In the world of 2014 the meaning of privacy is completely different to what it meant even a year ago, with a lot of that to do with the rise and rise of social media. The question to ask though is ‘has the law kept pace with this changing definition?’
A discussion paper recently released by the Australian Law Reform Commission (“ALRC”) highlights this issue and puts forwards some suggestions for reform that would bring the law more into line with the new definition of privacy and the impact technology and social media has had upon it. The paper discusses how laws should be amended to better protect serious invasions of privacy.
The first recommendation of this new paper is for a new tort to be introduced to protect a person’s privacy. The elements of this proposed new tort are as follows:
- The invasion of privacy must intrude into the plaintiff’s seclusion or private affairs (including unlawful surveillance) or relate to misuse or disclosure of private information about the plaintiff;
- The invasion must be either intentional or reckless;
- A person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances;
- The invasion must have been ‘serious’ in all the circumstances and in assessing ‘seriousness’, the Court must consider whether invasion was likely to be “highly offensive, distressing or harmful to a person of ordinary sensibilities in the position of the plaintiff’s and
- The court must be satisfied that the plaintiff’s interest in privacy outweighs the defendant’s interest in freedom of expression and any broader public interest.
Other Proposals:
The discussion paper also contained several other proposals that should be implemented to strengthen Australia’s privacy laws, including:
- The introduction of uniform surveillance laws that would prohibit the use of surveillance to observe or record private activities (subject to certain exceptions).
- A new ‘Australian Privacy Principle’ be added to the Privacy Act 1988 (Cth) which would allow an individual to request that an organization or government agency take reasonable steps to deleve or de-identify personal information.
- The right to bring breach of confidence actions, such as a right to recover damages for emotional distress as a result from the disclosure of private information.
- The expansion of the Australian Communications Media Authority’s powers to give them to power to order compensation be paid to a person by a broadcaster where that broadcaster seriously invaded a person’s privacy.
The proposals put forward by the by the ALRC are designed to update Australia’s privacy laws to protect a person’s privacy to a much greater level in a world where drawing the line between what is public and what is private is all the more difficult.