Category: BCM113

EXPLAINER

On December 4^th, 2012, Today FM recorded a prank call between two presenters; Mel Grieg and Michael Christian, who pretended to be Queen Elizabeth II and Prince Charles as well as two staff members of the King Edward VII Hospital in London. This was the hospital where the Duchess of Cambridge was being treated for her morning sickness, during the pregnancy of Prince George of Cambridge. The staff member didn’t realise she was being recorded, or that she hadn’t speaking to the real Queen Elizabeth II and Prince Charles, providing certain details about the Duchess’ condition while being admitted in the hospital. 

On the 13^th of December 2012 the Australian Communications and Media Authority (ACMA) formally notified Today FM that an investigation was going to commence the offence in question under section 11(1) of the Surveillance Devices Act 2007 (NSW).

1)  A person must not possess a record of a private conversation or the carrying on of an activity knowing that it has been obtained, directly or indirectly, by the use of a listening device, optical surveillance device or tracking device in contravention of this Part.

 The ACMA were allowed to conduct said investigation “for the purposes of the performance or exercise of any of its broadcasting, content and datacasting functions”, stated in Australian Communications and Media Authority Act (2005) and related powers. 

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LEGAL ISSUES AT HAND

There are thirteen main Australian Privacy Principles  , and they govern standards, rights and obligations around:

• the collection, use and disclosure of personal information
• an organisation or agency’s governance and accountability
• integrity and correction of personal information
• and the rights of individuals to access their personal information

As mentioned Today FM was investigated under the Surveillance Devices Act as they were clearly in breach of:

• Possession of record of private conversation or activity
  • (1)  A person must not possess a record of a private conversation or the carrying on of an activity knowing that it has been obtained, directly or indirectly, by the use of a listening device, optical surveillance device or tracking device in contravention of this Part.

Not only was it an issue for Today FM to record the nurse, but in deceiving the nurse on the other line – she became in breach of privacy, under her contract as a nurse when she disclosed the information to the presenters. NSW Nurses and Midwife Association General Secretary Brett Holmes stated: 

“Such a call, with similar outcomes at an Australian health facility, irrespective of who the patient was, could have serious legal and professional implications for the nurses, midwives or any other health worker involved.”

When do Pranks Break the Law?
Prank calls that are considered a criminal offence are those that threatened to kill or cause injury, making a bomb hoax, calling 000 faking an emergency is open to three years in jail. Even if the caller doesn’t threaten repeated calls can be considered harassment, stalking or bullying with criminal repercussions for the pranker. Today FM had been notoriously known for doing crude and insensitive pranks on their radio station for years, prior to the prank call that pushed them over the line. And due to this big incident, the continuous recording of certain calls had been put under a magnifying glass

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SIDES OF THE CASE

4 June 2013, the ACMA provided Today FM with a confidential copy of Preliminary Investigation Report No. 2928.

“The ACMA, as an administrative body, has the power to form an opinion as to whether a licensee has committed a Commonwealth, State or Territory criminal offence, for the purposes of deciding whether a licensee has breached the licence condition… The ACMA is not limited to forming such an opinion after an adjudication of criminal guilt by a criminal court. The formation of such an opinion by the ACMA may occur independently of any trial or conviction for a criminal offence.”

Today FM responded to the report by filing a court application on Tuesday the 18^th of June 2013. The radio station truly believed the ACMA had no case against them and were confident in their decision to take the Association to court. They based their side on three points: 

1. Claiming the ACMA didn’t have authority to make their findings that Today FM had committed a crime
2. The ACMA Act does authorise the Authority to make such findings, the provisions are invalid. And the provisions don’t fall under the judicial power of the court.
3. And lastly, and independently, the findings will interfere with the administration of justice in a criminal proceeding and the Court would accordingly restrain it. 

The AMCA just wanted what was in breach (or wasn’t) to show through. They based their case on that the holder of a commercial radio broadcasting licence has breached the licence condition and to take any action in relation to the alleged breach.

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IMPACT

The following events after the case went beyond any predictions. The nurse, Jacintha Saldanha, who was 46 when she took the prank phone call as a serious inquiry, took her own life on December 7^th 2012 (three days after the call) from the shame and the backlash and work related repercussions. Her regret was seen in many emails and messaged she left for her co-workers. 

