Balancing public interest and the right to privacy

It’s far from over, with many still shouting. But as the conga line of those condemning Channel 7 for broadcasting the news that two AFL players had been referred for illicit drug use grows, we need to ask ourselves: are we shooting the messenger?

The noisy majority contends that medical records are sacrosanct, and that Seven behaved like slime not just by paying for such tainted goods, but broadcasting their contents.

Let’s look at the facts. On Friday the 24th, Seven reported that two senior AFL players had been referred for drugs treatment under the league’s illicit drugs policy. The story came from medical records provided by a couple in their thirties who claimed to have found them in a gutter outside a rehabilitation centre, but were eventually arrested for stealing them. The network had paid $3000 to obtain the documents. A player boycott is now in force.

But while everyone agrees that medical records should remain confidential, few have asked whether it is reasonable to assign the obligation to achieve this to a television network.

Medical institutions and health professionals are certainly obliged to respect patient confidentiality. Medical students learn early of their duty not just to keep mum about what happens in the consulting room, but to take all reasonable steps to ensure the contents of patient records are not disclosed. This is not just because medical practitioners have an obligation to foster the autonomy of their patients, but because they recognise that people will only come forward for advice and treatment – particularly about stigmatised conditions like abuse, mental illness and substance use – if they know their secrets will be safe.

Are journalists obligated to keep patient records private, too? The Media Entertainment and Arts Alliance’s Code of Ethics notes that journalists should “respect…personal privacy” but offers little guidance on how such respect should be demonstrated, or balanced against the public interest. The Australian Communication and Media Authority’s Guidelines stipulates that news and current affair programs 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.

Journalists seem to agree that there was a case for running the story. Last Thursday, senior journalist at the Australian Cameron Stewart described it as a “cracking yarn” that “every media outlet in Melbourne would have reported…if it had come from the police, or the club, or from the players themselves.”

The question then, is whether Channel 7 got the balance – between their obligation to protect the privacy of the AFL players and their duty to act in the public interest – right. Seven’s Melbourne news director Steve Carey contends that people at senior levels of sport who use illicit drugs fail to provide role models for kids. This view drove his decision to run the story, though he attempted to balance what he saw as the public’s right to know with the players’ right to privacy by omitting their names – though not the name of the club – from the broadcast.

Was Carey right to prioritise the interests of his viewers in a full picture of drug use in the AFL over the players’ and League’s interest in non-disclosure?

Certainly, if I‘d been in Carey’s shoes that fateful night, I would have made a different call. I support the AFL’s three strikes policy, which appears to have been the indirect target of the story Seven put to air. I would have prioritised the players’ expectations of privacy over the story, which I see as more of a “”of interest to the public" than “in the public interest” one.

But this is not the point. What matters is our acceptance that a balancing act was required, even if we disagree with the judgment of the balancer.

I’m not trying to bury Seven, or to praise the network, either. My point is simply that while we are right to feel angry about the unauthorized disclosure of private medical records, we need to direct our anger appropriately. Seven didn’t steal the medical records, or negligently allow them to be pinched. If they were ignorant of the fact they had been stolen (a very key if), then the network had a very real moral dilemma on its hands. One, it seems worth mentioning, that it and other news organizations may face again.

Journalists are often in receipt of unauthorized information, the broadcast of which is undoubtedly in the public interest. Deep Throat wasn’t authorized to guide Woodward and Bernstein to the Watergate scandal ,and Alan Kessing’s confidential report on security breaches at Sydney airport – which eventually led to a $200 million update of airport security – wasn’t supposed to find its way into the press, either.

What happens when a journalist is leaked the records of a candidate for high office who has been diagnosed with a fatal cancer he had failed to disclose to the public? Or when the psychiatric records of a convicted pedophile due for imminent release – showing several treating doctors deeming him incurable and likely to re-offend – fall off the back of a truck near a newsroom?

Will we all be screaming about the confidentiality of medical records, unauthorized disclosure and privacy rights then? Will we shoot the messenger?

Or will we recognize the fine and fuzzy line the news media tread every day to keep their profits healthy, yes, but also to ensure their responsibility to inform the public is met.

Publication history

Balancing public interest and the right to privacy  The Age Online