Mindframe National Media Initiative response to:
A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy
Issues Paper
November 2011
Submission prepared by:
Jaelea Skehan (Program Manager), Marc Bryant (Project Manager) and Siobhain Lowthe (Senior Project
Officer), Mindframe National Media Initiative, Hunter Institute of Mental Health
Telephone: 02 4924 6900, Fax: 02 4924 6901
Email:
The Hunter Institute of Mental Health is pleased to be able to provide the following submission, on behalf of the Mindframe National Media Initiative (see Attachment A for more information), to the Department of Prime Minister and Cabinet. Included are answers to selected questions posed in the Issues Paper “A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy”.
The suggestions made by The Hunter Institute of Mental Health are based on the best available evidence about the impact of media portrayals of suicide and mental illness (see Attachment B) which informed the development of resources for Australian media and other sectors available at www.mindframe-media.info.
All media codes of practice in Australia acknowledge the body of evidence regarding the portrayal of suicide and mental illness and the potential risks for people who may be vulnerable including persons affected by suicide or persons experiencing acute symptoms of mental illness. The Mindframe National Media Initiative makes the following recommendations in order to provide specific advice about respecting the privacy, and in effect the wellbeing, of people who may be vulnerable with regards to suicide and/or mental illness.
Depending on the acuity of their illness or grief, there is substantial research evidence indicating that people experiencing symptoms of mental illness or people affected by suicide are groups that are potentially more vulnerable in their dealings with media. In some instances, the impact of grief or illness on a person’s cognitive capacity can mean that some people in these situations require a different approach from standard industry practices (such as the processes for protecting privacy).
Whilst this submission makes recommendations about the potential vulnerability of people living with symptoms of mental illness or affected by suicide, a causal relationship between these circumstances should never be assumed. The existence of mental illness or suicide bereavement is not, in and of itself, sufficient to render a person incapable of managing their own privacy needs.
Question 1: Do recent developments in technology mean that additional ways of protecting
individuals’ privacy should be considered in Australia?
Mindframe recognises that the convergence of technologies has impacted upon media practice and the privacy considerations of people who may be living with a mental illness or affected by suicide.
Media intervention at crucial moments in the midst of a tragedy or even later when calling upon someone to recount a major event in their lives can be traumatic and can have long-term impacts on their emotional wellbeing and mental health. It can also exacerbate existing mental health conditions. These issues need to be considered irrespective of the platform journalists and others are working across.
The convergence of technologies in the media environment has made it more challenging for people (especially those who may be more vulnerable) to seek remedy in situations where privacy has been breached, particularly via online platforms. Rather than additional protections being established via statutory provisions, Mindframe recommends more effective use of
existing media codes of practice which already include provisions that guide media conduct with
regards to privacy, irrespective of platform.
Mindframe urges that a collaborative approach between legal, media and other publishing organisations (including those who facilitate publishing) which empowers and takes into account the privacy needs of people who may be vulnerable, will be the most effective way to facilitate privacy protection across existing and emerging technological platforms. This may need to include additional support and guidance for organisations and individuals about the application of existing codes to new technological platforms.
One issue for consideration with new technologies may involve the way in which online comments are moderated and published, especially if these comments do not fit within media codes and/or guidelines related to privacy. It also needs to be clarified whether blogs, or comments by the community are also fit within the privacy guidelines if they are published on media websites. In essence, can a person respond to a breach of privacy when it relates to a comment made by a community member where the media organisation has published that comment?
Question 4: Is ‘highly offensive’ an appropriate standard for a cause of action relating to
serious invasions of privacy?
Mindframe does not have a view on whether such a provision should be legislated or not. Regardless of the outcome, however, a number of issues related to the privacy of those living with a mental illness or those affected by suicide should be considered.
Based on the international evidence that media portrayal of mental illness and suicide can have adverse impact on people who may be feeling vulnerable or distressed, Mindframe suggests
that this standard, or media codes of practice as they stand, should be expanded to refer to
“highly offensive or highly distressing” invasions of privacy.
Such an addition is necessary to recognise that invasion of privacy can have a significant effect beyond offense, with serious and potentially life-threatening impacts on people who may be vulnerable at the time.
The right to privacy has always raised an ethical dilemma for journalists and others working in the media. In particular, the journalist’s right to intrude on that privacy. As Richards (2005) points out, one commonly invoked justification for intrusions into privacy is that the information gleaned is “in the public interest”. As he states though, “Not only is ‘the public interest’ notoriously difficult to define but, in those cases where a decision to intrude on someone’s privacy appears to be clearly in the best interests of the wider society, this is seldom provable at the time the decision is taken.”
Therefore, the decision to report a person’s mental illness or someone’s suicide risk (as two examples) may be influenced by community misunderstanding or journalist misunderstanding rather than an identified public interest. For example, someone’s mental illness may be reported at the time of an arrest for a criminal matter, before the existence of mental illness is either confirmed or determined as relevant. In the same way, a journalist may decide that a suicide death meets the criteria for a public interest story, without considering the impact on the family or friends of the person and their right to private grief if requested.
Question 8: Should any legislation allow for the consideration of other relevant matters, and, if so, is the list of matters proposed by the NSWLRC necessary and sufficient?
As indicated above, Mindframe does not have a view on whether such a provision should be legislated or not. Regardless of the outcome, however, the following points should be taken into consideration.
