The Privacy Commissioner and ACMA will be investigating a botched mail out by Telstra.  The release provides:

The Australian Communications and Media Authority and the Office of the Australian Privacy Commissioner are looking into the circumstances of a botched mail out by Telstra to its customers.

The mail out resulted in around 220,000 letters with incorrect addresses being sent to Telstra customers. The letters contained the name, phone number and telephone plan of other customers.

‘The ACMA’s main priority Read the rest of this entry »

The Australian reports that the US Electronic Privacy Information Centre has filed suit to stay the roll out of body scanners.  It also reports on the privacy issues in the Australian context.

Interestingly a pilot in the USA has been stood down because he refused to go through a full body scanner. His reasoning sums up the problem:

However, Michael Roberts said he did not want to be harassed or “molested” without a cause.
Mr Roberts also said he has safety concerns and doesn’t actually believe TSA’s ‘make-work’ programs makes flying safer for travellers.Australia plans to rollout of the scanners next year as part of the Federal Government’s crackdown on airport security.

The BBC reports that the Information Commissioners Office will be investigating what personal information Google has gathered from private wi fi networks. The Spanish Data Protection Agency has filed suit against Google.  The Age today reports that the Privacy Commissioner has claimed that Google had breached the Privacy Act in collecting information from wireless networks while undertaking the street view project.

It is hardly news that the law of privacy is a mish mash of poorly drafted legislation, timid regulation by our various commissioners and an all too slowly developing common law.  In the US, where there are privacy statutes, a well developed tort of privacy and constitutional recognition Electronic Privacy Information Centre has given the Obama Administration a very ordinary report card.

Here is the report card: Read the rest of this entry »

In yesterday’s SMH TICA a tenant database company is taking a tenant check to a new, disturbing level of intrusion.  The service will permit landlords to be notified of when a current tenant is looking for alternate accomodation in New South Wales.

The World Today ran a story on the subject.  The transcript is sobering reading.  If this is permissible it is a walking and talking argument for tightening privacy laws. Read the rest of this entry »

Today’s report in the Daily Telegraph and Age highlights a growing trend of serving individuals on line.  A police officer served an intervention order by substituted service upon allegd cyber stalker by placing documents on his Facebook page and a video of the order.

The process as described is fascinating. It provides:

In an Australian first, Senior Constable Stuart Walton made a video of himself reading an interim intervention order to the accused man, as if he was directly speaking to him and serving him the order.

The officer was handling a complaint made by a woman about her former boyfriend, whom she claimed had bullied her using Facebook.

The order, explanation and telephone contact numbers were transcribed and sent in private messages to the man’s Facebook account.

The woman had told police on August 23 that she was being threatened, bullied and harassed via the site.

There had been a history of domestic violence in their relationship and an intervention order had lapsed when the woman was contacted by her former boyfriend via Facebook.

After sending the papers and video, police could not confirm whether or not the message had been read by the man, but they were able to ascertain the video had not been opened.

The order also required him to take down his Facebook profile.

The method of serving the order was upheld indefinitely by a magistrate despite the man not attending court.

Sen-Constable Walton then served the final order, again via Facebook, and later learned that although the video wasn’t opened, the messages had been read when he caught up with the accused man a week later.

There is not much precedent in this exercise. It is highly unlikely that the recipient will appeal.  It doesn’t involve property rights or a significant impact on a person’s liberty. That said the move is on.  It is a matter of time before court process in civil matters will be served on line. The real issue issue is whether this will remain a means of substituted service or a matter of course.

On Wednesday Facebook introduced 3 features which should improve privacy controls for those who seek it.  Acording to the report:

The biggest change for users will be the new groups feature, which allows people to identify small circles of friends on the site, and share specific information and communicate with just those people.

Users can decide whether the groups are public or private, and choose which information they want to share with each group. Previously, Facebook allowed users to create lists of friends, but Mr Zuckerberg said only about 5 per cent of users ever took advantage of the feature.

The problem is, Facebook has form.  It won’t be taken as repenting its evil ways just yet at least as far as Steve Hutchison of the Age is concerned.

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.

In two recent decisions the Victorian Supreme Court considered the issue of what is meant by genuine dispute for the purposes of setting aside a statutory demand under section 459G(1) of the Corporations Act with the Court in  Freestyle Energy Limited v Renewtek Pty Ltd finding there was a genuine dispute while in  Re LPD Corporation Pty Ltd the Court refused to set aside a statutory demand.  In the third decision, Renegade Rigging Pty Ltd v Hanlon Nominees Py Ltd, the Court considered the service of statutory demands.  These decisions which will be of use to practitioners who practice insolvency law.

LPD Corporation

In determining whether there was a genuine dispute Davies J set out the relevant principles:

1. any dispute must be a genuine dispute [3] and one which is bona fide and Read the rest of this entry »