Peter A Clarke

Out – Law.com reports a speech by Lord Justice Jackson where he said the costs implications of incorrect electronic disclosure or inappropriate disclosure orders were potentially “huge”.  He was an author of a report on the cost of litigation.

Privacy protection is not about muzzling the media.  The right to privacy goes beyond any media intrusion.  But the Leveson inquiry has given the starkest and most recent example of how wanton and unbridled invasions of privacy warrant some form of protection with teeth.

In ‘Privacy is for paedos’: The world according to Paul Paul McMullan’s interesting take on the world of journalism and others privacy is freshingly, if somewhat chillingly, clear.

The article provides:

Former News of the World editor stuns UK media inquiry with a breathtakingly frank account of life at a British tabloid.

“Privacy is for paedos,” former News of the World man and tabloid veteran Paul McMullan declared in his evidence at the British Leveson inquiry into the British media.

He had only just observed that “in 21 years of invading people’s privacy I’ve never found anybody doing any good”.

The statements together amounted to a credo for the brutal tabloid newspaper world of which McMullan, former deputy features editor of the now-defunct Sunday tabloid, became the chief spokesman in the otherwise stifled confines of courtroom 73 at the High Court in London.

The public interest added up to no more than the sheer number of copies the News of the World could sell, he said.

“Circulation defines the public interest,” he said, which meant that everything was legitimate as long as the public bought the paper.

“You have to appeal to what the reader wants. I was simply Read the rest of this entry »

Brendan O’Conner has delivered a speech on Privacy at theiappANZ ANNUAL CONFERENCE 2011

The speech reads:

I’d like to begin by acknowledging the traditional owners of the land on which we meet and to pay my respects to their elders, both past and present.

I am very pleased to be here this morning to open the 2011 Annual Conference for the Australia and New Zealand International Association of Privacy Professionals.

I spoke at this conference last year, and once again, I can see you have an impressive line up of speakers over the course of the day.

This conference is establishing a reputation for bringing practitioners together to discuss the latest privacy trends and issues.

With that in mind, today I’d like to talk briefly about where we’ve come from, and where we are going.

Information policy landscape

It has been just over 30 years since the OECD Privacy Principles were first developed. Over 20 since the Hawke/Keating Government introduced the Australian Privacy Act, and 10 years since the Privacy Act was extended to cover private sector organisations.

Those of you who have been working in privacy and information law for a great part of those three decades have transformed the way we think about privacy and the protection of personal information.

Technological advances, increased awareness of citizens, the tireless work of non-government organisations dedicated to improvements in privacy protection have changed how we collect, store and use and disclose personal information.

The challenge for government Read the rest of this entry »

In Asociación Nacional de Establecimientos Financieros de Crédito (ASNEF) (C?468/10) & Federación de Comercio Electrónico y Marketing Directo (FECEMD) (C?469/10) v Administración del Estado the ECJ ruled that EU member states cannot generally prohibit organisations’ legitimate and necessary but unauthorised processing of personal data where the information is not stored in specified public sources.  National rules that broadly exclude data processing in non-specified public sources in those circumstances are precluded under EU data protection laws.

The Court was ruling in a case involving a dispute Read the rest of this entry »

The Australian has gone all out in setting out its views on a possible statutory right of privacy,Unleashing the lawyers is not the answer to the question of privacy, Federal Privacy Commissioner backs conciliation and Lawsuits second-best option for privacy protection.

In Unleashing the lawyers is not the answer to the question of privacy the story provides:

PRIVACY is a fickle thing. Sometimes it’s obvious, sometimes it’s not, sometimes it’s questionable.

True as far as that statement goes.  But much in the law falls into that vague catch all nostrum.

There has been no outcry that the privacy of three Pakistani cricketers was invaded when the now defunct News of the World caught them, by secret cameras, in their hotel room stashing bribes.

True but what about the balancing of the freedom of expression rights.  More to the point the Pakistani cricketers were exposed and there was no privacy litigation which prevented the story from running.

We accept that investigative journalism can go so far to seek out corruption.

And the right to privacy in America and the law in the UK has permitted investigative journalism. It is not an “either or” question.

But as the parents of murder victim Milly Dowler give evidence to the parliamentary inquiry in London about the impact of the phone hacking for the News of the World, we in Australia are asking ourselves what is the best way for us to outlaw conduct which falls on the wrong side of the line.

