Privacy Law Reform

By Legal Eagle

I was interested to skim-read the ALRC’s recently released report on Privacy Laws (reported in The Age here). No, I can’t honestly claim to have read the entire thing, but I did read the executive summary and selected sections.

I can conclude from this that my blog posts indicate I am a fairly good representative of the main concerns with regard to privacy. 73% of respondents to the public phone-in said that telemarketing was one of their major concerns with regard to privacy, something I had touched on myself in an early post about the “Do Not Call Register”. This, of course, is not something which is covered by the Privacy Act.

Furthermore, the ALRC was surprised to find that a number of people were irritated that privacy laws are used as an excuse for inaction, again something I’ve touched upon in a few posts:

Interestingly, a range of callers to the National Privacy Phone-In argued that sometimes there may be ‘too much privacy’—or rather that ‘privacy’ is all too often trotted out as an excuse for inaction or non-cooperation. Among privacy professionals, this has become known as the ‘BOTPA’ excuse, since people are told that their reasonable requests cannot be accommodated ‘because of the Privacy Act’. For example, the ALRC heard complaints from people who, ‘because of the Privacy Act’, were unable to:

  • access or correct their own personal information held on a government or corporate database;
  • assist an elderly relative or neighbour with their banking, or in dealing with a public utility or government agency—even where that person had written authorisation or held a valid power of attorney; and
  • urge their church congregation to pray for a named individual who was unwell and in hospital.

I’m not quite sure how you can legislate around this, short of removing the Privacy Act altogether.

An issue which has caused controversy (in the media particularly, of course) is the ALRC’s recommendation to introduce a statutory cause of action for a serious invasion of privacy. So, for example, an editorial in The Australian cited the case of pedophile Robert “Dolly” Dunn (who was able to be prosecuted as a result of actions by investigative journalists) and argued as follows:

If the ALRC’s proposal goes ahead, it would remake media law by skewing the balance in favour of public figures with something to hide. The media would be at risk if it published private correspondence disclosing flawed public administration. Public hypocrisy would go unchallenged. Worst of all, the plan provides no defence for material that is true and published in the public interest. Over time, this approach would almost certainly transform the nature of the media and public administration.

In a society where those in public life are widely viewed with suspicion, this scheme will only make matters worse. It should be ignored.

Similarly, in The Age, Peter Bartlett argued that a tort of invasion of privacy would be “overkill” and that there is already an adequate legal system for dealing with invasions of privacy by the media. He was particularly concerned that the “public interest” defence for media organisations was simply something to be “taken into account”. Specifically, the executive summary to the ALRC says:

The cause of action should apply only where the individual had a reasonable expectation of privacy; and the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities.

In addition, the court would be required to consider whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest in informing the public about matters of public concern and the interest in allowing freedom of expression).

By contrast with the opinions above, today in The Australian, Mark Day wondered if the ALRC’s report was that bad for the media after all. Most people consulted by the ALRC were concerned by invasions of privacy by other people (not the media) and, where media reporting was concerned, they were more concerned about the privacy of “ordinary people” rather than celebrities and public figures. I do wonder, however, whether ordinary people would have the financial resources and the opportunity to sue for breaches of privacy.

Sometimes, I do think the media goes too far in its pursuit of a story (camping outside people’s houses, using telephoto lenses to get photos of a celebrity wedding, chasing people down the street). Although it is true in the case of celebrities that they also often use media attention to their own advantage. But I feel sorry for the children of celebrities who have no choice in their parentage, but often get chased and photographed as well.

But then again, I think of a case like that of former judge Marcus Einfeld (mentioned on this blog previously), and wonder whether he would have been able to succeed in an action for a serious invasion of privacy. I tend to think that it is in the public interest for people to know about allegations such as this against public figures, and that the media ought to be able to report on cases such as this.

I wonder what the impact of statutory actions for breaches of privacy has been in the US and Canada? I also wonder whether the impact of such an action would be mitigated by the freedom of speech rights present in both countries. Of course, in Australia, most States and the Commonwealth do not have a statutory right to free speech (although Victoria is an exception).

As Mark Day says, it’s a long way from being law yet, and part of the purpose of such reports is to stimulate discussion. I’m not totally convinced by the need for a statutory tort of invasion of privacy, but nor am I totally against it, as long as there are the appropriate and important balances which protect the fundamental right to freedom of speech. However, I think I’d have to see more about how such a law would work and to study its operation in other jurisdictions closely before making a final decision.

Update: SL has pointed out this excellent post at Larvatus Prodeo, which takes the borderline case of Stephanie Rice’s lovelife and Facebook photos – seems a pretty egregious breach of privacy to me. I wonder whether existing laws would cover a complaint if Rice chose to bring one?

