Peter A Clarke

In the Australian today there is an interesting piece on a finding of a privacy breach by the Professional Services Review.  It provides:

PATIENT privacy has been compromised in the federal government’s bid to control health spending, with a key agency found to have illegally merged data from Medicare and the Pharmaceutical Benefits Scheme.

In a case likely to fuel privacy concerns over planned electronic health records, the embattled Professional Services Review has been ordered to add computer system and practice changes to a growing list of reforms.

The PSR investigates Read the rest of this entry »

Today the Attorney General has released a White paper on Cyber crime and space.  Titled, not surprisingly and a little kitchly, Cyber white it is a huge document (found here).  Submissions are open until 15 November 2011.

The joint press release states:

The Gillard Government today invited members of the public and businesses to have their say on the development of Australia’s first ever Cyber White Paper.

The Government released a public discussion paper as part of the development of the Cyber White Paper, which invites submissions on a range of issues regarding the importance of cybersp Read the rest of this entry »

It is vital that there be a sensible debate on a right to privacy, for against or in between.  There is very mixed coverage of the privacy issue today.

Peter Van Onsolen’s Political parties face hard questions on how they use our personal data in the Australian is good and highlights a clear anomaly in the privacy laws. It is a good article relating to the exemptions political parties have from the Privacy Act.  It’s relationship with a statutory duty of privacy is at best tenuous.  But it is a legitimate issue.

The report Reform push ‘not based on complaints about media’ makes clear that any statutory right to privacy is not media focused. It says in part:

A SENIOR officer at the Australian Law Reform Commission has insisted its call for a legal right to privacy was not based on any “groundswell” of complaints about the media

So what?  Sometimes law reform arises out of an incident which highlights a discrepancy or gap in the law, sometimes it is a groundswell and other times there is a general review and an amendment is proposed.

The NSW acting Privacy Commissioner John McAteer has also warned the focus of the debate about privacy should not be solely on the media in the wake of the News of the World phone hacking scandal in Britain.

Excellent point and one that is obvious on its face.

While Mr O’Connor and Julia Gillard discussed the issue within the context of the events in Britain, ALRC senior legal officer Bruce Alston, who worked on the report, told The Australian yesterday the recommendation to establish a legal right to privacy was not just about the media.

“In recommending a statutory cause of action for an invasion of privacy, we were not responding to any groundswell of complaints against the media,” he said.

“And, in fact, we took pains to emphasis the media were not a particular target for the recommended course of action for a serious invasion of privacy.”

Mr McAteer cautioned against any discussion on privacy being solely focused on the media and said the “true importance of the debate” was that it had highlighted gaps in the law.

“The current debate has focused largely on allegations of breaches of individuals’ privacy by the media, and ensuing comments that such laws might ‘gag’ or limit the freedom of the press,” he said.

“However, the Law Reform Commission’s recommendations were not limited to actions against the media.”

Mr McAteer said that invasion of privacy tended to occur in instances such as neighbours spying on neighbours or people setting up surveillance cameras on buildings that overlooked public places.

He said privacy breaches often related to matters between citizens and government or customers and businesses.

“Most of the privacy-related complaints arise from an existing relationship between a complainant and the body they are dealing with, whether it be government or private sector,” Mr McAteer said.

A very sensible injection Read the rest of this entry »

The weekend coverage of the Privacy debate followed a predicted predictable line, with a few rays of hope and sunshine.  As Insiders host Barry Cassidy said yesterday, you will not find too many journalists supporting a tort of privacy.  And how!

In the Australian Chris Merritt slipped into his traditional bellicose stride when dealing with the whiff of any new rights in the offing. He warmed up with Undoing free speech a sop to placate Bob on Friday.  It is more assertion than argument.

THE federal government seems intent on allowing the Greens to destroy Labor’s credentials on free speech.

After permitting the Greens to vandalise the federal shield law for journalists’ sources, the government has decided to embrace the thinking of the Greens on privacy law.

A wild simplification. The interest in greater protections of privacy goes well beyond a political party.  And the interest in this area has been longstanding.

This will have the effect of reversing privacy law reforms that were enacted by Labor state governments just six years ago.

Which ones?

It will also leave federal Labor even further removed from the grand plans for transparency and accountability that were contained in the party’s 2007 election platform.

Pure and utter assertion and just plain wrong.  Having a statutory tort of privacy is Read the rest of this entry »

In today’s Age, Australian and on AM Justice Minister Brendan O’Connor foreshadowed having a serious discussion about introducing a law of privacy.  It is a very tentative first step, the release of a discussion paper later this year.  The Age provides:

The Gillard government will today move towards new laws that would allow Australians to sue for damages in the event of a serious invasion of their privacy.

Ahead of today’s announcement, federal Privacy Minister Brendan O’Connor told The Age the government was ”very serious about having this discussion” following the UK scandal. He said he was confident any change would preserve reasonable media freedom. ”There are two ideals we uphold as a government – freedom of speech, and people’s right to have a private life,” Mr O’Connor said.

The Minister for Privacy Awareness, Brendan O’Connor, put out a press release stating:

It’s now Privacy Awareness Week. The year’s theme is Privacy: It’s all about you.

The week aims to increase awareness amongst all Australians of the importance of being aware of possible privacy infringements and what steps you can take to protect your privacy.

“Privacy is becoming a greater concern for the average Australian. That’s largely due to the surge in online activity and the greater possibility for collection of our personal information.”

“While it may Read the rest of this entry »

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 »

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 »

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.