Introduction
There has been a tremendous improvement in the way we communicate and share information within the last quarter of the 20th century to date. The development of the internet has not only made communication easier, but also enabled people to carry out various activities from banking, education, booking of tickets, payments of bills, and buying of products from the comfort of their homes. However, such liberation has come at a cost as identity and security issue has necessitated that a vast of amount of information about individuals are stored in servers and databases of the relevant institutions. The whole notion of privacy as advocated in the past is fast becoming a mirage as the world finds better ways of ensuring convenience and ease of doing things.
About two decades ago, it was unfathomable to share bank details, but now with the emergence of online transactions and payment methods like PayPal, more and more people are willing to sacrifice some privacy in pursuit for convenience. The emerging global threats to security has also given states more leverage on the sort of information that they keep in order to maintain law and order. New technology has been developed to aid in surveillance, and one can hardly walk a few meters in town without seeing a CCTV camera at the corner street. Surveillance drones are becoming a must have for any serious military outfit, and intelligence agencies are devising more ways to monitor threats to national and international peace. However, just like it was centuries ago, most people are still wary about the privacy of the personal information they share. Most still believe and want to trust the institutions that demands such information to conduct themselves professionally while in possession, and only use the information as a means to achieving the set objective. In this regard, it is imperative on the government to ensure that that the laws governing privacy are constantly refined in the face of new technological advancement. The media, which remains a significant cog in this wheel must be wary of these laws so that a balance is maintained between their freedom and the protection of privacy. This paper will address albeit in cursory the following questions; (1) Does the existing legal framework offer adequate protection to the individual who is wary about the privacy of personal information? (2) Should there be a new tort of serious invasion of privacy as recommended by the Australia Law Review Commission (ALRC)? (3) What balance would this proposed tort law portend to media players vis-à-vis individual privacy?
Privacy Law in Australia
So much like the popular system of the United States, the Australian Constitution establishes a federal system of government which therefore ensures the distribution of power between two levels; the Commonwealth and the states. The Constitution also outlines the specific subjects about which the overall Parliament may make legislations. Privacy is not in this list of subjects outlined in the Constitution, however this does not also mean that Parliament has no jurisdiction over the same. For this reason the Privacy Act of 1988 was passed by the Australian Parliament in partial fulfilment of its external affairs power. This fulfilment is expressly stated in the Preamble of the Privacy Act which points out to the intent to fulfil the state’s obligation to the International Covenant on Civil and Political Rights (ICCPR). This Act thus give the federal government an overarching role in the handling of information by all stakeholders in the Australian Government, the ACT Government and the private sector. However, the Act does not dictate, to a large extent how personal information is handled by state governments and the northern territory government. As passed, the Act contained eleven Information Privacy Principles (IPPs) whose application are specific to the outlined government and related agencies. There were also ten National Privacy Principles (NPPs) that apply to the private sector.
After about seven years, the law governing privacy at the Federal level was finally amended on 29 November 2012. Privacy Amendment (Enhancing Privacy Protection) Act 2012 will commence on March 2014. There are some poignant changes that alters the law as it was passed, mainly with a view to address the deficit occasioned by new development in technology and the handling of information. Whilst there were some concern about the astuteness of the anticipated amendment at the Bill stage, very few of these were addressed. But a fair analysis will also remember that there are some positive amendments particularly with regard to the power given to the Privacy Commissioner. The Commissioner will have enhanced powers which will include the ability to accept enforceable undertakings, seek civil penalties in case of serious breaches of privacy, and conduct assessment of privacy performance for both the government and private businesses.
There are also some important changes regarding credit reporting which will include; introduction of a more comprehensive credit reporting regime which will allow for the reporting of some information about the credit commitment of individuals and their payment history over the previous two years, a simplified and enhanced complaints and correction process, a prohibition of the reporting of credit information about children, a prohibition on the reporting of default of credit of less than $150, the introduction of specific rules to deal with pre-screening of credit offers, the introduction of specific provisions that allows an individual to freeze access to their personal information as related to their credit in cases suspected of identity theft, the introduction of civil penalties for breaches of certain credit reporting provisions, a requirement for credit providers to be members of EDR schemes which are recognized under the Privacy Act so that they can be able to take part in the credit reporting system.
There are also new schemes for the reporting of disputes. The Information Commissioner will have the power to recognize various external dispute resolution schemes in handling privately-related complaints. Importantly, from the commencement date, under Part III of the Privacy Act, a credit provider will be required to be a member of an EDR scheme recognized under the Privacy Act so that they can participate in the credit reporting system.
There is also an introduction of a new provision on codes of practice about information privacy (APP codes) alongside a code of practice for credit reporting, including an enabling mechanism for the Commissioner to develop and register binding codes that are in the public interest. To this end, the OAIC is in the process of development of code guidelines that will assist agencies and organizations considering creating codes specific to them and within the confines of the law.
The following changes have nevertheless come under criticism as some believe that they do not in a major way enhance the protection of privacy. Some of the key deficiencies include the dispute whether the 13 new Australian Privacy Principles is an improvement to the existing NPP’s and the IPP’s. As an example, the existing right to anonymous transaction has been watered down. The right of the consumer top ask questions like “where did you get my name?” can be avoided whenever it is not practicable for the business to provide an answer. Moreover, personal information of any Australian may also be sent to countries outside Australia without any privacy law. Such victims have the onus to prove breach, a situation that remains highly distasteful. The new law also allows for the possibility of exemptions from some of the APP’s to be created by the Privacy Commissioner.
