Peter A Clarke

The Office of the Victorian Information Commissioner (OVIC) has released its 2nd annual report.  The transition from separate privacy commissioner and Freedom of Information Commissioner offices to a combined office seems to be working.  It was inevitable after a similar approach has been taken at a Federal level and in Queensland and New South Wales.

The remit of OVIC is limited to public service agencies.  Enforcement action is limited with compliance notices being the most serious action that can be taken.  The Privacy and Data Protection Act makes the OVIC a gatekeeper in any action taken under the Act in VCAT.  That has been problematical.  As with the Federal Information Commissioner, much is made of the conciliations and finalising of complaints but little is published about the nature of the breaches and what remedial action is taken beyond a few case studies in the Annual Report.

The Information Commissioner, Seven Bluemmel, has proved to be a very active participant in the various privacy seminars throughout the year and has hosted seminars on a fairly regular basis.  Generally they are of Read the rest of this entry »

The ABC, Guardian and Nine/Fairfax press reports on a Queensland Police Officer, Senior Constable Neil Punchard, who has been convicted and been sentenced to 2 months jail, wholly suspended for 18 months, for leaking personal information of a woman to her ex husband in 2016.  Punchard accessed information relating to the victim on 9 occasions, hence the 9 charges of Read the rest of this entry »

The Australian Information Commissioner has recently released a Guide to Health Privacy.  At over 50 pages it is quite comprehensive.  It is less equivocal than previous guides published by the Information Commissioner.  That is not to say it does not descend into vague generality more than it should. The Commissioner’s guidelines have no force of law under the Privacy Act 1988.  That obvious fact has been stated by the Administrative Appeals Tribunal and the Federal Court.  As they are not regulations their use as a legal document is relatively limited.  They do however serve as a standard which the Information Commissioner expects agencies and organisations to follow in order to comply with the Privacy Act.

While some of the Commissioner’s previous and current guidelines are so vague, rubbery and equivocal as to be of little use that is not really the key regulatory issue.  The problem has always been the reluctance by the regulator in taking enforcement action.  That has been a 30 year problem. The powers available to the Commissioner have grown over the years.  That has not been matched by Read the rest of this entry »

A few days ago the Duchess of Sussex commenced proceedings against the Mail on Sunday alleging misuse of private information, a breach of copyright and contravention of the General Data Protection Directive. Now Prince Harry has commenced proceedings against the Sun and the Daily Mirror in relation to the hacking of his phone.

The pleadings are not public so it is not possible to comment on the technical basis for the claim however it would appear to be also a misuse of personal information case, with the hacking of his phone being used as a basis for stories.  He is using the law firm Cliffords who brought many of the claims arising out of the practice of News of the World in hacking the phones of members of the public.  Those cases settled.  It should be born in mind that, as the Media Standards Trust reported in its 52 page report,  most of the victims of phone hacking were not famous or Read the rest of this entry »

It is widely reported (in the Guardian, the Australian, the Nine Fairfax Press, the ABC etc) that Meghan, Duchess of Sussex has commenced proceedings in the High Court for misuse of private information.  She has, as is often the case involving the use of private communications which find their way into the media’s hands, also alleged a breach of copyright.  Additionally a breach of the General Data Protection Regulation is another cause of action.

The basis for the claim is a private letter from Meghan to her estranged father. Parts of that letter was extracted in an article in February 2019.

The United Kingdom courts have been industrious in developing the equitable cause of action of misuse of private information in the context of considering the operation of Articles 8 and 10 of the Human Rights Act.  The development has proceeded to Read the rest of this entry »