There is a tension between the media’s right to report on cases of child abuse and a school’s duty to manage the complex issues of confidentiality and privacy for members of its school community.

There are benefits to the media reporting on child abuse cases.  By drawing attention to the status of children in society, the media is a core contributor to the social project of condemning child neglect and abuse, advocating the best interests of the child and also ensuring that public concern for children remains on the political agenda. Media reporting also holds different parties to account, ensuring that schools uphold their legal obligations and child protection services continue to safeguard the rights of the child.  For these reasons, the positive role that the media can play in society can't be denied.

In this sense, the media have played a major role in defining what is 'normal' and what is 'deviant' in society, thus contributing to definitions of what is, and what is not, considered to be child abuse — a phenomenon described as 'legislation by tabloid' (see Goddard and Saunders, 'Child Abuse and the Media').

The Royal Commission into Institutional Responses into Child Abuse has been crucial in revealing the flaws of the existing child protection system by placing a spotlight on the failure of child protection agencies and mandatory reporting procedures. Alongside the Commission, mass media has played a vital role in publicising issues brought to light by the Commission. The benefits of the 'investigative partnership' between the Commission and the media include improving institutional risk aversion, advocating for greater reform and increasing public awareness.

However, the important need to increase public awareness of child abuse can have damaging consequences. Whilst being a vital source of information, the media is commonly criticised for sensationalising more grotesque cases of child abuse in order to draw and maintain large audiences. The media’s propensity to sensationalise the trauma of children and trivialise serious problems make publication of stories highly problematic.

When a case of abuse involves a school, the school and various members of the school community can be implicated and exposed to public scrutiny, leading to emotional and psychological harm.

The rights of the child

The United Nations Convention on the Rights of the Child (1989) clearly states that no child "shall be subjected to arbitrary or unlawful interference with his or her privacy" (Article 16).

In all Australian jurisdictions it is illegal to publish any matter which contains particulars likely to lead to the identification of a person whom a sexual offence is alleged to have been committed (for example, under the Judicial Proceedings Reports Act 1958 (Vic) and the Crimes Act 1900 (NSW)).  There are no special provisions which allow parents, guardians, custodians or anyone else to release information on behalf of the child, save the child consenting themselves. Where a child does consent, a court may be asked to examine whether that consent was 'informed consent' - was the child aware of the consequences of losing his/her anonymity?

Where the media is involved, a court will often order that the child’s identity be suppressed, photographs of the child be changed to protect their identity and the child’s right to privacy be respected in all instances. Courts have held that this does not affect the “news value” of the case, nor prevent the publication of matters of public record or of significant public interest.

Accordingly, the media is prohibited from releasing any identifying information of the victim following instances of child abuse. In contrast, the identity of an accused will only be protected in very exceptional circumstances (for example if they are a child (aged under 18) themselves).

The role of the school

Schools have a challenging role to play in situations where information about an incidence of child abuse involves a member/s of its school community; including victim, perpetrator or reporter.

A school will be bound by the APPs in the Privacy Act 1988, requirements under State/Territory mandatory reporting laws and their common law duty of confidentiality.  In addition, in NSW, school counsellors have confidentiality obligations under the Health Records & Information Privacy Act 2002.

Above all, once a school becomes aware of an incident of abuse it must ensure that the identities of the reporter and the child are protected to the extent required by State or Territory law. A school must also ensure that it handles personal information in accordance with the APPs.

A school's child protection policies and procedures should include information for reporters explaining if/when their identifying information will be kept confidential and when it will not.  Such information will help to assure a potential reporter about their rights and encourage them to make a report (where they may otherwise be considering not making a report due to fear of being identified).

Religious schools, such as those of the Roman Catholic faith, cannot rely on any religious privileges such as the confessional seal, to prevent them from making a mandatory report or giving evidence in legal proceedings or a Royal Commission.

In terms of the school's right to privacy, if a school is involved in civil proceedings relating to an incident of child abuse (for example a negligence claim against the school), whether or not the school's identity will be protected is dependent on the court deciding whether it is necessary, for the proper administration of justice, to depart from principles of open justice in favour of suppressing a school's identity.

How do schools balance media attention with respect for privacy?

The fast-paced nature of mass media today, particularly with the rise of social media, means that audiences are no longer localised and directly engaged with the matter at hand. The 24-hour news-cycle means that audiences have become wider and information is now readily shared, reposted, emailed and blogged by all online users, to the extent that the truth of information becomes more and more diluted.

Schools have come to terms with their role in managing publicity around a crisis. Where a child abuse incident has occurred and the media has drawn attention to the incident (in compliance with legal obligations), schools must act to protect the members of the school community involved in the incident.  Schools must ensure that staff are trained on maintaining confidentiality which includes maintaining confidentiality during a reporting process and not talking to the media if an incident is publicised.

Where a member of the school community is involved in an incident of abuse against a student, the school must develop a media strategy to deal with the media attention that may result.

Schools must ensure that information remains factual, the child’s trauma is not trivialised or sensationalised for entertainment value, the privacy and anonymity of all parties is protected and it is clear to media audiences that all mandatory reporting procedures have been complied with.

Schools may implement:

• privacy and media policies setting out clear legal obligations and staff requirements;
• a media register to maintain a record of all media releases;
• clear media guidelines within existing critical incident policies; and
• media training programs for all executive staff.

What media policies and practices does your school have in place?