Today’s question is about radio communication. My correspondent says:
I note that in one of your prior blogs you wished not to delve into the area of communications law but I feel this remains well enough in the scope of emergency services and this is my last chance to ask it, so here goes.
Recently, prominent media networks in NSW have been intercepting and recording NSW Ambulance transmissions, and then inserting them into their news stories about the same events. While playing often dramatic emergency service radio traffic is nothing new for the media, what they have recently begun doing is intercepting and playing what are known as Code 3s.
To provide some context, when transporting a seriously ill or injured patient to a major hospital, the ambulance crew will communicate with the hospital via radio to conduct an in depth patient hand over. This is known as a code 3. It takes place on a separate radio channel to the mainstream talk groups and divulges a substantial amount of intimate patient details, including acute description of injuries, history of illnesses, social situation etc.
The radio channels these hand overs take place on are able to be scanned and listened to by anyone with the right equipment. In this case, the media networks are recording these communications and then replaying them within their news stories to thousands of people, not only on TV but embedded in online stories permanently.
My questions come to you from two angles, one of communications law and one of privacy law.
1) What is the legal standing of intercepting and rebroadcasting any emergency service radio communications, regardless of content?
2) What is the legal standing of rebroadcasting confidential medical information obtained via intercepted radio communications.
2a) Are media networks liable for rebroadcasting confidential medical information?
2b) Are paramedics liable for broadcasting confidential medical information into what could be considered an open domain in the first place?
I cannot take this much further than in my post Intercepting emergency service pager messages – amended (March 9, 2016). There I said
… there is a Radiocommunications Act and a Telecommunications Act. Section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) makes it an offence to intercept a Telecommunication but there is no equivalent for radiocommunications. Put simply it’s an offence to intercept Telecommunications but not Radiocommunications, but what’s the difference?
It would seem if they are intercepting radiocommunications, it is not illegal.
Rebroadcasting is the journalists defence, if something comes into my hands I can publish it if I did nothing illegal to obtain it.
Media networks would be liable if their publication causes damage eg if it is defamatory. There is no general right to privacy. The privacy legislation imposes obligations upon relevant agencies to try and control access to their information, but it is not a right enforceable against the world.
Paramedics have a duty to try to maintain their patient’s privacy, but they only have the tools they have. If this is a real issue the obligation would be on the ambulance services to try to use encrypted radio or use a telephone and get the paramedics to ring the information in rather than use a radio. Equally paramedics should be careful and think about what they need to say. No doubt that is why relevant codes are used (such as Code 3).
The situation is a think very different where paramedics and ambulance services invite media to accompany them. I thought it was interesting in a recent news story where paramedics were holding up a sheet to protect a patient’s privacy but on another channel, paramedics were wearing cameras to record their interactions – How are reality ambulance shows legal? (Updated) (October 9, 2018).