The easy response is to say we should legislate to create a statutory action for breach of privacy, and Home Affairs Minister Brendan O’Connor has called for submissions in response to an issues paper on proposals for such an action.

It is not the easy way it is the appropriate way.

But let’s just think a bit more about that. Is such an action the best way or even necessary to remedy the mischief? Perhaps not. Tragically, Milly had probably been murdered by the time her phone was hacked. All current proposals for a statutory action recommend that it benefit only living persons, and that the action will not survive for the benefit of her estate.

But what about Sienna Miller, Elle MacPherson, Hugh Grant and anyone else (not famous) whose phones have been hacked by the media.  So Milly’s estate should not have a cause of action.  And fair enough.  There is no good public policy reasons why the deceased should have privacy protections.  But that is not an issue of controversy. Read the rest of this entry »

Lifehacker reports that  iiNet, Internode, Primus, Optus and Telstra have released a proposal for dealing with online piracy. It’s an education-based scheme that doesn’t force ISPs to cut off customers accused of piracy by movie studios.

The Communications Alliance has released a discussion paper here.

In a related development the ECJ ruled  in Scarlet Extended SA that Courts cannot force ISPs into broad filtering and monitoring for copyright-infringing traffic.

The ECJ ruling means national courts cannot force ISPs to use filter systems, installed at ISPs’ own expense and used for an unlimited period, to monitor all its customers’ electronic communications to prevent illegal file-sharing. It said that such an order would breach ISPs’ rights to freely conduct business and individuals’ rights to privacy, free speech and the protection of their personal data.

The ECJ assessed EU laws on copyright, intellectual property rights enforcement, data protection, privacy and electronic communications and the free movement of information when making its ruling. It also considered rights contained in the EU’s Charter of Fundamental Rights.

Out-law.com reports 1000 breaches of personal data in the last 3 years.

It provides:

The publication of submissions into the Commonwealth Statutory cause of action are being placed on line here.

The supporters overwhelm the naysayers though the level of resistance is quite small. There are some quite extraordinary submissions, namely that of Jessie Porteus.  An impressive tome found here.

The privacy implications of facial recognition techonology have been highlighted from the outset.  That doesn’t mean the law has developed a satisfactory framework to deal with the obvious potential for abuse.  Far from it.  On privacy the legislature has been quite timid.

On Tuesday the Age ran an interesting piece identifying the pros and cons regarding facial recognition technology.

It provides:

??FOR

• identify criminals using grainy CCTV or mobile footage
• automatically pick people on terror watchlist
• proactive crime fighting and monitoring
• quicker and better Customs checks at airports
• check multiple identities simultaneously
• richer online services (Facebook, Google)

AGAINST

• false positives
• risk for total surveillance
• potential for abuse
• people don’t necessarily know they’re being watched
• the evidence on its own won’t hold up in court
• can’t change face if “hacked”

Is it the most significant policing technology since DNA testing or the next privacy disaster waiting to happen, setting us on the path towards, as The Guardian’s editor puts it, “total surveillance”?

The battle lines have been drawn Read the rest of this entry »

Yesterday the Minister for Home Affairs introduced the Access to Justice (Federal Jurisdiction) Amendment Bill 2011.

For those in the civil litigation field it will be a significant piece of legislation on the issue of discovery, suppression orders and vexatious litigants.

The Second Reading speech provides:

This government has a proud history of reforms that facilitate access to justice. This bill marks the latest tranche of those reforms.

Discovery

The bill will implement legislative reforms regarding discovery during Federal Court litigation that were recommended in the Australian Law Reform Commission’s Managing discovery report, tabled in parliament in May 2011.

The Attorney-General initiated that inquiry in May 2010, following the 2009 report by the Attorney-General’s Department’s Access to Justice Taskforce entitled A strategic framework for access to justice in the federal civil justice system. The task force identified the high and sometimes disproportionate costs of discovery as a specific barrier to justice.

The Australian Law Reform Commission made practical recommendations aimed at the Federal Court taking greater control over the discovery process, many of which have already been implemented by the court in its new rules, or are under active consideration by the court. I acknowledge the effort the Federal Court continues to put into refining its case management processes, including those relating to discovery.

The government also welcomes Read the rest of this entry »