Peter A Clarke

The Age today reports that Jan Beer will be taking Melbourne Water to VCAT claiming a breach of her privacy, presumably under the Victorian Information Privacy Act. The complaint appears to focus on data being collected via photographs and recording of Mr Beer’s movements.  If that is correct it is a very circumspect way of enforcing privacy rights.

Taking an action to VCAT for what is, or should be, a tortious or equitable claim is a poor alternative.  Unfortunately until the legislature decides to accept the VLRC report on privacy and creates a statutory right of action this is the only alternative. At the moment it would be very difficult to rely on equitable principles to claim a breach of privacy/breach of confidence.

The problem with bringing an action under the Act and through VCAT is the limited remedies available.

The New York Times ran a story about Tyler Clementi committing suicide three days after his roomates videotaped and streamed online him engaged in a consensual sexual act with a male.  Mr Clementi’s roommate, Dharun Ravi, 18, and another classmate, Molly Wei, 18, had each been charged with two counts of invasion of privacy for using ”the camera to view and transmit a live image” of Mr Clementi.

The most severe charges carry a maximum sentence of five years in jail.   Mr Ravi was charged with two additional counts of invasion of privacy for attempting a similar live feed on the internet on September 21, the day before the suicide. A spokesman for the prosecutor’s office said the investigation was continuing.

In the follow up story there is a significant debate at Rutgers on what if any other protections can be put in place to protect student privacy.

In Victoria the actions are probably a breach of the Surveillance Devices Act 1999 which provides at section 7(1):

” a person must not knowingly … use … an optical surveillance device to record visually or observe a private activity

to which the person is not a party, without the express or implied consent of each party to the activity.”

All of that is predicated on the prosecuting authority pressing charges.  What if someone wanted to bring a civil action.  The facts probably fit within the breach of confidence action under Giller v Procopets. It would be better if the legislature, State or Federal, adopted the ALRC, NSWLRC or the VLRC reports on Privacy and legislate a statutory tort of privacy.