Federal governments considers whether to legislate privacy laws…..

July 21, 2011 |

In today’s Age, Australian and on AM Justice Minister Brendan O’Connor foreshadowed having a serious discussion about introducing a law of privacy.  It is a very tentative first step, the release of a discussion paper later this year.  The Age provides:

The Gillard government will today move towards new laws that would allow Australians to sue for damages in the event of a serious invasion of their privacy.

Ahead of today’s announcement, federal Privacy Minister Brendan O’Connor told The Age the government was ”very serious about having this discussion” following the UK scandal. He said he was confident any change would preserve reasonable media freedom. ”There are two ideals we uphold as a government – freedom of speech, and people’s right to have a private life,” Mr O’Connor said.

The Minister’s press release says: 

The Minister for Privacy Brendan O’Connor today announced the Gillard Government will seek the views of the public on introducing a right to privacy in Australia.   A public issues paper will be issued shortly, canvassing the prospect of introducing a statutory cause of action for serious invasions of privacy.

“Right now there is no general right to privacy in Australia, and that means there’s no certainty for anyone wanting to sue for an invasion of their privacy,” Mr O’Connor said.

“The News of the World scandal and other recent mass breaches of privacy, both at home and abroad, have put the spotlight on whether there should be such a right.”

“This Government strongly believes in the principle of freedom of expression and also the right to privacy. Any changes to our laws will have to strike a balance between the two ideals.”

“We know that privacy is a growing concern for everyday Australians – whether it is in our dealings with individuals, businesses, government agencies or the media,” he said.

“Privacy is emerging as a defining issue of the modern era, especially as new technology provides more opportunities for communication, but also new challenges to privacy.”

“I’m keen to hear from everyone with a stake in the privacy debate – that includes individuals, businesses and of course the media,” Mr O’Connor said.

The Australian Law Reform Commission’s 2008 report into privacy laws made 295 recommendations for changes to privacy regulation and policy, including a proposal to introduce a statutory cause of action for serious breaches of privacy.   It is important to note that there are laws in place to deal with criminal offending related to privacy breaches, for example the Telecommunications (Interception and Access) Act outlaws phone tapping and other misuse of communications services.

An issues paper will be issued soon and a period of public consultation will follow.

The transcript of the AM story is:
TONY EASTLEY: At home the Federal Government says the UK phone hacking scandal has prompted it to bring forward consideration of tougher privacy laws in Australia. The Government says it will soon release a discussion paper on introducing laws to give people the right to sue for serious privacy breaches.   It was one of the recommendations from an extensive report into Australia’s privacy regime released three years ago.  The Government says it’ll help to address growing public concern over the News International scandal. But the Opposition says the two shouldn’t be linked. 

Naomi Woodley reports from Canberra.

NAOMI WOODLEY: In 2008 the Australian Law Reform Commission made almost 300 recommendations in an extensive report on Australia’s privacy laws and practice.  When the Government began addressing the recommendations it deferred action on the call for a specific right to privacy.   But the Justice and Privacy Minister Brendan O’Connor says the News International scandal in the UK has now prompted the Government to bring forward a debate on the issue. It will release a discussion paper shortly.

BRENDAN O’CONNOR: All we’ve done in this instance is bring those matters forward because we think there needs to be now a proper debate about whether we’ve struck the right balance between two very important ideals – the freedom of expression and freedom of the press on one hand and the right for a private life, the right to privacy.

NAOMI WOODLEY: But the Government already has telephone intercept laws in place if phone hacking was going on in Australia and there’s no evidence that it has been. There are laws to deal with it. So isn’t it a bit dangerous to link this to the News of the World scandal in the UK?

BRENDAN O’CONNOR: Well I think it’s created a public expectation that the Government consider these matters.   And we’re not suggesting that the gross invasions of privacy that have occurred in the United Kingdom in this recent scandal are happening here.  And yes we do have some criminal sanctions in place in order to penalise organisations or people who invade people’s privacy in that manner.   But there is no general right to privacy in this country.

NAOMI WOODLEY: The Opposition’s communications spokesman Malcolm Turnbull says a debate about a statutory right to privacy is needed but it shouldn’t be linked to events in the UK.