Not only was it serious for her to give patient information on the Duchess, but it would be serious under any circumstance with any patient. In the NSW Health Agreement Policies for staff it states:

“Staff are bound by the NSW Health Code of Conduct and privacy legislation to maintain confidentiality of information accessed in the course of their duties. This includes not disclosing personal information about patients or staff on social media… Maximum penalty: $11,000 fine or imprisonment for 2 years or both.”

“Such a call, with similar outcomes at an Australian health facility, irrespective of who the patient was, could have serious legal and professional implications for the nurses, midwives or any other health worker involved.”

As for the backlash on the other end when news broke of the suicide, Today FM big name advertisers pulled away from the radio station. Which led to all advertising on the station to be suspended until further notice. 

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WHY IT’S IMPORTANT FOR THE MEDIA INDUSTRY

For future broadcasting this effect the way Broadcasting Stations (specifically Today FM) are allowed to and permitted to operate. Prank calls are not uncommon for entertainment broadcasting shows, for a platform that is exclusively audio the means on entertaining has its boundaries. For Today FM the “punishment” of the call included the two presenters losing their jobs, for host Mel Greig she believes it also led to the end of her marriage. As well as a set of actions constructed by the ACMA:

• The broadcast of a three-hour program to “promote media ethics and raise public awareness of the signs and risks of bullying, depression and anxiety”, with advertising proceeds to be given to charity
• An additional licence condition for three years to ensure the station does not broadcast a person speaking without either informing the person before recording them, or requesting permission after recording them
• Further training for presenters, producers and management.

Although the station did breach the regulations held by ACMA and eventually lost the case, Today FM were allowed to keep their licence to remain on the air. Chairman of the ACMA, Chris Chapman, said as a whole the case was “a win for the industry”. 

“”I think the matter of debating media ethics and some of these other matters that are percolating around very seriously in society about bullying and harassment is a great start… If it provides encouragement for other broadcasters to seize on this, then I think for citizens, for the broadcaster, for the regulator that is a win win win.”

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The case when taken to the Full Federal Court unanimously deciding that the Act that Today FM was investigated under the ACMA could not accuse the radio station of committing a criminal act. The case was then appealed and taken to The High Court which ruled in favour of the ACMA entitling them to make these findings and investigations. It also found seeking to enforce the matter did not amount to a judicial decision and, therefore, the constitutional challenge raised by Today FM failed. For future broadcasting offences this means an administrative decision-maker can make findings that an offence has been committed is likely to apply to a larger administrative enforcement of activities for radio broadcasting.  

Group Blog Post – BCM113

WHO ARE CAMBRIDGE ANALYTICA?

Cambridge Analytica is a British political consulting firm driven by Alexander Nix – a British businessman with an extensive history in behavioural research and strategic communications consultancy. The company offers its services to “change audience behaviour”, to businesses as well as political parties who intend on influencing and persuading audience actions, reactions and ideologies. According to an article by The Guardian, Cambridge Analytica is able to analyse mass amounts of consumer data via data collection from myriad of media sources – commonly social media platforms such as Facebook, as well as its own primary polling. They then combine this consumer data with behavioural science to identify target audiences that the organisations they work with can slam with marketing material; often these audiences are people who are underinformed and easily influenced. 
Cambridge Analytica has also been involved in and accused of various sketchy engagements. In an explainer article by WIRED, it reports that Cambridge Analytica was accused of using the data of a huge 50 million Facebook users, without their permission. A researcher from Cambridge university created a third party app “thisisyourdigitallife”, where almost 300 000 people downloaded it, giving them access to all their data and their friends, unknowingly. That isn’t where it ends, in the same article, a political analyst who worked on the 2016 Trump presidential campaign, says that Cambridge Analytica gathered extensive personality profiles, which its clients can use for “psychographic targeting” of ads – is that all they did, though?

TO WHAT EXTENT CAN IT BE ARGUED THAT CAMBRIDGE ANALYTICA INTERFERED IN THE 2016 US ELECTION?

Multiple investigations begun launching in 2018 into Cambridge Analytica’s misuse of 50 million Facebook uses’ personal data. The company was suspended from Facebook in 2018 after the backlash from the New York Times report exposing them for violating Facebook’s terms of service for using personal data. Former employee Christopher Wylie approached the media. Wylie and the media have focused on two aspects;

1.  the legality of Cambridge Analytica’s actions in getting users’ Facebook data, 
2. and the effectiveness of the Facebook advertisements and the ethical questions about them.

