Businesses may need to tighten their procedures in order to comply with a stricter privacy regime following the recent British News of the World phone-hacking scandal and subsequent public outrage. The Australian government was quick to respond to the scandal by hinting at possible privacy law reform. Changes to privacy law would bring Australia in line with international standards, and may give Australians the express right to sue over significant breaches of personal privacy.
This is not the first time this issue has been on the table. It follows the Australian Law Reform Commission's (ALRC) 2008 examination of Australian privacy laws.¹ The report, which comprised of 2,700 pages and 295 recommendations, looked at protecting privacy from all sources. The recommendations included the introduction of a new right to personal privacy, a proposal that has found legislative expression in jurisdictions abroad since the 1970s.
There is a concern that if this "tort of invasion of privacy" is developed by the common law courts (rather than being introduced by legislation), it could result in piecemeal and fragmented protection that is difficult to assess. The current patchwork of laws in Australia does not give redress of the kind proposed by the ALRC. Privacy Minister Brendon O'Connor has asserted that with no general right to privacy, there is no certainty for anyone wanting to sue for an invasion of their privacy. He further said that the government will seek the views of the public on introducing this statutory right in Australia.
The ALRC report recommended a general cause of action for invasion of personal privacy, supplemented by a non-exhaustive list of the circumstances that could give rise to the cause of action, indicating that this would be useful in guiding courts as to the scope of the action.
Whatever the model of reform, change seems more imminent now than it has previously. In August 2009, a year after receiving the ALRC report, the government announced that it would implement many of the proposed recommendations, but to no avail. In the wake of developments in technology (in particular social networking, mobile media and other online innovation) and following a barrage of serious privacy and data security breaches, the government's offer of a public consultation in a forthcoming issues paper should be taken seriously.
The recent phone hacking scandal that prompted the announcements of Mr O'Conner has certainly placed the issue back in the spotlight and it may not be long before all Australians have a formal right to personal privacy.
We will keep you updated on the movement towards the introduction of this right to privacy.
Contributing author: Darryl Slabe, Graduate
¹Australian Law Reform Commission, "For Your Information: Australian Privacy Law and Practice" ALRC Report 108 (2008).
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