3 Comments

  1. Posted August 14, 2008 at 7:13 pm | Permalink

    A couple of people over at LP (quite legitimately, I thought) pointed out the media invasion of Stephanie Rice’s privacy when they ran photographs of her taken from facebook without her consent (and without any copyright clearance/fee). They argued that Rice was a ‘public figure’, but this was well before her current success in the Olympics.

    It wasn’t as though the pics were any more than merely ‘interesting to the public’ – it’s not as though an Olympic athlete is Tricky Dicky or some similarly influential political figure who needs to be made ‘accountable’. In fact, the only time I can think of media reporting about athletes’ private lives to be ‘in the public interest’ is if said athlete is popping performance enhancing pills. Otherwise, the media should just butt out, and some legislation may help with that.

  2. Posted August 16, 2008 at 12:23 am | Permalink

    As Author of books in the INSPECTOR-RIKATI® series I have certain concerns for the lack of privacy where as on the other hand hold the view too much is argued by government Departments about not being able to disclose because of privacy laws, albeit having itself all the access its desire, rather then to act realistic.
    .
    Lets take Google and its facility to allow people to look upon a persons property. As I discovered some business trying to sell memberships was showing my property having been sold in the last 12-months and details could be obtained by paying a $49.95 yearly membership. The fact that my property has not been sold by any real estate agent in the last 50 years or so seems not to have been relevant.
    .
    As such Google use my property through business contracts to promote some business venture and allow others to look into my backyard, etc. While I do not have children around, the same could be horrible to a parent if Google were to show their security or the lack thereof of their property and by this endanger the safety of any children at the property.
    .
    In my view this is an issue that is within the Commonwealth legislative powers to deal with within Subsection 51(v) postal, telegraphic, telephonic, and other like services where publication involves the usage of the Internet.
    .
    Then there is the other side of privacy laws application. When I found myself arrested regarding incest allegations I published a book about it. Within two weeks of providing the Chief Commissioner of Police with a copy of the book I was informed that it was the end of the matter. Now, I could hardly make an argument on basis of Privacy Laws if I went out and published a book about it if some media outlet had published details about my arrest. After all, they would do no more but publish what is otherwise available. Sure, not too many people would publish a book while a criminal investigations were ongoing but then again I held it appropriate to publish a book in the circumstances and maintain this.
    .
    After all, many a person wrongly accused nevertheless would fee shame merely because of being accused and cause undue harm to the wrongly accused.
    .
    Therefore, if some public figure happens to use the media for publicity then the media should be well entitled within reasons to publish details. However, when it comes to children of public figures that are underage then I view the media must accept that those children cannot have the mental capacity to consent to their involvement and should not be included merely because the public figure may somehow like it to be so. As such, leave the children alone.
    .
    We had this show (Jennifer Hawkins) where they were all parading in their underwear, whereas otherwise a photo being published of a public figure in his/her underwear may be deemed offensive. As such we colour what is or isn’t permissible.
    .
    Personally, I hold it undesirable to have a parade of men and women in their underwear. It is like at the beach where it doesn’t concern me if a woman is in a bikini or not but in a shopping mall it is out of place.
    .
    The abuse by Government departments was such that once a Government Department requested me formally permission as to be allowed to release certain details to myself! Perhaps this may underline how absurd the usage of Privacy laws is pursued.

  3. boredacademic
    Posted August 16, 2008 at 2:10 pm | Permalink

    All this gets very complicated as the same “celebrities” as are screaming about media intrusion into their families are only to happy to collect as many dollars as possible for exclusive photos of the wedding/birth/newborn child or whatever. They who live by the sword etc.
    This is however interesting but trivial compared to the potential for blocking legitimate journalism around politicians/business or the like. There is a myth that the common law protects freedom of speech but it is essentially just that a myth. In fact defamation and increasingly privacy are used by the judiciary to ensure the opposite. A classic current example in NZ is dodgy finance companies dodgy about to go bust – yes every financial journalist in the country knows it but dare not print it except in such vague terms that the usual mugs miss the point.
    I am one of those who tends to dislike a lot about the US but one thing they have right is freedom of speech (sometimes as they are pretty happy to gag it for employees)

3 Trackbacks

  1. By Privacy, Oz-style | cearta.ie on September 18, 2008 at 4:38 am

    […] privacy and where the publication was grossly offensive. The ALRC’s recommended formulation sets a high bar for plaintiffs, having due regard to the importance of freedom of expression and other rights and […]

  2. By skepticlawyer » Breach of confidence on December 12, 2008 at 8:03 am

    […] Neither Ashley JA nor Neave JA (with whom Maxwell P agreed on this issue) found it necessary to decide whether there was a tort of invasion of privacy, although Neave JA noted that the recent Law Reform Commission report had recommended that this tort should be developed in Australian law (post on the Report here). […]

  3. […] these kind of situations which make me think that we should have a tort of invasion of privacy (as suggested by the ALRC last year). As yet, there’s no coherent common law tort of invasion of privacy, and it […]

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