The Australian Law Reform Commission (ALRC) has recently released a report called Serious Invasions of Privacy in the Digital Era, setting out recommendations to strengthen people’s privacy in the digital environment, including to give victims of serious invasions of digital privacy the right to sue.
Are privacy breaches an issue in Australia? In June 2014, the data of 10,000 asylum seekers was hacked. Later that month, Cupid Media hijacked 254,000 Australian online dating profiles. Even more recently, several A-grade celebrities had semi-nude photos uploaded when Apple’s iCloud database was hacked.
The Privacy Act currently doesn’t give individuals the right to sue for privacy breaches, and there is no general law tort of privacy. The ALRC Terms of Reference were for the ALRC to design a tort to deal with serious invasions of privacy.
Can individuals sue under the Privacy Act?
To make a privacy complaint in Australia you must complain directly to the business, agency or organisation that you consider has breached your privacy, and wait 30 days for a response.
If they ignore you or you’re unhappy with the response, you can lodge a complaint with the Office of the Australian Information Commissioner. The Commissioner then investigates on your behalf. Currently, in Australia, you cannot directly sue someone for invading your privacy.
Balancing rights to privacy with other rights and freedoms
In Australia, there is increasing interest in the right to privacy, including the right to sue for breaches of privacy. The widespread use of social media means that a breach of privacy, for example a private photo being taken and posted publicly, can be made widely available in a short time.
Stronger privacy rights, however, could place journalists and publishers at risk for publishing photos or information that breach someone’s privacy. Freedom of press and freedom of expression are rights in our Constitution. If people had a right to privacy, how would this interact with these freedoms? Issues that could arise include – could changes to privacy law in Australia give victims the right to prevent journalists from publishing private material? What are the implications for publishers? How would privacy rights interact with the tort of defamation, where truth is a defence for publishers?
Balancing the media’s right to report with individual’s right to privacy is a challenging task. A politician being photographed in a situation that suggests he or she may be involved in corruption is one example where the freedom of the press may outweigh any right to privacy.
The Australian Law Reform Commission Report and responses
The ALRC Commissioner for the Inquiry, Professor Barbara McDonald, said “The ALRC has designed a remedy for invasions of privacy that are serious, committed intentionally or recklessly and that cannot be justified as being in the public interest… The recommendations in the Report also recognise that while privacy is a fundamental right that is worthy of legal protection, this right must also be balanced with other rights, such as the right to freedom of expression and the freedom of the media to investigate and report on matters of public importance.”
The Report also recommends that the current state and territory laws be replaced by a new Commonwealth surveillance law, so that there are consistent surveillance laws throughout Australia.
Australia’s Privacy Commissioner, Timothy Pilgrim, applauded the ALRC’s detailed recommendations. He said “This report recognises the changing nature of challenges to privacy in the digital age and engages with a large number of contemporary privacy issues.”
Currently, the right to sue for privacy violations already exists in the UK, New Zealand, the USA and Canada, leaving Australia behind in terms of law reform.
The spokesperson for the Attorney General, George Brandis seemed unswayed by the recommendations. “The government has made it clear on numerous occasions that it does not support a tort of privacy.”
The Privacy Commissioner is investigating the breach that resulted in asylum seeker’s information being made public, and there are multiple law suits by asylum seekers claiming that the Government was negligent. We watch with interest to see the Federal Court’s decision and whether there will be comment on a tort of privacy.
Ursula Hogben is the co-founder, COO and legal practice director of LegalVision ILP, an online business legal services provider.