Friday, September 23, 2011
Issues paper on right to sue for invasion of privacy
Minister for Privacy and Freedom of Information Brendan O'Connor today released the Issues Paper A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy. I haven't had a close look but it appears to pull together ground covered in the three law reform commission reports that recommended legislation. The commissions had their own consultative processes before reaching that conclusion, so it's ground hog day for those who take an interest. Contrary to what you might soon read in some coverage the media is not the central focus. Responses are invited by 4 November to 19 questions. Law degrees are not meant to be a mandatory requirement for participation.
1. Do recent developments in technology mean that additional ways of protecting individuals’ privacy should be considered in Australia?
2. Is there a need for a cause of action for serious invasion of privacy in Australia?
3. Should any cause of action for serious invasion of privacy be created by statute or be left to development at common law?
4. Is ‘highly offensive’ an appropriate standard for a cause of action relating to serious invasions of privacy?
5. Should the balancing of interests in any proposed cause of action be integrated into the cause of action (ALRC or NSWLRC) or constitute a separate defence (VLRC)?
6. How best could a statutory cause of action recognise the public interest in freedom of expression?
7. Is the inclusion of ‘intentional’ or ‘reckless’ as fault elements for any proposed cause of action appropriate, or should it contain different requirements as to fault?
8. Should any legislation allow for the consideration of other relevant matters, and, if so, is the list of matters proposed by the NSWLRC necessary and sufficient?
9. Should a non-exhaustive list of activities which could constitute an invasion of privacy be included in the legislation creating a statutory cause of action, or in other explanatory material? If a list were to be included, should any changes be made to the list proposed by the ALRC?
10. What should be included as defences to any proposed cause of action?
11. Should particular organisations or types of organisations be excluded from the ambit of any proposed cause of action, or should defences be used to restrict its application?
12. Are the remedies recommended by the ALRC necessary and sufficient for, and appropriate to, the proposed cause of action?
13. Should the legislation prescribe a maximum award of damages for non-economic loss, and if so, what should that limit be?
14. Should any proposed cause of action require proof of damage? If so, how should damage be defined for the purposes of the cause of action?
15. Should any proposed cause of action also allow for an offer of amends process?
16. Should any proposed cause of action be restricted to natural persons?
17. Should any proposed cause of action be restricted to living persons?
18. Within what period, and from what date, should an action for serious invasion of privacy be required to be commenced?
19. Which forums should have jurisdiction to hear and determine claims made for serious invasion of privacy?