Peter A Clarke

I attended lecture by Baron Walker of Gestingthorpe last year on THE ENGLISH LAW OF PRIVACY – AN EVOLVING HUMAN RIGHT .  It is extracted in the latest edition of Bar News (at page 78).

It is a particularly thoughtful speech. Of particular interest his view on the future of the action:

As the law of privacy develops its origin in the law of confidence will become a historical curiosity, and invasion of personal privacy will be recognised as a separate tort. Indeed I think we have probably reached that point already. Another necessary exercise Read the rest of this entry »

It has been three years since Eliot Spitzer resigned as governor of New York after being exposed, so to speak, hiring a prostitute. Ashley Dupre was the high-priced prostitute Spitzer was accused of patronizing.

Ashley was offered a million dollars to be in a new Girls Gone Wild magazine spread and promotional tour. But when the producers realized they already had archival footage of her from years earlier, they revoked that offer.

Dupre sued Joseph Francis, the head of Matra Films (the producer of Girls Gone Wild) for $10 million alleging that he improperly used Dupre’s image from the archival footage. She claimed that because she was only 17 at the time, she didn’t understand the nature of what she was doing. Francis responded by releasing a video that made its rounds on the web that showed the 17-year-old Dupree saying she was of age, and presenting a New Jersey driver’s license bearing the name of plaintiff Arpaio.

Plaintiff filed this lawsuit against Dupre and Girls Gone Wild alleging defamation and invasion of privacy. After none of the defendants responded to the lawsuit, the court entered default against the Girls Gone Wild defendants. Plaintiff never properly served the complaint on Dupre, so it did not enter default judgment against her.

The court awarded plaintiff $3 million in damages. It based this figure on her testimony and other evidence relating to plaintiff’s distress from being mistaken for Dupre, her concern that future employment would be jeopardized from employers doing a Google search on her and learning of the situation, the harm from plaintiff’s children (someday) being exposed to insulting material, and plaintiff’s symptoms consistent with post traumatic stress disorder.

Not a bad piece in the SMH today, Privacy, phone cameras and celebrity encounters, about the ubiquitous camera phone intruding on celebrities as they go about their business, including going to the toilet.

Unfortunately it recites the problems and highlights the problems of not having anything even vaguely like a right to privacy.  If anyone can enforce such a right it is well heeled celebrities keen on keeping a private space.  Then again in the US, where there is a right to privacy (in certain circumstances) paparazzi are even more invasive and common than here.

The Obama administration plans to ask Congress Wednesday to pass a “privacy bill of rights” to protect Americans from intrusive data gathering, amid growing concern about the tracking and targeting of Internet users.

Lawrence E. Strickling, an assistant secretary of commerce, is expected to call for the legislation at a hearing of the Senate Commerce Committee, said a person familiar with the matter.

This person said the administration will back a law that follows the outlines of a report issued by the Commerce Department in December. The administration wants any new rules to be enforceable and will look to expand the Federal Trade Commission’s authority, this person said.

Among other things, the December report suggested that companies should ask an individual’s permission to use personal data for a purpose other than for which it was collected. The administration also eventually could propose that consumers be given the right to access information about themselves and to have the information stored securely, the person said.

Professor Megan Richardson, Professor at the University of Melbourne and expert in privacy law, has prepared an interesting paper titled Too Many Academics? The Experience of Privacy Law Reform.  Her thesis is that the chattering amongst the various academics and the range of reports from the law reform bodies has diffused and confused the message for reform which in turn has reduced the likelihood of reform being enacted.  There is no doubt that the proposed elements of a proposed tort of breach of privacy differs between reports.  But is that what has privacy law reform stuck in the long grass.  I doubt it.

Part of the problem is as Prof Richardson describes:

It is already very clear that there will be opposition from parts of the media to any proposals for privacy law reform, with some quite persuasive arguments being mounted – for instance, that we have got along fine without legislative privacy protection in the past; that the common law provides or will provide sufficient protection where needed including through the equitable action for breach of confidence which has been recognised by courts as giving considerable protection against the misuse of private information; that Australian media are generally self-restrained; and that there are large segments of the population who don’t care much for privacy anyway.

to which she counters:

Each of these arguments can be countered: for instance, Read the rest of this entry »