New laws needed to prosecute invasion of privacy cases
by Ernie Davitt, National Affairs Editor, ASM
In the age of smart CCTV cameras and high-tech security snooping, a leading legal watchdog has called for a new uniform cause of action for serious invasion of privacy as part of national law reform.
An important exception is recommended in areas where breaches of privacy are in the public interest, such as national security, freedom of speech and the public’s right to know.
The NSW Law Reform Commission said in a recent report that advances in technology had made it easier than ever for someone to invade another’s privacy.
The NSW Commission’s recommendation, in its report Invasion of Privacy (Report 120), follows a recommendation from the Australian Law Reform Commission last year, which said federal law should provide for a private cause of action where an individual had suffered a serious invasion of privacy, in circumstances in which the person had a reasonable expectation of privacy.
“Courts should be empowered to tailor appropriate remedies, such as an order for damages, an injunction or an apology. 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 interests,” it said.
In its recent report the NSW body clarified when an individual should be able to claim compensation and asked whether the law would protect a person’s privacy against unwanted intrusion from a neighbour’s security cameras.
It asked: “What action can you take if your ex-partner posts your private videos on YouTube? How can the media’s role in promoting free speech be balanced against the need to protect individual privacy?
“Never before has it been so easy for one person to invade the privacy of another. Advances in technology allow moments once considered private to be captured and broadcast to the world. Yet, despite increasing public concern about this gradual erosion of privacy, the law remains largely unclear.”
The Chairman of the NSW Law Reform Commission, James Wood QC, said: “The action is only applicable where an individual has a reasonable expectation of privacy that is not overridden by public interests such as freedom of speech. We advocate a commonsense approach, whereby privacy interests are weighted against other important concerns such as the public’s ‘right to know’ and the protection of national security.”
The report recommends that the new cause of action only be introduced as part of national law reform so that privacy law would be uniform throughout Australia.
The Australian Law Reform Commission’s landmark 2,700-page report For Your Information: Australian Privacy Law and Practice (ALRC 108), issued last year, made 295 recommendations for changes to privacy laws and practices.
ALRC President, Professor David Weisbrot, said: “Although the Federal Privacy Act is only 20 years old, it was introduced before the advent of supercomputers, the internet, mobile phones, digital cameras, e-commerce, sophisticated surveillance devices and social networking websites – all of which challenge our capacity to safeguard our sensitive personal information.
“The Privacy Act has worked pretty well to date, but it now needs a host of refinements to help us navigate the Information Superhighway.
“These days, information privacy touches almost every aspect of our daily lives, including our medical records and health status, our finances and creditworthiness, the personal details collected and stored on a multiplicity of public and corporate databases, and even the ability to control the display and distribution of our own images.”
“In For Your Information, the ALRC provides a clear framework for establishing world’s best practice in privacy protection. The massive range of issues has resulted in a huge report—but really this report comprises eight or nine substantial inquiries in one.” The ALRC’s recommendations included:
- regulating cross-border data flows so that an agency or organisation transferring personal information outside the country remains accountable for it; and
- rationalisation of exemptions and exceptions to current law, including removal of exemptions for political parties, employee records and small businesses, as well as improved complaint handling and stronger penalties.