Cambridge Analytica came into American politics with the goal of giving conservatives big data tools to compete with Democrats. Its big promise: developing detailed psychological profiles of every American voter, so that campaigns could tailor their pitches from person to person. The company couldn’t fully capture the personality of every single voter. By using a targeted advertising technique they were able to specify individuals and their voting opinions. Nix described this technique as the opposite of blanket advertising which entails displaying the same message to millions of users. He explained how “today communication is becoming ever increasingly targeted. It’s being individualized for every single person in this room”. Nix pitched the company’s approach at the time. Cambridge Analytica worked with researchers to develop “a 120-question survey that seeks to probe personality,” he said. “And we’ve rolled this out to literally hundreds and hundreds of thousands of people across America.” By conducting lots of research to analyse the effectiveness of the Facebook advertisements the company aimed to persuade users to vote a certain way by showing different advertisements on the same issue, to different people. The persuasion was done by gathering information on the Facebook page likes of users and using that data to create models that predict personality.

Benjamin Wein – Celtie Williams – Chelsea-Lee Bastable – Hannah Kairuz – Katherine Corbett

Introduction / Outline

After long speculation, it was revealed in 2018 on the front cover of the Daily Telegraph that former Deputy Prime Minister Barnaby Joyce was having a baby with his previous staff member Vikki Campion confirming and outing their affair. Campion had been working for Joyce on his election campaign in 2016, after being photographed together multiple times out of work, the reason it became more than political news was because Joyce was already married with children. After this article had been published Joyce later went to Channel 7 to sell his story which put his position in public office at risk. After all the media coverage and being the attention of public and political gossip Joyce resigned as Leader of the National Party and Deputy Prime Minister. As the scandal peaked everyone’s interest it begged the question, did Joyce deserve the right to keep his relationship out of the media, or as a politician did his affair deserve to be that of public interest.

What is Public Interest:

• Public interest can be challenging to define as it can change as time goes on. The Australian Parliament of Australia defines public interest as anything that can be related to ideas, like common advantage, common good, public good, public benefit or general will.
• Public interest is not just something that the public is interested in, it needs to be something that is going to affect the public, to ensure they are safe, healthy, and have a fully functioning society.
• The Privacy Test – Journalists should not intrude into the personal lives of the ordinary person. However, people who are public figures, such as politicians or corporate leaders carry a responsibility in the public and at times their actions in the private lives can have an impact on the public roles.
• The Impact Test – To test whether a matter is of the public interest, is to see how the matter or events will impact or affect the public. Who benefits from the information being reported, and does it concern the wider public.

For: Why Barnaby Joyce had rights to privacy

There is a lot of ethical speculation around this matter of the reported affair between Barnaby Joyce and his staff Vikki Campion, especially regarding does Barnaby Joyce have the right to privacy?  

First of all, everyone is entitled to the right of privacy, this is embedded within many universal declarations and covenants and is recognised as a fundamental human right. This is expressed within the United Nations Declaration of Human Rights (Article 12), the International Covenant on Civil and Political Rights and in many other international and regional treaties. This right underpins human dignity and other values such as freedom of association and freedom of speech according to the Privacy and Human Rights international Survey. 

In addition to this, privacy laws allow individuals to create and manage barriers to restrict interferences in their lives allowing them to create an image or reputation for themselves. This further gives control over how we interact with the world around us. By publishing stories around the scandal, although Barnabby Joyce didn’t have the higher ethical ground, the publicists also need to be recognised for their poor ethical decisions  in deciding to take away Barnby’s control from his life and over the matter.  

Therefore, why is Barnaby Joyce any different? Why are is his entitlements no longer valid because he is a public figure? His alleged ‘scandal’ is not of public interest because the impacts of his actions had no implications and complications on society as a whole, rather the aftermath was to affect his family. Thus, he deserves the same respect as any other human being and should not have had his own affair publicly broadcasted as that also took away the right to solve this issue privately and with the people involved and directly impacted. 
This ‘scandal’ was detrimental to his family to find out information this serious through the media and publicly means the loss of privacy not only to Barnaby Joyce but also to Vikki Campion and to his wife and children who also loss the ability to work through this. Because this was such a tough time the family had a lot of pressure on them to respond therefore the effect of not only impacting Barnaby Joyce but also the people around him. 