Mindframe supports the proposition that the legislation, or otherwise, should allow for the consideration of other matters. In particular, Mindframe urges that (cl 74(3)(a)(v)) of the list proposed by the NSWLRC is a particularly vital inclusion to protect the unique privacy needs of people who may be vulnerable (including some people affected by suicide or some people experiencing symptoms of mental illness). Mindframe would support more detail being added to this clause to identify potentially vulnerable groups, including some people affected by suicide or some people experiencing symptoms of mental illness.
ATTACHMENT A: The Mindframe National Media Initiative
The Australian Government’s Mindframe National Media Initiative (Mindframe) aims to encourage responsible, accurate and sensitive media representation of mental illness and suicide, and to advocate on behalf of community concerns relating to media depictions that stigmatise mental illness and/or promote self-harm.
Mindframe is funded under the Government’s The Living Is For Everyone (LIFE) Framework for the “Prevention of Suicide in Australia” and is guided by the National Media and Mental Health group (including representatives from peak media bodies in Australia). Programs under the Mindframe Initiative include: the Mindframe Education and Training Program (managed by the Hunter Institute of Mental Health); and the SANE Media Centre, including the StigmaWatch program (managed by SANE Australia).
The Mindframe Education and Training Program (managed by the Hunter Institute of Mental Health) works with five broad target groups: News Media; Mental Health and Suicide Prevention Sector; Universities; Police; Australian Film, Television and Theatre. The objectives of the program are:
· To build a collaborative relationship with the Australian news media (print, radio, television, and online news) through the development and dissemination of evidence based resources and sector engagement to enable more accurate and sensitive coverage of suicide and mental illness;
· To influence tertiary curriculum so that graduates in journalism and public relations will be aware of and able to respond to issues relating to suicide and mental illness;
· To support sectors that work with the media (such as the mental health sector, the suicide prevention sector and the police) to facilitate better understanding about issues to consider when working with the media around mental illness and suicide;
· To provide practical advice and information to support the work of scriptwriters and others involved in the development of Australian film, television and theatre, to help inform truthful and authentic portrayals of mental illness and suicide.
The Hunter Institute of Mental Health provides professional development to the media, but generally does not engage with media directly on the way they have reported or portrayed suicide or mental illness. Responding to any community complaints or congratulating media for appropriate reporting are covered under the role SANE Media Centre. More information on the SANE Media Centre is available from www.sane.org.
ATTACHMENT B: The evidence
Suicide: the evidence
In 2010 an updated independent critical review of national and international research evidence related to news and information media was published which indicated an overwhelming need for continued media caution due to the risk of copycat behaviour (Pirkis & Blood 2010). This constituted an update of an earlier review looking at the link between media portrayals of suicide and suicidal behaviour (Pirkis & Blood, 2001a, 2001b) and was accompanied by a review of studies of the entertainment media (Pirkis & Blood, 2009).
In total, 97 studies on the association between presentation of suicide in news and information media and actual suicidal behaviour were identified.
Key findings of Suicide and The Media: A critical review (2010) included:
· Reports of suicide deaths can influence copycat acts in some cases;
· The risk of copycat behaviour is increased where the story is prominent, is about a celebrity, details method and/or location or glorifies the death in some way.
Both 2010 and 2001 reviews present strong evidence for a relationship between media reporting and increases in completed and attempted suicide rates. These increases cannot be explained by suicides that may have occurred anyway, as they are not followed by commensurate decreases in rates.1
Aspects of reporting contributing to risk
Systematic reviews of the international research evidence have observed that the imitation or ‘copycat’
suicide is more evident under certain circumstances:
· Risk is related to the prominence of the coverage, with repeated coverage and prominent news items most strongly associated with subsequent suicidal behaviour.2
· It is accentuated when the reader or viewer identified with the person as either someone that is similar to themselves3 or someone they admire such as a celebrity.4 5 6 7
· Certain subgroups in the population (e.g. young people and people experiencing a mental illness)
may be particularly vulnerable.8 9
· Explicit descriptions of method or location have been linked to increased rates of suicide by that particular method or at that particular location. 10 11 12 13
Mental Illness: the evidence
According to international research, mental illness has historically been portrayed negatively in the mass media in both news and entertainment media. This has been supported by Australian studies. However recent Australian research suggests reporting may be improving.
· Negative reporting of mental illness appears to influence community attitudes. Participants in many of the studies surveyed considered the media to have an impact on their attitudes towards
mental health and illness. Those who cited the media as the most important source of their information and beliefs tended to have more negative attitudes towards mental illness.
· The presentation of negative images of mental illness in both fiction and non-fiction media results in the development of more negative beliefs about mental illness.
· The presentation of positive images does not appear to balance negative media portrayals.
· There is some evidence that mental health promotional campaigns impact positively on community attitudes.
In 2001, Francis et al 14 investigated literature on the portrayal of mental health and illness in the media, the impact of portrayal on community attitudes towards mental illness, and the impact of mental health promotion in the media:
· 51% of respondents in a national study in the US felt that depictions of people with mental illness in the entertainment industry were negative, and 43% believed coverage of mental illness in the news media was mostly negative.15
· 75% of consumers of mental health services in a UK study felt that media coverage was 'unfair, unbalanced or very negative', while 50% believed media portrayal of mental health issues had 'a negative effect on their mental health.16
· Several studies show that greater use of electronic media is associated with less tolerant attitudes towards people with a mental illness.17
· A major German survey showed that the media were the most important source of information about mental illness, and that negative media reports were more commonly recalled than positive reports. Further German studies have found a trend towards avoidance of people with schizophrenia by those with a high level of television consumption. In addition, negative newspaper articles adversely affect attitudes towards those experiencing schizophrenia.18