The issue of measuring damages and establishing the threshold loss  in the United States jurisprudence has retarded the development of the tort of privacy.  It is a common basis for applications to strike out claims.  In Australia, with breach of confidence actions, the threshold is emotional distress rather than psychiatric injury since the Victorian Court of Appeal decision of Giller v Procopets.  The awards in that and subsequent actions have been disappointing parsimonious relative to the intrusion but with time, if the United Kingdom jurisprudence is any guide, the courts should develop an appreciation of the loss associated with these types of breaches.

In Frank v Gaos the nub of the claim related to Google’s disclosure of search histories to third parties without consent, a practice that could violate privacy laws.  The court described Read the rest of this entry »

The US Supreme Court in Byrd v United States, by a unanimous decision, restated that a strong belief in the privacy rights under the Fourteenth Amendment.  It is an important decision on reasonable expectations of privacy but does not change the approach taken by the court on such issues.

FACTS

Read the rest of this entry »

The US Supreme Court has in recent times considered the use of new technologies and their privacy intrusive consequences and whether they constitute a constitutional breach.  In 2012 the Court in United States v Jones held that installing a GPS tracking device on a vehicle and using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment. In Riley v California the Court unanimously held that the warrantless search and seizure of digital contents of a mobile phone during an arrest was unconstitutional.

On 5 June 2017 the Supreme Court  agreed to hear arguments in the October Term in Carpenter v United States as to whether police should obtain warrants to obtain location data of suspects.

The question presented to the Court is Read the rest of this entry »

In US the courts are quite reluctant to award general damages Read the rest of this entry »

Yesterday the US Supreme Court in Riley v California handed down a very important decision on privacy, regarding the right of a police officer to search digital information on a cell phone who had been arrested.   Earlier this month the Canadian Supreme Court handed down a privacy related decision in Spencer v R & ors regarding accessing internet search history from an ISP without a warrant.  Both are significant and will have a along lasting impact on their own jurisdictions and beyond.  Both should be required reading by those who want a more effective privacy regime in Australia. The underpinnings of each decision, the Bill of Rights in the US and the Canadian Charter and its privacy legislation, differ to those in existence in Australia but the principles and analysis are both apposite.

While a further analysis is required the key findings in Riley, a unanimous decision, are that:

 (a) a warrantless search is reasonable only if it falls within a specific exception to the Fourth Amendment ’s warrant requirement.

(b) the Court declined to extend the exception to searches of data stored on cell phones.  The Court generally determines whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” The search of digital information on a cell phone does not further the government interests  and implicates substantially greater individual privacy interests Read the rest of this entry »