ACMA finds Facebook photos are not private

Australia’s communications regulator has ruled that television networks are not breaking the industry’s code of practice when publishing photos lifted from a public Facebook profile.

The Australian Communications and Media Authority (ACMA) determined that Channel Seven did not breach the Commercial Television Industry Code of Practice when it accessed and broadcasted photographs – specifically in the case of a deceased person lifted from a Facebook tribute page, and another which broadcasted the name, photograph and comments penned by a 14-year old boy.

The decision will have broad ramifications for the media industry, and will put greater pressure on Australia's new federal Attorney-General, Nicola Roxon, to address online privacy directly in law.

“The ACMA found that due to the open nature of the tribute page, the absence of privacy settings and the non-sensitive nature of the photographs, Seven did not breach the privacy provisions of the code,” the ACMA noted in a press statement.

That said, the ACMA said it was not open slather for journalists to rip materials from social networks.

The regulator has already established guidelines around the exploitation of children, teens and Australians with special needs, and is establishing its own privacy guidelines in tandem with the Attorney-General.

Channel Seven would have breached the code had the report disclosed sensitive information concerning the health or welfare of the child, or if it reported on a criminal matter involving his immediate family.

The ACMA was begrudgingly unable to guarantee that users marking content as “private” on a social network could be safe guarded from broadcasters and publishers making it public, at least under the industry code of practice.

“The ACMA made it clear that while it considers the use of privacy settings an important consideration when assessing material obtained from social networking sites, the actual settings are not determinative,” the regulator noted.

Instead, the regulator will determine matters taken before it on a case-by-case basis.

“In each case, the ACMA will assess a licensee’s compliance with its privacy code obligations having regard to the specific circumstances of the broadcast.”

Consultant Roger Clarke, currently chair of the Australian Privacy Federation, told iTnews that he personally felt the decision was "typical of the failure of regulators to take meaningful action".

"The breaches have been completely tolerated, without chastisement, without the extraction of meaningful undertakings, without any penalties being imposed, and without even any 'suspended sentence' approach being adopted," he said.

"It appeared for a while that the current [guideline] review might result in improvements, but there remain some serious problems with their proposal amendments, which we're in ongoing discussions with them about.

"The behaviour of both the Privacy Commissioner and the ACMA is such that you have to conclude that they see their role as being to protect the interests of corporations, not privacy."

The ACMA’s CyberSmart web site advises that “even if your profile is private, you can’t control what your friends do with the information you post".

"Don’t post photos or information that you wouldn’t want anyone else to see," it states.