MALCOLM TURNBULL: We really do need to make sure that any discussion doesn’t just become a sort of antipodean re-run of the News of the World inquiries in the UK.   This has got, if we’re going to look at privacy we should look right across all media and have an honest debate. How much privacy do we believe we are entitled to and to what extent should that limit the right of the media to free speech and freedom of the media?

NAOMI WOODLEY: News Limited has already announced its doing an audit of its Australian reporting to ensure no improper methods have been used. The chair of the Press Council Julian Disney says two former Supreme Court judges have now been appointed to independently assess that audit.

JULIAN DISNEY: Firstly they’ll be consulted in the way in which News Limited intends to conduct the review. And they’ll have an opportunity to comment on an ongoing basis as to whether they think the methods being pursued are adequate.  And then of particular importance they will be able to comment on whether they think appropriate action has been taken by News Limited in response to anything that’s found out.

In today’s Australian article Tony Abbott warns government not to use privacy law to censor the media the confusion about and innate resistance by some to an enforceable right of privacy is set out in the traditional fashion.    In this case the piece refers to and quotes Justin Quill saying:

A leading media lawyer today warned the creation of a statutory right to privacy would strangle press freedom while shielding the rich and powerful from scrutiny.

Lawyer Justin Quill, who acts for News Ltd and other media companies, said there was already a raft of privacy protection laws and defended the legal balance between media and personal freedoms as about right.

“There’s no doubt in my mind. This is a law for politicians, the rich and the famous and politicians,” he told The Australian Online.

“What we will see is not the average punter trying to protect their privacy,” he said.

“We will see the rich and famous bringing action, paying off the pools and Ferraris a little bit quicker.”

Mr Quill described the News of the World scandal in Britain as “irrelevant” to the privacy debate in Australia, saying there was no evidence to suggest similar misconduct was occurring here.

He said the creation of a right to privacy would impact heavily on the ability of media companies to report the news.

“It will increase the number of actions brought against media organisations,” he said.

“At the moment you can’t get an injunction for a threatened defamation. What this will do, it will found a basis for seeking an injunction. And that’s what we will see more of.”

Those comments, well crafted and oft repeated, are at best superficial.  And generally wrong.  A few for examples:
  • a “raft of privacy protection laws” already in existence.  What are they? Presumably he refers to the Commonwealth Privacy Act 1988 and Telecommunications Act and the Victorian Information Privacy Act 2000, the Health Records Act 2001 the Surveillance Devices Act 1999 and the Charter of Human Rights and Responsibilities 2006 and its equivalent in other states.  Most of those acts regulate the protection of data and where they don’t, such as the Surveillance Devices Act, they do not give a person a right to protect his or her rights against a breach of those acts.  So while there are privacy protections in existence they are very limited in scope. Outside of use of surveillance and telecommunications devices in particular specificed situations and the protection of documents from release and use by government bodies or large corporations the protections are very limited and common law based.  Remedial action for breaches of statutory provisions is in the hands of others, such as the Privacy Commissioner or prosecutors for criminal breaches.  And the interests of those authorities vary. None provide a person with an enforceable right to take action on his or her own behalf.  So the raft of laws is a slim, lightweight vessel with many holes.
  • Privacy laws are for the protection of politicians and the rich and famous and “what we will see is not the average punter trying to protect their privacy.”  The first assertion is the typical complaint. A right is a right.  It should be enforceable by any person. The claim that it will not protect punters is just plain wrong.  The leading authority on privacy protection in Victoria and Australia is the 2008 Court of Appeal decision in Giller v Procopets.  Both parties were and are ordinary citizens.  Similarly it is a myth that defamation is only a law for the rich.  While media organisations feature prominently in decisions, as do the rich and famous, many defamation cases are between “punters.”
  • “the creation of a right to privacy would impact heavily on the ability of media companies to report the news.”  This is an assertion with very little substance behind it.  In the UK the right to privacy has been in existence in the common law since the House of Lords decision in  Douglas v Hello (arguably even before then in the lower courts decision in this proceeding).  The decision in Mosley v News Group Newspapers Ltd further refined the cause of action.  There is the Human Rights Act 1998 and Article 8 of the Convention of Rights and Freedoms which provides “Article 8 Right to respect for private and family life;1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The US Supreme Court recognised a right to privacy in 1965 decision of Griswold v Conneticut.   There are statutory protections in the form of the Privacy Act 1974 and the Children’s Online Privacy Protection Act of 1998.   In both the United States and the United Kingdom the press has been able to function.
  • “It will increase the number of actions brought against media organisations.”  Perhaps, perhaps not.  That depends on whether the media organisations breach any privacy laws. And the depends on how broad or narrow the protections are drafted, what examptions are allowed and how the media behave.  It is an almost meaningless and baseless prognostication.
  • “it will found a basis for seeking an injunction. And that’s what we will see more of.”  Again perhaps, perhaps not.  Whether a party can get injunctive relief depends on the drafting of any statutory right and then whether a court will be prepared to grant such relief.  In the UK parties have sought and obtained injunctive relief.  But that has not been successful all the time or effective on other occasions.  But is there something wrong per se with having a right to injunctive relief in some circumstances.  In the UK the press has been able to operate in an environment where an aggrieved party can seek injunctive relief.  Whether there will be flurry of applications seeking injunctive relief is a matter of pure speculation based on not very much. There is no legislation in existence.  There isn’t even an exposure draft of a bill.  There isn’t even a discussion paper.  There might not even be a right to obtain an injunction.  And yet there are already screams about “more of” injunctive relief (more of from what is a real question).

