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May 2016

"Privacy, once lost, cannot be regained."

NSW Standing Committee on Law & Justice

 

Recent technological advances are blurring the lines between the private and public domain more than ever before. All it takes is the push of a button to publish content, and thanks to the viral nature of social media, reach an audience of millions.

As it stands, there is no specific protection of personal privacy in Australia. Sure, there’s defamation, breach of confidence,  and other incidental statutory and common law remedies, mostly for economic loss. But none to purposely compensate for damages resulting from an intrusion of privacy – especially emotional distress. 

If you’ve been paying attention to the news lately, you’ll know that there’s a push for New South Wales to “lead the way…” creating a new legal action for serious invasions of privacy.  

In its March 2016 report, the NSW Standing Committee on Law and Justice made seven recommendations to the NSW Government, and Police Force, to address the inadequacy of current legal remedies. The proposal garnering most attention is the third: “That the NSW Government introduce a statutory cause of action for serious invasions of privacy.”  

Whilst not the first such inquiry, it’s the latest amidst growing concerns – fuelled by the ‘revenge porn epidemic’ and disturbing antics of many a disgraced celebrity. The ALRC released similar proposals for a national legislative scheme in 2014 and 2015. Specifically focusing on the establishment of a ‘tort’ of privacy.  

At a Federal level, this is yet to be enacted, leaving the door open for the States to legislate. Surely some legislation is better than none at all, right? It has been advised that if Commonwealth legislation is not passed, the States should at least adopt uniform legislation.  This would avoid the inevitable cross-jurisdictional confusion that arises whenever a wide-reaching act is legal in one state, but not in another… 

The proposed NSW laws largely follow the ALRC’s existing recommendations. If implemented, anyone could be liable, with individuals and organisations (private and government alike) able to be sued. Intentional, reckless or even negligent (in the case of corporations) breaches of personal information would be an offence.  

Whilst there is concern, particularly from the press, that such legislation would impede on our implied freedom of expression it has been recommended that a public interest-based test be adopted by the court when weighing up the damage to an individual. Recommendations ranged from whether the court be ‘invited’ or ‘directed’ to do so, with the latter considered more important by many, to ensure that political communication, artistic expression and freedom of the media are upheld.

The proposed law will require that a plaintiff demonstrate two elements to establish the basis of a claim. The first is ‘a reasonable expectation of privacy on the part of the plaintiff’ and second, ‘that any claim for protection of privacy must not be of lesser value than any competing public interest in the same circumstances.’  Defences would include “fair report of proceedings of public concern, and an exemption for children and young people”. 

It has been recommended that redress be provided through a ‘complaints mechanism’, whereby the NSW Privacy Commissioner had the scope to hear and determine individual cases.  Additional Commissioner powers such as the making of orders for non-financial remedies (ie. apologies and takedown / cease and desist orders) have also been endorsed.

Although a comprehensive report addressing many stakeholder concerns, there are still a number of matters to be reconciled. Further, the NSW Government is yet to respond. Premier Mike Baird has acknowledged the report, vowing to respond once the Government has considered the recommendations.

You can read the full report here. Watch this space, Survivors! 

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