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Friday, August 21, 2009

Discussion underway about privacy cause of action

Richard Ackland in the Sydney Morning Herald and the editorial in The Australian today comment on the NSW Law Reform Commission recommendation for a statutory cause of action for breach of privacy. Ackland is somewhat bemused about aspects of the report, but doesn't dismiss the recommendation and the earlier Australian Law Reform Commission proposal, suggesting these and other developments are powerful arguments in favour of an Australian rights charter or bill. The Australian finds the NSWLRC's proposals "alarming." This seems a little more welcoming than the response in March to the ALRC report by the paper's Legal Affairs editor Chris Merritt's ("outrageous"). Both articles today see lawyers having a field day.

The commissions have made a strong case for a cause of action, separate from breach of confidence and defamation and not aimed specifically at the media, although you wouldn't know that from most reports. And for legislation rather than the common law as the preferred path from here. Both also recognise the need for national consistency. But there are differences in the detail and the approach to balancing privacy and other rights that require considered analysis and discussion. What signifigance should be attached to the fact that NSW report would qualify the right by reference to the public interest in the public being informed about matters of public concern, but makes no mention of "allowing freedom of expression", the terms used by the ALRC? Or to the NSW Commission differing with the ALRC over the need to specify examples in the law, whether actionable conduct need give rise to offence or substantial offense in intruding on reasonable expectations of privacy, and to differences in the range of available defences?

Meanwhile, none of the following may ever give rise to a cause of action, but in the last two days we have reports of concerns in Sydney and Melbourne about extension of surveillance cameras; Telstra paying $100000 in fines for breaches by its call centres of the Do Not call register; and the Australian Communications and Media Authority finding Channel 10 breached the privacy rules in the Commercial Television Code of Practice (no power to impose a penalty but staff have received training!).

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