It is hardly controversial to say the Australian press are deeply suspicious on a statutory or common law right to privacy.  Journalists regard the defamation laws, even as amended, as unduly onerous.  A privacy right overlay is generally regarded as an unnecessary intrusion into a press’ ability to report and investigate.

The Australian has taken a line against any statutory right to privacy.  The Fairfax press has not been so determined.  It is interesting then that Richard Ackland in the SMH last Friday argued against a statutory right to privacy while today in the Australian Norman Lucas argues for the development of a right to privacy.  Neither is a particularly penetrating piece.  That is perhaps understandable because it is hard to give justice to a complicated issue in 600 – 1000 words.

Ackland’s piece is an interesting summary of the phone hacking scandal in the UK and the litigation that has ensued.  He takes a swing at Justice Eady for reasons which are not made clear.  Probably because Eady pushed the right to privacy action along with the Mosley decision.  He does refer to Giller v Procopets which he described thus:

In December 2008 the Victorian Court of Appeal said in a case called Giller v Procopets that the plaintiff was entitled to compensation for breach of confidence as a result of her former partner showing a video of their sexual liaisons to her friends, family and employer.

Among other things, the court granted damages for mental distress, which was a big legal leap.

While the grant of damages for mental distress was significant it is hardly the big leap he describes.  To set the bar so high as to require psychological damage would be to have any claim for privacy still born.

He concludes Read the rest of this entry »

Last night the Civil Dispute Resolution Bill passed the Senate and therefore passed both houses of the Parliament.  The Bill’s homepage is found here.

The Attorney General issued a press release which provides:

Attorney-General Robert McClelland today welcomed the passage of the Civil Dispute Resolution Bill 2010 through Parliament, which will encourages people to take genuine steps to resolve disputes before going to court.

“While most parties already attempt to resolve their disputes before litigating, it’s clear there are still some very costly and time consuming cases where this basic step has not occurred,” Mr McClelland said.

“The Civil Dispute Resolution Bill will Read the rest of this entry »

In Europe the regulators are taking a much stronger line on the potential or actual breaches of privacy protections by the large operators in cyberspace.  Notwithstanding the French regulator, the French National Commission for Information Technologies and Civil Liberties (CNiL) telling Google last May that it had to stop collecting details of users’ Wi-Fi networks and content that passed over them  Google has failed to meet those demands.

The camera-carrying cars used to take the pictures that make up Google’s Street View mapping service collected information on the location of Wi-Fi network and some information passing over networks, including usernames, passwords and entire emails.

Though the collection of that information has stopped, the CNiL has said that Google’s collection of information from smartphone users involves the same kind of privacy violations.

“[Google] has not refrained from using the data identifying access points of Wi-Fi individuals without their knowledge,” said a CNiL statement in French, in a machine translation. “This collection now … operates directly through the mobile users connecting to geolocation service Latitutde … without their knowledge.”

“The CNiL considers that this lack of information [to users] is an unfair collection under the law, which was already at work with ‘Google cars’,” it said.

The CNiL said that Google had refused requests from it to report on the issue to it despite two requests to do so.

“As we have said before, we are profoundly sorry for having mistakenly collected payload data from unencrypted WiFi networks,” said Google global privacy counsel Peter Fleischer. “As soon as we realised what had happened, we stopped collecting all WiFi data from our Street View cars and immediately informed the authorities. Deleting the data has always been our priority.”

Yesterday John McMillan, the Australian Information Commissioner, gave a wide ranging speech to the AGS National Information Law Conference.  It is a very interesting and useful read.

Some of the key issues on the privacy front was his comments about the number of complaints:

It is a vibrant area of activity, Read the rest of this entry »

In Pihiga Pty Ltd v Roche the respondents applied for injunctive relief restraining the applicants from introducing as evidence documents brought into existence for a previously held mediation and any oral exchanges during the mediation (see [5] for the specific orders sought).  In his very comprehensive decision Lander J considered the scope of “without prejudice ” communications and the operation of section 131(1) of the Evidence Act.

FACTS

The relief sought by the applicants in the proceeding is to set aside a settlement deed executed by the parties on 25 October 2009. The applicants allege that the respondents breached  section 1325 of the Corporations Act, section 87 of the Trade Practices Act and sections 72 and 85 of the Fair Trading Act in that they misled the applicants during a two day mediation.  The  alleged misrepresentation resulted in the applicants executing a settlement deed. Prior to the mediation  position papers were prepared and presented.  The nature of the misrepresentations included a claim that valuations contained in documents were false.

DECISION

Without prejudice communications

The bases of the respondents’ application for injunctive relief were:

• the common law without prejudice privilege; and
• the mediation agreement  which provided that communications would be conducted on a without prejudice basis [75]

Lander J undertook a very detailed analysis of the operation of the “without prejudice” rule ([80] – [111]) noting:

• the protection afforded Read the rest of this entry »

The Federal Parliament has passed the Evidence Amendment (Journalist’s Privilege) Bill 2010.  It ostensibly is designed to protect journalists’ sources.

The Attorney General’s press release provides:

The new laws will strengthen provisions Read the rest of this entry »

In the recent decision of Messade v Baires Contracting Pty Ltd (Rulings Nos 2,3 & 4) [2011] VSC 75 Justice Forrest made rulings arising out of an error ofcounselcounsel and the highly unusual circumstance of jurors finding themselves in the vicinity of a party outside the court during a trial .

FACTS

The first issue was the failure of counsel for the defendant to put findings/conclusions contained in the defendant’s psychiatric report to the psychiatrist engaged by the plaintiff  so as to compyl with the rule in Brown v Dunn.  Upon  realising her error counsel made application to recall the defendant’s expert. This application was resisted by the plaintiff.  The plaintiffs expert witness was most reluctant to attend again.

The second issue was whether it was appropriate in all the circumstances to discharge a jury because of inadvertent contact between three jurors and the plaintiff during the course of a trial.  There was no suggestion that the plaintiff sought out the jurors or had a conversation with them. The contact, on two occasions,was confined to the three juror finding themselves in the vicinity of the plaintiff while all were waiting for a train at Flagstaff Station. The jurors volunteered this information to the Judge’s associate out of an abundance of caution. An enquiry was made by his honour in the presence of counsel for both parties.

RULINGS

Browne v Dunn

His Honour, at [6], set out the ruling in Brown v Dunn which is always worth recounting:

If you intend to impeach a witness Read the rest of this entry »

That China has little time for privacy on the net is hardly a revelation.  Its contempt for the integrity of search engine is borne out of its obsession to control the flow of content on the net.  Then it is no great surprise to read Google accuses China of interfering with Gmail email system in the Guardian online.