The Australian newspaper has consistently opposed the concept of a statutory right to privacy.  It has been very open about that.  That is fair enough. It is not an issue with only one legitimate viewpoint.  But it is better if any commentary on the issue is logical and factual.  On Friday Associate Professor Ainslie Van Onselen penned an opinion piece, The push for a tort is misguided and wrong.  It is found here (behind the pay wall).  It  is not the best contribution to the debate being in the main a polemic and in places wrong. It does however warrant a detailed response.

It provides (with my response where appropriate):

Recent reports indicate that there may be some development in a statutory tort of privacy being considered.

FEDERAL cabinet has had a sudden rush of blood to the head if reports this week are correct that it is to consider enacting a statutory tort for invasion of privacy.

Does the issue arise out of the February Finkelstein report into the media and regulation? No.

Given that it was September last year when a discussion paper on the statutory right of privacy was released and the responsible Minister, Brendan O’Connor discussed this on AM on Thursday 21 July 2011 it is hardly a new matter or Read the rest of this entry »

The Age ran an interesting piece on privacy and myki usage yesterday in Police handed data on myki users.

It provides:

Victoria’s public transport authority is increasingly handing over information about myki users’ movements to police, raising concerns that the smartcard is being used as a tracking device.

The Transport Ticketing Authority says police have made 113 requests about myki users since the smartcards were introduced in late 2009.

There have already been 71 requests for customer movements this year, more than three times the number of requests received last year.

Under the TTA’s privacy policy, police can make a written request for information about a customer’s movements without court oversight.

The policy states that personal information about myki customers will be handed to police when ”an authorised police officer certifies in writing that the disclosure is reasonably necessary for the enforcement of the criminal law”.

TTA chief executive Bernie Carolan said police were handed information only when justified. ”Strong privacy controls are maintained at the TTA and any release of data to, for example, the police is only granted when sufficient justification is given. Release of the data is always approved by TTA senior management,” he said.

The reusable Read the rest of this entry »

The High Court of New Zealand in C v Holland has considerably advanced the tort of privacy in New Zealand jurisprudence.

FACTS

The facts are uncontroverted and set out in [2].  The salient facts are:

• in June 2008 the defendant and the plaintiff’s boyfriend purchased a 5 bedroom house where they both resided;
• for  2 years, the plaintiff stayed at the property approximately 4 nights per week before moving in with Mr Z in July 2010;
• on a single occasion, in the period between 27 December 2010 and 9 January 2011, the defendant used a handheld digital camera to record 2 video clips of the plaintiff in the bathroom.  Each of the videos show the plaintiff both partially dressed and completely naked with clear view of her front (pubic area and breasts) and back. ;
• the defendant downloaded the 2 video clips onto his external hard drive;
• there was no evidence that the defendant published or showed the video clips to any person or entity; and
• the plaintiff did not consent to the defendant watching her in the shower or taking the video clips.

The video clips were discovered by the plaintiff’s boyfriend and the plaintiff made a complaint to the police.  The defendant was charged under the Crimes Act (in making an intimate visual recording),  was convicted and ordered to pay $1,000 in emotional harm reparation.

The plaintiff commenced proceedings against the Defendant.

DECISION

The Court identified Read the rest of this entry »

Yesterday the House of Representatives passed yesterday. As is the way of it the Attorney General has issued a media release, which provides:

The House of Representatives has today passed important reforms to the Privacy Act 1988 that will better protect people’s personal information, simplify credit reporting arrangements and strengthen enforcement powers of the Privacy Commissioner.

Attorney-General Nicola Roxon said that these reforms represent the most significant changes to the Act since Labor introduced the Privacy Act in 1988.

 “Australians right Read the rest of this entry »

The Age today has launched a series on privacy.  Very commendable and apposite given the recent controversy on photographs of Kate Middleton.  The article You’re being more closely watched, is a good opening.

It provides:

AUSTRALIANS’ privacy protections have been eroded more than in any other country since the 9/11 attacks in the United States, experts warn.

Over the past decade Australia and its Western allies in the ”war against terror”, including the US, Britain and France, have collected more information about their citizens’ movements in an effort to prevent further terrorist attacks.

Concerns about dwindling privacy protections come as two separate government inquiries into changes in Australia’s major privacy laws continue.

”We’ve gone further Read the rest of this entry »

The ABC has an interesting piece on the use of drones and the associated (lack of) privacy protections.  It is found here.

It provides:

Australian Privacy Commissioner Timothy Pilgrim has warned it may be impossible to use Australia’s privacy laws to prevent someone from being filmed secretly in their own home by a drone.

He says he is confident the Federal Privacy Act would control the actions of government agencies or businesses operating a drone for surveillance.

However, Commissioner Pilgrim has told Radio National’s Background Briefing program the act does not apply to individuals.

“Perhaps one of your neighbours buys one of these things and starts flying it around your local street,” he said.

“What I am not sure about is whether we have sufficient laws to cover the activities of those individuals.

“For example the Federal Privacy Act doesn’t cover the activities of individuals and so in the context of the use of drones, the Act I administer wouldn’t come into play.”

 Commissioner Pilgrim has called on governments Read the rest of this entry »

A French magazine, Closer, has brought the issue of privacy to prominence with its purchase and publication of  photographs of a topless Kate Middleton by a swimming pool while on a private holiday in Provence. The story is found here.  The Guardian reports that the Royal couple are to sue publication for an invasion of privacy.  As does the ABC and the Age.  The action will be under French civil law which has a far stronger privacy protections to those in the UK and other common law countries.

In the United Kingdom the tort of misuse of private information has developed rapidly to protect private information.  It’s genesis in the modern era is the House of Lords decisions of  Campbell v MGN Ltd [2004] 2 AC 247 and Douglas v Hello! Ltd [2008] 1 AC 1. The basis of those proceedings was a claim for breach of confidence (described as a misuse of private information).  Since Campbell “privacy” actions have developed to involve a more systematic application of the Articles 8 and 10 of the Human Rights Act 1998 as well as consideration of equitable breach of confidence principles.  The current state of the law is best summarised in McKennitt v Ash [2008] QB 73 where  Buxton LJ stated at [8]:

i) There is no English domestic law tort of invasion of privacy. Previous suggestions in a contrary sense were dismissed by Lord Hoffmann, whose speech was agreed with in full by Lord Hope of Craighead and Lord Hutton, in Wainwright v Home Office [2004] 2 AC 406 [28]-[35].

ii) Accordingly, in developing a right to protect private information Read the rest of this entry »

Yesterday the Corporations Legislation Amendment (Derivative Transactions) Bill 2012 was introduced into the House of Representatives.

It is a lengthy and significant bill providing:

Part 1—Amendment of the Corporations Act 2001

Corporations Act 2001

1  Section 9

Insert:

Australian derivative Read the rest of this entry »