Australian Law Reform Commission releases the Serious Invasion of Privacy in the Digital Era

March 31, 2014 |

The Australian Law Reform Commission (the “ALRC”) has released its long awaited discussion paper on Serious Invasions of Privacy in the Digital Era (found here).

Submissions are due by no later than 12 May 2014.  That is a very short time frame given the size of the report, over 200 pages, and 47 recommendations.

The media release provides:

The Australian Law Reform Commission (ALRC) today released a Discussion Paper, Serious Invasions of Privacy in the Digital Era (DP 80, 2014). The Terms of Reference for this Inquiry ask the ALRC to consider the detailed legal design of a statutory cause of action and, in addition, other innovative ways the law might prevent or redress serious invasions of privacy.

The ALRC is seeking feedback from the community on 47 proposals for reform outlined in the Discussion Paper including a new Commonwealth Act that would provide for a statutory cause of action for serious invasions of privacy.

ALRC Commissioner for the Inquiry, Professor Barbara McDonald, said “Privacy is fundamental to enabling individuals to live dignified, fulfilling, safe and autonomous lives. It underpins many other freedoms of the individual, but it is a right that must be balanced with other fundamental values such as freedom of expression and with other aspects of modern society from which we all benefit. The design of a new cause of action reflects the balancing of these competing interests in carving out a level of protection of privacy that would see Australia meet its commitment to international norms/standards.

New technologies are constantly adding new ways to collect and use information about people’s activities, and to intrude into someone’s private life, challenging the usefulness of some existing laws. The ALRC proposals reflect the need to provide people across all of Australia with the same level of protection for their privacy and competing freedoms.” 

The ALRC invites individuals and organisations to make submissions in response to the proposals contained in the Discussion Paper, or to any of the research, argument and analysis provided.  This community input will help inform the development of final recommendations for reform that will be contained in our Final Report, due to be delivered to the Attorney-General by 30 June 2014.

The Discussion Paper is available free of charge from the ALRC website www.alrc.gov.au/publications/serious-invasions-privacy-dp-80 and is also available as an ebook. The ALRC prefers submissions via the ALRC online submission form: www.alrc.gov.au/content/privacy-subs-DP80. Written submissions can be posted to the Executive Director, ALRC, GPO Box 3708, Sydney NSW 2001 or emailed to privacy@alrc.gov.au.

Closing date for submissions is Monday 12 May 2014. Due to the very tight timeframe late submissions cannot be accepted.

Given the topicality of privacy generally and the specific legal issues it throws up this Discussion Paper is welcome.   One would hope the Government carefully considers the recommendations and embarks on some long overdue reforms in this area.  It is difficult to predict what will happen once the report is received by Government in June.  What is easy to predict is the absurdly hysterical reaction from the Australian and the shrill strident tones in opposition from its Legal Affairs editor, Chris Merritt.  Any time the whiff of a statutory right of privacy is caught on a distant breeze he churns out a bile filled oppositional screed.  Generally, but not always, he is careful to avoid the complications of facts, logic and analysis.  That assists in the flow, or at least that is the only inference that can be easily drawn from this distinctive style of journalism.  Usually the complaints made by him and a few other stagers brought in to say much the same thing, have the same old refrains:

  • restriction on freedom of expression; even though it exists in most other common law countries who have a bustling viable press and no shortage of commentary.  And the fact that privacy issues do not start and end with the media or even freedom of expression issues. And that every proposal for a statutory right of privacy has had an explicit defence relating to public interest and freedom of expression;
  • the current laws work just fine; sort of a cobbling together of the equitable breach of confidence/misuse of private information, nuisance, trespass and whatever else can be thrown together.  Even though some academics see no issue the broader and better view is that there are significant gaps that the current laws can not easily cover. Stretching breach of confidence is poor policy.  The UK courts have found that they are moving to develop a stand alone tort because breach of confidence, as properly understood, can not properly deal with the discrete particular issues in privacy.
  • the courts should develop the law; the courts in Australia have taken a different view.  They look to the legislature. At the trial level they have regularly rejected that argument.  Even in Giller v Procopets the Court of Appeal chose to ignore that submission and focus on breach of confidence;
  • there is no need for it; if the developments in technology in the last several years, if not the last decade, have demonstrated is that privacy invasive behaviours are becoming more, not less, common and more intrusive and damaging.  That there have not been individuals agitating on a legal level has more to do with the inadequacy of the law rather than a reflection on the good behaviours of individuals.  This argument is pretty much the same argument that would have been run just before Donohue v Stevenson, which instituted the law of negligence.  The legislature has regulated its operation over time but no one has seriously suggested it does not have a place in the legal framework.
  • it is just a plaything of the rich, famous and those with something to hide; this has always been a patronising and specious argument run by, generally, the pricklier members of the media.  Giller v Procopets a case involving privacy issues (amongst other matters) were not rich, famous or had anything to hide.  Test cases, by their nature, often are mounted by those with significant resources. But so what! It is a standing and silly myth that defamation cases are invariably or even mostly brought against media by those in power or of great wealth.  Those cases get the coverage.  The rest get head or resolved outside of the media spotlight.

It is to be hoped that all parties will contribute in a constructive way.  I have my doubts about whether the Australian will do so. That said, hope springs eternal.

 

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