It has also been argued that the lauded improvements concerning the Privacy Commissioner are of little substance unless a formal complaint is made and the Commissioner makes a formal decision under section 52 of the Act. Arguably, within the last six years alone, the Commissioner has made only one section 52 decision, a situation that leaves a lot people with the feeling of little commitment from the Commissioner on using the section. The proposal that was made that would have allowed for such complaints to straight to the Federal Court was dropped at thus the commissioner still hold the last recourse. There has been no effort to reenergize the Codes, as they remain largely the same despite having shown little success within the last 12 years.
Most of the key recommendations made by the ALRC did not make to the amendment, while some effort was made to redraft the amendments so that they do not reflect initial intention of the review commission. It is still expected that that further amendment aimed at implementing the remaining recommendations must reflect the interest of the ALRC.
Is There Need for a New Tort Law?
The need for a statutory tort law has been largely driven by the slow or stagnation of the development of common law in the development of tort laws in privacy issues. This been precipitated by the High Court’s decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (ABC v Lenah Game Meat) which had raised prospects that the seemingly well-established position in common law will be revised. Private nuisance as stated in Victoria Park Racing v Taylor in itself has not been an ample protection to the but it has also not been an impediment to the development of the common law principles in tortious liability. Gleeson CJ in his dictum stated that the law should be more astute now than in the past to identify and protect interest of a kind which would rightly fall within the concept of privacy. This absence of clarity from the High Court on the issue of privacy has been product of uncertainty that two inferior courts recognized that ABC v Lenah Games Meats demonstrated enforceable right to privacy under Australian law and imposed liability for its infringement.
The most important argument for a statutory provision is that the existing legal framework offers little protection to the possible invasions of privacy in the face of the recent technological advancements. A statutory cause would thus work towards filling the gaps that are still apparent in law even with the attempts at reforming the Privacy Act as enacted in 1988. It will provide greater clarity, certainty, and predictability about the rights and responsibilities and liabilities. The legislature by any means will be best placed to identify the challenges that are starkly visible in the face of increasing technological advancement. The court will also be provide with the necessary clarity in terms of remedies that would be available in an event of a breach. Moreover, the obligations that Australia has with regard to the fulfilment of its obligation to the International Covenant on Civil and Political Rights (ICCPR). There are concerns that despite being a signatory to the ICCPR and has even implemented a domestic law, but has pointed out above, some of the possible remedies available under this convention are not available to the public because of the distinctive application of the law within the Commonwealth and the States. Under Article 17 of the ICCPR, individual citizens should be accorded the right to protection against “arbitrary and unlawful interference of privacy. Further, Article 2(3) provides that private citizens should be entitled to remedies that are effective should there be such a breach. It is also possible to argue that there should be legislative provisions aimed at the protection of privacy as of right, and under the general human rights requirements. There are examples already of state that have developed comprehensive human rights legislations that incorporate privacy. The Australian Capital Territory and Victoria probably have the best examples in this regard.
Proposed Tort Law and the Media in Australia
While there will be no development of a possible statutory tort law after the recommendation was returned back to the ALRC, it is right to speculate what this law would portend to the media, owing to the fact that most of the issues that attract tortious claims around privacy emanate from the media and its disseminative ability. The ALRC recommendation in 2008 about the need for statutory tort was similarly echoed by the New South Wale Law Reform Commission, and the Victorian Law Reform Commission. This urgency is a recognition that the law as it is has proved inadequate. However, the media fraternity has received this news with mixed feelings. The 2011 announcement of a possible future tort law for privacy attracted muted applause, with one journalist claiming that such a law would ultimately intimidate the media and mark the origin of undesirable litigation. Perhaps such responses were motivated by the arrest of journalist in the United Kingdom after the phone hacking scandal which vastly implicated Rupert Murdoch’s interests.
The balance between public interest and privacy is important in order to maintain professionalism of the media. There is need to identify a combination of conditions and circumstances that may lead to public interest overriding the right to privacy, and the circumstances that may tilt the scale in favor of privacy. However, there is some technicality on establishing a balance because of the imprecision of the definitions “privacy” and “public interest”. Even the Act does not give proper definition of what would qualify as “private information.” The rapid evolution of the media has seen the emergence of social media such as Instagram, Facebook, Twitter, Google+, being key players in sharing of private information. In the light of these development, and the fact that the law has often played “catch up” to the development in technology. It is likely that the law against privacy may cause stagnation in the development in the media if the proposed law is rigid and out of touch with the speed of technology. The changes proposed in the media in the face of perceived intrusion of privacy still largely favors the media, though there was uproar from media companies. The federal government has proposed a watchdog, and an Independent Public Interest Media Advocate. It would be expected that such regulations would offer an impetus for the development of privacy tort. However, the media in Australia, just like in the United Kingdom believes that a move towards statutory tort in breaches of privacy will pose a death knurl for media freedom. Certainly any democracy that hopes to rightly call itself as such will want to adopt any laws that will offer the biggest threat to it.
Conclusion
Self-regulations should be strengthened so that the stakeholders develop mechanisms of ensuring that serious breaches of privacy, and in scenarios where the need to preserve privacy far outweighs public interest is dealt with to encourage journalistic professionalism and to protect the right to speech, and the freedom of the media. The ALRC will have to further investigate the potential impact of coming up with a statutory framework for tortious claims in infringements of privacy. In this pursuit, clear and precise definitions will be necessary to map out that which fall within and without. After the commencement of the amendment in 2014, the various reservations that have been voiced should also be considered as the law is put into practice. Such a practical approach will also inform on the need to formulate any laws if the passed amendments fail to meet the anticipated protection.
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