Victorian Law Reform Committee inquirty into sexting recommends a statutory right of privacy

May 31, 2013 |

The Victorian Law Reform Committee inquiry into Sexting has produced a 252 report.  It is found here.

The focus in the media has been on the recommendation to reform the law so as not to target those who were not intended to be the target of prosecutions, such as young teenageers.  The Committee recommended a range of defences to avoid the unintended consequences of how the law currently operates.  In its deliberations the Committee looked at the broader issues involved.  One of those issues was privacy.  Not surprisingly the press coverage has glossed over this part of the report.

Chapter 7 of the Report reviews the privacy protections in place in Victoria (and Australia).  The Committee endorsed the Victorian Law Reform Commission’s recommendation to introduce a statutory right of privacy.  It relevantly stated: A privacy tort for Victoria
The Committee notes that legislating to provide a cause of action forinvasion of privacy is a significant task, and that it would comprise a fundamental change to the Australian legal landscape, with potentially far-reaching effects. Each of the law reform commissions have expended time and resources developing proposals for a privacy cause of action. While the Committee received limited evidence on broader issues surrounding the introduction of a privacy tort, it did receive evidence about how a privacy tort could assist to protect people who suffer an invasion of privacy from occurrences of sexting. Accordingly, the Committee has limited its consideration to a form of cause of action for invasion of privacy that would adequately protect those who are victims of a sexting-related breach of privacy.
In this context, the Committee believes that the VLRC’s proposal for a cause of action for the offensive misuse of private information strikes an appropriate balance between protecting a person’s privacy, and not unnecessarily constraining freedom of speech. The relevant VLRC recommendations are listed in Appendix Four. The Committee supports the VLRC’s recommendations insofar as they relate to a cause of action for a serious invasion of privacy by misuse of private information. If implemented, the Committee believes that the VLRC’s proposal would provide an appropriate mechanism for a person to seek civil recourse where they have suffered embarrassment, humiliation or distress because someone else has distributed, or has threatened to distribute, an intimate image of that person. As this proposed cause of action is fairly limited, the Committee believes that it could be legislated without causing undue repercussions in terms of restricting freedom of speech or impinging unduly on personal freedoms. It could also be legislated immediately, leaving open the possibility of broadening the legislation at a later date to cover a wider range of conduct that could constitute a serious invasion of privacy.
The VLRC recommended that injunctions should be a remedy available where a serious invasion of privacy is established. The VLRC indicated in the report that it was using the term ‘injunction’ broadly to refer to any order of a tribunal or court that compels specified conduct, and stated that this would include injunctions to prevent the initial or ongoing publication of material, and orders to direct a person to apologise for privacy-breaching conduct.
The Committee suggests that orders for the delivery up and destruction of material – a remedy that could be of some importance in sexting cases – should also be included within the ambit of injunction orders.
Recommendation 12: That the Victorian Government consider introducing legislation to create a statutory cause of action for invasion of privacy bythe misuse of private information, following recommendations 23, 25, 27, and 29 to 33 of the Victorian Law Reform Commission’s Surveillance inPublic Places:

The Committee has endorsed the Victorian Law Reform Commission’s proposal on a statutory right to privacy.  The VLRC’s recommendation differs in style but not substance to the Australian Law Reform Commission’s recommendation as well as that of the New South Wales Law Reform Commission’s report on the same subject.  Each law reform body that looks at the issue sees the gap in the law and has prescribed a workable reform.  The Committee has couched its recommendations in somewhat timorous terms, worried about freedom of speech issues.  Freedom of speech is a key and fundamental right but the mantra chanted by some elements of the media that a right to privacy will chill free speech is nonsense.  The cause of action exists in the United Kingdom and the press operates there.  The other myth is that a right to privacy necessary involves free speech issues.  It doesn’t.  As in the case of sexting it may, and often does, involve intrusions by a person, company or government body upon the privacy of a person.  Where is the freedom of speech in a person using private information to torment another or intruding into their private speech causing distress. Propoerly constructed and with adequate defences to cover free speech and public interest issues it is a viable cause of action which will both get the balance right and protect freedom of speech generally, reporting and political discourse.  There are privacy torts in Canada, the USA and New Zealand and an equitable cause of action in the UK.  The media in each jurisdiction functions as well there as here.  The media’s problem is more structural and the challenge is adapting to a rapidly evolving market rather than worrying about a privacy tort.  The complaints about floodgates has not been borne out wherever the tort was introduced and where it exists.

Legislatures are notorious in ignoring social change if the price is annoying a pressure group.  With privacy the social change is the exponential growth of technological means to interfere with individual’s privacy and the pressure group is the mainstream (but diminishing) media.  At best it is poor policy and at worst it means cobbling together a hasty response when the need becomes too great to ignore.  Benjamin Franklin said it best “You may delay but time will not.”

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