A report issued by the Australian Law Reform Commission outlines a new tort to deal with invasions of privacy, such as posting sexually explicit photographs of a person on the Internet without their permission.
The ALRC report — Serious Invasions of Privacy in the Digital Era — was tabled in parliament this morning.
Then attorney-general Mark Dreyfus in June last year directed the ALRC to examine "Innovative ways in which law may reduce serious invasions of privacy in the digital era".
"The ALRC has designed a remedy for invasions of privacy that are serious, committed intentionally or recklessly and that cannot be justified as being in the public interest — posting sexually explicit photos of someone on the Internet without their permission or making public someone’s medical records," ALRC commissioner Professor Barbara McDonald said in a statement.
"The recommendations in the report also recognise that while privacy is a fundamental right that is worthy of legal protection, this right must also be balanced with other rights, such as the right to freedom of expression and the freedom of the media to investigate and report on matters of public importance."
Legislation dealing with the issue should be at the federal level and involve a stand-alone act rather than amendments to the Privacy Act 1988, the ALRC recommended.
"The Privacy Act largely concerns information privacy, while the new cause of action is designed to remedy a number of different types of invasions of privacy, including physical invasions of privacy. Further, the Privacy Act has a number of exemptions which would not apply to the new action," the report states.
Such an act should cover two forms of invasion of privacy, the ALRC recommended:
(a) intrusion upon seclusion, such as by physically intruding into the plaintiff’s private space or by watching, listening to or recording the plaintiff’s private activities or private affairs; or
(b) misuse of private information, such as by collecting or disclosing private information about the plaintiff.
In addition the report recommends adopting technology-neutral surveillance device laws at the Commonwealth level to replace current state and territory laws. Surveillance device laws should include a "responsible journalism" defence, the ALRC said.
The commission also recommended potentially extending the powers of the Privacy Commissioner to allow them to more generally investigate complaints about serious invasions of privacy beyond breaches of the Privacy Act 1988.
"This would provide a forum for consideration of complaints about serious invasions of privacy without requiring parties to commit the time and resources that might be needed for court proceedings,"
"Under these extended powers, the Commissioner could be given the power to recommend the non-publication or removal of private information from publication. However, court action would be required to enforce such a recommendation," the report states.