Impacts on those around Barnaby Joyce:

This drama was merely a source of entertainment to the Australian Pubic, whilst had devastating impacts to those closest to Barnaby Joyce. Not only was his 24-year marriage publicly over, impacting the dignity of his former wife, Natalie Joyce, but his four young daughters also had to watch their father be dragged around the public ring Though, it was ‘the mistress’, ‘baby mummy’, Vikki Campion who received the most of second-hand backlash. Before and during her pregnancy Ms Campion was media adviser for the Deputy Prime Minister and promoted to a position in National Minister, Matt Canavan’s team, both roles she earnt through hard work and years of commitment. However, it was heavily insinuated by most publications reporting on this scandal, that Ms Campion only earned these roles and promotions via favours suggested to be sexual. These accusations had no type of proof behind them but damaged Ms Campion’s reputation all the same. These accusations reflect more so on the attitudes of society believing the one and only explanation for a woman in politics to be promoted is by unethical, sexual means. It is only in 2020 that she has returned to her parliamentary role after having a second child with Barnaby Joyce, overcoming the violations to her privacy by the public.

Against: Why The Barnaby Joyce Affair Is A Public Interest

Barnaby Joyce is just another person who has rights and feelings, however it is difficult to respect one’s rights and feelings when they in turn are not respecting them back. Joyce’s affair has been deemed a ‘public interest’ by many mediums and for a myriad of different justifications. It is difficult to look at this scenario without an unbiased lens when Joyce has continually degraded and dismissed other minorities such as women, pro-choicers and the LGBTQI community.

Joyce has reportedly asked for a tort of privacy for himself, allowing him to sue those who invade his privacy. Yet, Louise Yaxley outlines how hypocitical this plead is when he was the oppositiion to a bill proposed banning protesters harassing women outside abortion clinics. Joyce utilises the claim that he believes in “freedom of speech”, although as Yaxley records, seems otherwise when his own choices are questioned. Ms Sharp (NSW Labour MLC) says “It was very hypocritical of him to have tried to convince his colleagues to refuse to protect women on harassment” in the article, pointing out the hypocrisy of the situation. Joyce admits that as a politician he knows his interests and actions are seen in the public eye, but defends that Campion and his son are not within this limelight.

Furthermore, Joyce’s affairs can be viewed as a public interest when he himself is selling it. Campion and Joyce have reportedly sold their story to a broadcasting company. The Deputy PM persists with the justification that his affair is not of anyone’s concern but his own, however is willing to tell more about it when money is involved:

“Meanwhile, we may sit back and marvel at the hypocrisy involved, as Campion complains to the Australian Press Council about the newspapers’ breach of privacy in reporting her pregnancy, while she and Joyce take money from a television channel to tell even more about it.”

There is a small view amongst consumers that despite all the hypocrisy circumambient of Joyces words, he still has a right to privacy. This is true, all have this right, however as Alcorn from The Guardian remarks, “That agony can be respected. Nobody has a right to know all the details. People are entitled to a private life. But the deputy prime minister can’t just say that none of this should be reported, that it has no political relevance.” These situations become part of the public’s interest when the personal life occuring is affecting the conduct of their profession. It becomes the public’s concern when it questions one’s suitability in the profession they currently possess, particularly when they are representing us. 

It is understood that humans are all granted rights, although as a public figure, Joyce’s role is to represent and become an image. When your profession is to represent the core beliefs and values of a community, it is natural to assume that the public should be aware when such actions are contradictory to the persona the community was led to believe. 

Can an animal own copyright? In 2015 PETA sued as a ‘next friend’ on behalf of a monkey (called Naruto) after the monkey had snapped a selfie with photographer David Slater in 2011. 

Benjamin Wein – Celtie Williams – Hannah Kairuz – Laura Broker-Torwart

The legal issues of the case

Copyright is the right to originally produced materials such as music, text or creative works giving ownership to the author. Copyright rights are covered within the Australian Legal System under the Copyright Act 1988 (Cth). Although legislation gives ownership of an individual or groups work copyright does not necessarily protect ideas, concepts, styles or techniques. 

