Peter A Clarke

The Indian Supreme Court, in a unanimous decision of Justice K S Puttaswamy (Retd) & anor v Union of India & ors, has today found that individual privacy is a fundamental right. It is a comprehensive decision running to 547 pages and 5 years in gestation.  Even so India has recognised such a right ahead of Australia.

This event has been reported by Reuters with India’s top court rules privacy a fundamental right in blow to government, the Hindustantimes with Supreme Court verdict on right to privacy: All you need to know about the case, arguments and what’s next and Indian Supreme Court in landmark ruling on privacy (among others).

The BBC article provides:

India’s Supreme Court has ruled that citizens have a fundamental right to privacy, in a landmark judgement.

The judges ruled the right to privacy was “an intrinsic part of Article 21 that protects life and liberty”.

The ruling has implications for the government’s vast biometric ID scheme, covering access to benefits, bank accounts and payment of taxes.

Rights groups are concerned personal data could be misused. The authorities want registration to be compulsory.

The verdict overturns two previous rulings by the top court which said that privacy was not a fundamental right.

The nine-judge bench, comprising all the sitting judges in the Supreme Court was necessary because one of the earlier rulings made in 1954, was delivered by an eight-judge bench.

Analysis by Geeta Pandey, BBC News, Delhi

The Supreme Court verdict is a huge setback for the government which has insisted that privacy is not an inalienable fundamental right guaranteed under the constitution.

When the Aadhaar database was launched, the authorities said it would be a voluntary scheme which would help them weed out corruption while passing on welfare benefits to the most needy citizens.

But in the past couple of years, it has been made mandatory for filing tax returns, opening bank accounts, securing loans, buying and selling property or even making purchases of 50,000 rupees ($780; £610) and above.

The petitioners had said this would help the authorities create a comprehensive profile of a person’s spending habits and expressed apprehension that this data could be misused by a government which does not believe in people’s right to privacy.

During the hearing of the case, the government’s lawyers had told the court that citizens did not have absolute right over their bodies which meant that people could be forced to give their biometrics.

Alarmed citizens can now breathe a sigh of relief – as one legal expert said, Thursday’s order recognises the right of a citizen to be the master of his body and mind.

As of today India has better privacy protections from the courts than Australia.

The development of the common law regarding privacy in Australia has been slow and, in the main, excruciating.  In the 2001 decision of ABC v Lenah Game Meats Pty Ltd the High Court left open the possibility, only, of a possible common law right to privacy though more likely a development of an equitable claim of misuse of private information.  The Victorian Court of Appeal in Giller v Procopets recognised both an equitable claim for misuse of private information and that it is not necessary to prove psychological damage.  Distress was sufficient.  That was where the United Kingdom Law was 10 years plus ago.  It is a complicated cause of action which is not well suited to the issues thrown up by privacy breaches.

In 2015 the United Kingdom  moved away from an equitable claim of misuse of private information to a fully functioning tort in the Court of Appeal decision of Google Inc v Vidal – Hall & ors. That made sense and allowed the court to set out elements of the cause of action that are more fair to both plaintiffs and defendants. Unfortunately it is unlikely that superior courts in Australia will adopt this course.

At a state level in Victoria the consideration by the Victorian Civil and Administrative Tribunal (“VCAT”) of claims under the Information Privacy Act and later Privacy and Data Protection Act, for interference with a person’s privacy by government agencies or related service providers, has focused on and generally descended into a morass of administrative law arcana. The analysis adopted in these cases often defies easy understanding if one has a background in privacy law and understanding of the privacy legislation.  Cases seem to become swamped by minutiae of process, the preferred implement from the administrative tool box as invariably advocated by government agencies. This is not what the privacy legislation should be about.  It is little wonder that there are so few successful claims before VCAT. And that will likely to remain so if this privacy litigation remains in the maw of  administrative law.