Does Australia Need Breach of Privacy Laws?

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Invasions of privacy have become commonplace in society.

The popularity of social media means that for many people, sharing personal information and photographs with the rest of the world is an every day, even enjoyable activity.

For others who would prefer to remain more private, having their personal information and photographs published online or in popular media can cause a great deal of distress.

According to a recent report published by the Australian Law Reform Commission, there should be more protection for both celebrities and ordinary members of the public when it comes to breaches of privacy, which should apply online and in person.

Although there have been requests for law reform to bring in civil penalties for breaches of privacy over the years, the need has become even greater now that we have smartphones and the internet, which provide a range of new avenues for breaches of privacy.

The consequences of breaching privacy without consent were illustrated recently when private photographs of a number of well-known celebrities including Jennifer Lawrence and Kirsten Dunst were hacked and published online.

Although these photographs attracted a lot of interest from the public, the celebrities involved have had mixed responses, from silence to outrage.

In a similar incident in 2011, a US hacker leaked private photographs and information on celebrities including Scarlett Johansson and Mila Kunis after using the ‘forgot my password’ feature to hack into their phones and access the photographs and information.

He was later sentenced to 10 years in prison.

Australia is one of the few western countries that don’t have a specific law dealing with breaches of privacy.

This means that there is currently little to deter people from hacking into the personal information of people and publishing it online.

Previous attempts to create a tort dealing with privacy reform have been met with claims that it would infringe on press freedom.

The most recent report by the Australian Law Reform Commission is the latest attempt to draw up in-depth legal ramifications for breaches of privacy in Australia by way of a tort.

This report was intended to deal with invasions of privacy from a number of different causes, including smartphones, video footage, drones and government surveillance.

It also takes into consideration wider issues such as “big data” and how that could potentially be considered a breach of privacy.

Under the suggested new legislation, a person or group of people would be able to take legal action when a breach of privacy had occurred, as long as a number of factors were present.

These include:

  • That the invasion of privacy is considered serious.
  • That the matter involves an intrusion into seclusion or the misuse of private information (for example, photographs).
  • The breach must have been committed either recklessly or intentionally, not just out of negligence.
  • That the plaintiff would have had a reasonable expectation of privacy under the circumstances.
  • Damages can be awarded for emotional distress as well as any financial losses or other damage incurred.

One of the most crucial elements of this proposed legislation is that the public interest in privacy outweighs any other public interest.

Other public interests can include freedom of speech, freedom of the press, national security and health and safety.

If the breach of privacy can be justified on strong public interest grounds, the plaintiff may not be able to succeed in court.

There are also a number of limitations that have been suggested.

These include:

  • There should be a limitation period of one year after the plaintiff realises the breach has occurred, or three years after the actual breach, depending on which comes first.
  • Actions can’t survive after the death of the plaintiff or the defendant.
  • Cause of action to be limited to natural persons.

The report also listed a number of possible defences to charges made under this legislation.

These include lawful authority, where the breach was necessary for the defence of a person or their property, necessity, consent, for the purposes of public reporting of documents, and where it was required for fair reporting of public proceedings.

The proposed remedies for serious breaches of privacy include injunctions, financial settlement, destruction and removal of material, correction, and apology orders.

According to the report, the majority of stakeholders were in favour of enacting legislation to protect people who were the victims of serious breaches of privacy.

It also stated that although breaches of privacy by the media in Australia were less widespread and extreme than in the UK, they still occurred and financial settlements still took place when they did.

With recent developments in surveillance technology and the ability for hackers to access private information stored on computers, mobile phones and in cloud storage systems, it makes sense for Australia to create legislation protecting people from serious breaches of privacy.

The report was tabled in parliament earlier this month and it will be interesting to see whether anything results.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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