As with all statutory rights the protections and the exemptions which determine whether it is the effective right to privacy and reaches the right balance of protecting privacy against freedom of expression depends on what the statute says and how well it is drafted.  Arguments in the abstract, especially involving wild predictions, doesn’t assist at all.

The Australian Privacy Foundation’s position on a statutory right to privacy is found here.  In a very good article on today’s developments in itnews, Canberra mulls right to Privacy, the ALRC proposal is neatly summarised as:

To establish a claim for invasion of privacy, a user must show that there was a reasonable expectation of privacy; and the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities.

A court would also be asked to take into account whether the public interest in maintaining the claimant’s privacy outweighed other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).

Defences against an action would include that the act was required by law or the conduct was incidental to the exercise of a lawful right of defence of person or property.

In Watchdogs welcome Australia’s right-to-privacy move the Australian Privacy Foundation and Electronic Frontiers Australia have welcomed the government’s announcement introducing a statutory right to privacy saying:

“I think they’ve been sitting there coiled and ready for action, and now they’ve finally seen their opportunity,” APF chair Professor Roger Clarke told CSO Online. “I think the Minister’s timing is impeccable,” he said, as the government can begin the consultation with minimal media opposition.

The only opponents of a right to privacy for individuals being enshrined in law have been the major media companies and those who publish through them, Clarke said.

“In broad terms, EFA is strongly pro a statutory right to privacy,” spokesperson Stephen Collins told CSO Online, but he warned against undue haste.

“More than anything, the entire process needs not to be knee-jerk, responding to things such as News of the World, which as we both know, are the actions of a set of criminals who regardless of any legislated right to privacy wouldn’t have been likely to have stopped doing what they were doing,” he said.

Both organisations stressed the need for balance.

“Any legislation that is an outcome of this review needs to balance the right to privacy against reasonable need to know, both for law enforcement purposes and, for example, when a family member of someone needs information on their health status that medical staff might otherwise be reluctant to reveal,” Collins said.

The APF’s stated position on a right to privacy calls for a law that is available to individuals, but not “legal persons” such as companies; enables a court to grant injunctions, award damages, and impose penalties; requires the court to balance privacy against issues such as “the public interest”; and that provides a clear framework and criteria for evaluating a  public interest defence.

In a related issue the Australian today reports on the Attorney’s General considering legislation to permit parents to access their children’s Facebook accounts. It typifies the piecemeal approach to privacy regulation to date.
All those seminars given and blogs I have posted on privacy seem all the more worthwhile now.

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