The case of PETA v. Slater 2015, outlines the key legal issues of copyright and standing. The case was brought to the United States district court by the plaintiff Naruto (crested macaque monkey) who was represented by PETA and the defendant David John Slater. Slater was being accused of publishing a photograph taken by Naruto on Slater’s camera. As Slater published the images to his book, ‘Wildlife Personalities’, without Naruto’s permission the issue was around does Naruto have rights to copyright?

According to the case manuscript the court dismissed Naruto’s claims as the “panel held that the animal had constitutional standing but lacked statutory standing to claim copyright infringement of photographs”. This is because the Copyright Act of 1976 (US) does not expressly authorize animals to file copyright infringement suits.

What were the arguments of the case?

PETA arguments:

• The photo was published without Naruto’s permission
• Slater had infringed on Naruto’s copyright by releasing ‘Wildlife Personalities’, a book that included the photo.
• The book was also published and shipped from San Francisco, and so, PETA adhered to Californian copyright legislation and filed the lawsuit there.
• Naruto is the author of his own work, and PETA was suing under the Next Friend clause as Naruto was unable to himself.

Slater’s Arguments

• Slater is a professional photographer, residing in the United Kingdom, who
• claims to be the author and copyright owner of the Monkey Selfies.
• Slater’s argument was that animals cannot own copyright
• Slater himself stated, “’Every photographer dreams of a photograph like this…‘If everybody gave me a pound for every time they used [the photograph], I’d probably have £40m in my pocket. The proceeds from these photographs should have me comfortable now, and I’m not.’”
  • He himself wasn’t getting financial compensation from ALL the images that we’re not realised to the media (Like WikiMedia)
• Slater admits the proposition of PETA, writing in his book: “The recognition that animals have personality and should be granted rights to dignity and property would be a great thing.” Slater further writes that macaques such as Naruto are “intelligent, artistic and complex.”
• As well as Slater, on the defendant side was Blurb – a Delaware corporation and publishing company (principal location: San Francisco, California) who published the book by Slater, entitled “Wildlife Personalities” which is sold through interstate commerce (including Amazon.com) in the United States and elsewhere. The images created by Naruto appear throughout the Wildlife Book, including on its cover.
• Slater admits Naruto created the Monkey Selfies. For example, Slater makes all of the following admissions in the Wildlife Book published by Blurb, which uses one of the Monkey Selfies as the cover photograph:

Description of front cover: “Sulawesi crested black macaque smiles at itself whilst pressing the shutter button on a camera.” 
Page 9: “A Sulawesi crested black macaque pulls one of several funny faces during its own photo shoot, seemingly aware of its own reflection in the lens. Despite the howling posture, the macaque was silent throughout, suggesting to me some form of fun and artistic experiment with its own appearance.”
Page 11: “Posing to take its own photograph, unworried by its own reflection, smiling. Surely a sign of self-awareness?“
Page 11: “[T]he shutter was pressed by the monkey.”
Page 11: “My experience of these monkeys [crested macaques] suggested that they were not just highly intelligent but were also aware of themselves. . . . It was only a matter of time before one pressed the shutter resulting in a photo of herself [sic]. She [sic] stared at herself with a new found appreciation, and made funny faces – in silence – just as we do when looking in a mirror. She [sic] also, importantly, made relaxed eye contact with herself [sic], even smiling….She [sic] was certainly excited at her [sic] own appearance and seemed to know it was herself [sic].” (Id.)

What was the outcome of the case

When PETA first tried to sue, the U.S copyright office specifically stated  ‘a photograph taken by a monkey’ as something that cannot hold copyright; however, PETA pursued the case anyway.

During the initial 2016 hearing the court found that the money, in fact, could not own copyright; “Our court’s precedent requires us to conclude that the monkey’s claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act”

PETA appealed this decision and in 2017 Slater and PETA reached a settlement under which Slater agreed to donate 25% of revenue from the selfie that the monkey had taken to wildlife protection groups. However, the court did not agree to this settlement as it wanted a precedent to be set for cases like this in the future, thus the case continued.

The case went to trial for a final time in 2018 and on April 23 the court ruled in favour of Slater, establishing the precedent that only humans can file copyright lawsuits, not animals.