Victims of misuses of private information and intrusions into private space in Australia should have a right to sue for violations of privacy, a major report from the Australian Law Reform Commission says.
In a report released on Wednesday the commission recommended the federal government should introduce a right to sue for major breaches of privacy in Australia.
The long-anticipated report suggests substantial changes to Australia’s privacy law to allow victims of abuses of privacy to take legal action, while attempting to balance the right to freedom of speech and ensure that journalists’ ability to report on matters of public interest is not affected.
The key findings from the report include:
– The introduction of a federal tort of privacy for either an “intrusion upon seclusion” or a “misuse of private information”.
– A court must be satisfied that the public interest in privacy outweighs any countervailing public interests, such as freedom of political expression, freedom of the press, open justice or public health and safety.
– The invasion must be serious and needs to be committed “intentionally or recklessly”, but need not cause actual damage. Damages for emotional distress may also be awarded.
The commission recommended that the action allow individuals to have access to a range of remedies, including damages, corrections, apologies and injunctions restraining publication.
Commissioner 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 – for example, posting sexually explicit photos of someone on the internet without their permission or making public someone’s medical records.
“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 release of the report has come at a time where there have been a number of substantial privacy breaches in Australia. On Monday it was reported that a large number of celebrities had photos of them nude posted online after unauthorised access to their Apple accounts.
Earlier in the year a major data breach also exposed the personal details of almost 10,000 people in detention, including a third of all asylum seekers in Australia. However, the federal government has indicated on several occasions it does not support a tort of privacy.
Australia has a patchwork frame of privacy laws covering the commonwealth, states and territories and governing different aspects of information security. The introduction of a right would, the ALRC says, help “cover the field” further to protect the privacy of Australia.
The Australian Lawyers Alliance spokesman, Greg Barns, said the alliance supported the introduction of a remedy for major breaches of privacy.
“At the moment if a person’s privacy is seriously breached there are very few avenues of address,” he said.
“As we’ve seen over the past week with the pictures of celebrities posted over the internet, this is a burgeoning field in the way people’s rights can be infringed.”
He added the commission’s proposals were “balanced against the right to freedom of expression”, and the action could be invoked where there was “simply no public interest case available”.
“What we’re talking about here is purely breaches of privacy which are done for the purpose of either newspaper or media organisations selling copies, or alternatively simply because a person is high profile in the community or if it is designed to hurt a person,” he said.
The report justifies the recommendation for a statutory tort in part due to the limited developments made in the Australian courts in the past decade to recognise a right to protect privacy. The last time the high court seriously examined the issue was in a 2001 decision where an attempt was made to restrain the ABC from publishing an illegally obtained video that revealed details about the treatment of animals at a “brushtail possum processing facility”.
The ALRC also recommended more substantial powers for the Australian privacy commissioner to investigate complaints about serious invasions of privacy. Changes are also proposed to Australia’s surveillance and listening devices laws, which vary in the states and territories and apply different standards and tests.
The privacy commissioner, Timothy Pilgrim, said in a statement on Wednesday that he welcomed the release of the report.
“This report recognises the changing nature of challenges to privacy in the digital age and engages with a large number of contemporary privacy issues. The [Office of the Australian Information Commissioner] notes the recommendations to expand the powers of the privacy regulator and looks forward to the government’s consideration of the report.”
The shadow attorney general, Mark Dreyfus, who commissioned the report when in government, thanked Mcdonald and the ALRC president, Rosalind Croucher, for the report.
“The report recommends the creation of a statutory right to privacy allowing Australians to take legal action if they fall victim to a serious invasion of privacy. A right to privacy already exists in the UK, New Zealand, the USA and Canada.”
A recent report of the House social policy and legal affairs committee, chaired by George Christensen, concluded that the government should immediately consider the introduction of a statutory right to privacy.
Dreyfus said: “In opposition senator Brandis stated his opposition to a right to privacy in extreme terms.”
A spokesman for the attorney general, George Brandis, said: “The government has made it clear on numerous occasions that it does not support a tort of privacy.”
The release of the report also comes on the eve of the first hearing of an appeal in the federal court for a group of asylum seekers affected by the asylum data breach that exposed their personal details. The federal court will hear their challenge to an earlier circuit court decision on Thursday.