Michael Kirby calls for reform of privacy laws

May 4, 2016 |

The former High Court justice Michael Kirby has had a very long history with privacy and data protection issues.  He was involved in the development of guidelines which became part of the OECD Data Guidelines in 1980.  In Former High Court judge Michael Kirby calls for urgent reform of privacy laws he is reported as calling for the New South Wales State Parliament to enact a statutory right to privacy.  Much of what he is reported as saying is well known to privacy practitioners; there is a very significant gap in the civil law, the criminal law has gaps, the Federal Parliament is not prepared to remedy the problem  and that states can take the lead and legislate for such a privacy casue of action.  What he did note which is not well enough understood is that the privacy breaches are actually increasing.  That makes the need for reform much greater.

The article provides:

Former High Court judge Michael Kirby has taken aim at the state of political “paralysis” in Australia on privacy law reform and urged NSW to introduce robust new laws allowing people to sue for damages over the publication of intimate photographs and other private information.
Former High Court judge Michael Kirby speaks out in support of changes to privacy laws that would see damages suits in NSW for ‘revenge porn’.

State Parliament’s law and justice committee called on the Baird government this year to pass laws giving people a legal right to sue for serious invasions of privacy, after decades of inertia by successive federal and state governments.

The inquiry was triggered by a rise in “revenge porn”-style cases, where compromising photos and videos are posted online by disgruntled former partners.
Michael Kirby wants changes in the law as he says the number of invasions of people’s privacy is increasing.
“The time has come for action to be taken,” Mr Kirby told Fairfax Media.

He said proposals for privacy law reform had “been before the federal and state parliaments many times, at least four major considerations in the past 30 years”.
“It’s now become a laughing stock. Meanwhile, privacy invasions are actually increasing,” Mr Kirby said.

In a blistering speech in Sydney on Monday night, Mr Kirby lambasted the media for a “decline in … journalistic standards”.

He pointed to “shocking” invasions of privacy by the press, including the hacking of murder victim Milly Dowler’s mobile phone by the now-defunct UK tabloid News of the World, and “the confronting surveillance of [Sydney bomb hoax victim] Madeleine Pulver”.

Mr Kirby was on the High Court in 2001 when it was asked to depart from existing legal authority and declare Australian law recognised a civil action – or tort – allowing people to sue for invasion of privacy.

The court did not do so because the facts of the case were not suited to the development of the law. But it left open the possibility that it may be done in future cases.

Since then, the Australian Law Reform Commission and other bodies have called for a new action for serious invasions of privacy to be created by parliament rather than the courts. The federal government has not supported the push.

Mr Kirby said NSW should take the lead in changing the law, which could then be “copied in other jurisdictions”.

“I think it would be better if we had a national standard on this but the federal parliament isn’t going to be doing it any time soon and the NSW parliament has its own responsibilities for the citizens in NSW,” he said.

Under the NSW committee’s proposal, people could sue for damages if they had a “reasonable expectation of privacy” in the circumstances and the invasion of privacy was “serious”. There is a public interest-style test designed to limit incursions on freedom of speech.

In most cases, the invasion of privacy would need to be intentional or reckless. But governments and corporations could also be pursued for damages over “big data”-style privacy breaches committed negligently.

People seeking protection against serious invasions of privacy, including the circulation on social media of sex tapes by disgruntled former lovers, have been forced to rely on a patchwork of civil and criminal laws in NSW, which often fall short of providing adequate remedies.

Mr Kirby pointed to the example of one woman who gave evidence at a private hearing before the NSW committee that her genitals were photographed during a medical procedure by a nurse using an iPhone and shown to other nurses.

“It was taken as a joke; it wasn’t taken for sexual reasons and therefore it fell outside the criminal laws, which deal with taking photographs for gratification,” he said. “This is a definite established gap in our law.”

 The story has been run by the ABC with Privacy laws: Michael Kirby’s push to allow legal action over serious personal invasions and Lawyers Weekly with Kirby backs ‘long overdue’ NSW privacy reform.

One Response to “Michael Kirby calls for reform of privacy laws”

  1. Michael Kirby calls for reform of privacy laws | Australian Law Blogs

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