Not OK, Glass: ALRC Discussion Paper Proposes Privacy Tort, New Surveillance Laws
Friday 4 April 2014 @ 9.38 a.m. | Legal Research
A discussion paper released on Monday (31 March 2014) by the Australian Law Reform Commission (ALRC) has proposed a new statutory cause of action in tort - ‘serious invasion of privacy’, in a radical overhaul of the current legislative scheme.
An inquiry into the extent and application of existing statutes and the changing technology landscape was originally launched in June 2013, by former Attorney-General Mark Dreyfus and is being led by Professor Barbara McDonald. The discussion paper, which is the last stage before a report is delivered to the Attorney-General, highlights the problems with state inconsistencies and the gaps in current laws, and recommends a series of major legislative reforms.
This includes the introduction of a new stand-alone Act, distinct from the currently existing Privacy Act 1988 (Cth). The ALRC says that the introduction of these protections will give Australians the kind of privacy protections currently enjoyed by people in UK, New Zealand and Canada.
The New Privacy Tort
The ALRC has proposed that the new tort have five elements. It would require:
- An breach of privacy by:
- intrusions upon the plaintiff’s seclusion or private affairs; or
- misuse or disclosure of private information about the plaintiff
- Intentional or reckless invasions of privacy (no strict liability)
- The plaintiff to have had a reasonable expectation of privacy in all of the circumstances
- The invasion to be “serious”
- The plaintiff’s interest in privacy to outweigh the defendant’s interest in freedom of expression.
Surveillance Devices
The ALRC report also recommends the introduction of uniform surveillance device laws throughout Australia, that include a technology neutral definition of ‘surveillance’ device. It also recommends the introduction of an offence ‘proscribing the surveillance or recording of private conversations or activities without the consent of the participants’.
The report specifically names Google’s “Glass” technology as a wearable device that presents new privacy challenges. Although it does not say so explicitly, some commentators believe that the surveillance offence would make Glass effectively illegal in Australia. The report does say that:
"A wearable device may have many legitimate uses that do not amount to surveillance. Whether or not the use of a device constituted an offence would depend on the circumstances of its use, such as the activity being captured, the extent of the monitoring or recording, and whether or not parties to the activity were aware that the device was being used."
Government Response
According to The Australian, the Federal Government has already rejected at least one of the ALRC proposals, with Attorney-General Brandis saying “The government has made it clear on numerous occasions that it does not support a tort of privacy”.
The closing date for submissions to the ALRC discussion paper is 12 May 2014.
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