authority's (ACMA) report of its investigation, "The news report concerns the sentencing of Mr X for the murder of Ms Y.  the news report broadcast 13 photographs of Ms Y and her family and friends, accessed from a Facebook page in tribute to Ms Y, as well as a post entered by the 14 year old nephew of Ms Y, which included his name and photograph."

The ACMA applied the standard test of the 'ordinary, reasonable viewer' to determine how the program (as aired) would have been understood.

According to the complainant, "The news item attributed comments to my wife and myself which we did not make."

This complaint was upheld to the extent that the Channel Seven reporter had clearly (although inadvertently) added their own thoughts as if they had been expressed by the complainant.  With this determination, the ACMA found that the licensee (Channel Seven) breached clause 4.3.1 of the Commercial Television Industry Code of Practice (The Code).

The more significant complaint centred around clause 4.3.5 of the code:

"In broadcasting news and current affairs programs, licensees must not use material relating to a person's personal or private affairs, or which invades an individual's privacy, other than where there is an identifiable public interest reason for the material to be broadcast."

The complainant submitted, "The news item which was broadcast included photographs which were lifted, without permission, from 'social networks' and which carried the visible names of a child who had been threatened by Mr X."

The licensee responded to the complainant: "...The photographs displayed publically on the website were briefly used for the purpose of reporting news, which occurs from time to time across the media, not just by Channel Seven.  These photographs are available to anyone who accesses the internet site.  We certainly did not have any intention to offend you and only used the photos to the extent that was necessary."

Read on for what Channel Seven said to the ACMA.


In response to the ACMA, the licensee continued, "The photos were obtained from www.facebook.com, a social networking website.  The Facebook website enables users to create personal profile pages and groups, each of which has changeable privacy settings so that users creating profile or group pages can control who can access the content of each page."

"...When gathering material for the report, Seven inserted {Ms Y] in the Facebook search tool in order to locate any tribute pages which may have been created at the time.  This simple search instantly retrieved the R.I.P. [Ms Y] group page."

"...In order to access the photographs, Seven simply clicked on the 'photos' tab at the top of the page.  This content was still available when Seven prepared its first submissions to the ACMA."

The ACMA dismissed the complaint, noting that: "The ACMA acknowledges the complainant's concern that the photographs were broadcast without the consent of the subjects of the photographs and that the complainant considers the photographs private in character.  However, the ACMA is of the view that the nature of the tribute page, the absence of privacy settings and the non-sensitive nature of the photographs themselves combine to mean that on this occasion, the licensee did not use material relating to a person's personal or private affairs.

"This finding does not mean that licensees are free to broadcast any material available on the internet without risk of breaching this code.  Not all material on the internet will cease to be personal or private merely because it has been made publicly available through the absence of privacy settings or otherwise."


Furthermore, a complaint related to the 14 year old nephew's information was dismissed as the child was not "immediate family" for the purposes of the code.

On the next page, we consider the copyright implications of Channel Seven's actions.


A final complaint related to the way in which the complainant was advised of his rights and obligations in making a complaint was upheld in that the Channel Seven person with whom he spoke did not clearly express the requirement that such a complaint must be made within 30 days.

Within this entire ACMA complaint process, no determination was made as to the legality (under copyright law) of the re-use of the images obtained from Facebook. 

According to the Facebook terms of use, clause 2.1 states, "For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)."

Clearly this clause gives a non-exclusive right to Facebook to use your content as they see fit; it does not however appear to grant an on-license to anyone who accesses any Facebook page, whether publicly accessible or controlled by various privacy settings.

 


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David Heath

David Heath has had a long and varied career in the IT industry having worked as a Pre-sales Network Engineer (remember Novell NetWare?), General Manager of IT&T for the TV Shopping Network, as a Technical manager in the Biometrics industry, and as a Technical Trainer and Instructional Designer in the industrial control sector. In all aspects, security has been a driving focus. Throughout his career, David has sought to inform and educate people and has done that through his writings and in more formal educational environments.

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