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Now you sue me, now you don’t

Tom Gardner writes an extra-credit assignment on privacy law.

webcam-spying

It’s illegal for you to film people in toilet cubicles, record secret conversations, or hack somebody’s computer. But if you let a friend publish the footage, recording, or computer file, they’re probably in the clear. The Australian Law Reform Commission’s (ALRC) ‘Inquiry into Serious Invasions of Privacy in the Digital Era’ led by Sydney University Professor of Law, Barbara Macdonald, will aim to address such legal anomalies.

At the centre of the inquiry is a proposed tort of privacy, which would allow people to sue for breaches of seclusion, such as spying on one’s neighbour, or the misuseof their private information, such as publishing embarrassing personal information.

Similar protections exist in comparable legal systems such as New Zealand, the UK, and some North American jurisdictions. “There’s a lot of interaction between countries,” says David Rolph, an Associate Professor at the University of Sydney who specialises in media law.

“Australia’s at the risk of being left behind in developments because these other legal systems are much more developed.”

In 2008, an ALRC inquiry recommended a similar privacy law but the press roundly criticised it for infringing on freedom of speech. Six years on, not much has changed: almost all Australian newspapers and TV stations (the ABC excepted) have argued that a tort of privacy is unnecessary and infringes on freedom of speech.

But Australia’s existing privacy laws have problems of their own.

Anna Johnston, a member of the inquiry’s advisory committee and former NSW Deputy Privacy Commissioner told Honi Soit that the existing Privacy Act was replete with loopholes. “The actions of individuals are exempt from privacy laws, as are the actions of small businesses, political parties and the media. And then even for those organisations which are bound by information privacy laws, there are so many exemptions,” she said.

“The NSW Police have a blanket exemption from privacy laws for their operational activities, which includes their management of criminal records and criminal history data. I find that unacceptable.”

David Vaile, the Executive Director of the Cyberspace Law and Policy Centre at UNSW, is similarly disparaging of the Privacy Act. “You have no right to go to court, no matter how bad it is or how ineffective any regulator response is. And this Act does not cover a vast range of other threats to privacy, and allows a large array of loopholes to completely sidestep even those within its narrow focus.”

Opponents in the press also warn that privacy laws could become an exclusive tool for the rich and famous. In the UK, privacy law has been a tool for celebrities such as Naomi Campbell, Max Mosely, and J.K. Rowling.

“I would hope that the tort should be actionable through some form of low-cost and informal legal mechanism,” said Johnston. “I see little point in introducing a tort of privacy if only the wealthy and famous could access its benefit.

“Personally, I am most aggrieved by privacy breaches that involve the most vulnerable people, such as asylum seekers or victims of domestic violence.”

One of the more anticipated aspects of the inquiry is the possibility that courts will be told to balance privacy law with the right to free speech. Rolph says that we should look at other rights when introducing privacy law reform. “I can’t help but think that you have to have regard for a statutory right to freedom of speech.”

The findings of the inquiry may not be implemented at all. This is the fifth government investigation into privacy law in as many years. But with each inquiry, the need for reform is becoming more and more apparent, according to Dr Lesley Lynch from the NSW Council for Civil Liberties.

“It is clear that the substantive arguments have been made persuasively. What is now needed is the political will to take this forward,” she said.

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