#6564 - Privacy - Intentional Torts

PRIVACY 124 | INTENTIONAL TORTS PRIVACY * * Not clearly defined o Different areas of the law stretch to cover privacy Recent reviews on the issue o ALRC Report 2008 o Issues Paper 2011 SS? Introduction of a statutory action and if so, what elements a statutory action might include. This paper draws on the reports and analysis of the ALRC, NSW Law Reform Commission and the Victorian Law Reform Commission. Considers the current legal position in other comparable jurisdictions The Privacy Issue: * "Until privacy laws protect us, every move will be watched" (October 8, 2012) by Michael Holcroft o Check Facebook and ''like'' something, go to eBay and buy something; information and ''profiles are being created''. o Head to the train station, use your myki card. The card contains personal information, and if registered, could show banking and travel details. These could be shared with police as well as transport authorities and the company running the system. o Walk down the street and the CCTV cameras capture your image. Use your mobile phone, the network records the closest "line of sight" tower. In the lunch break, you go to a department store and use a loyalty card which contains personal details. The information on the card might be shared with marketing and data analysts, call and direct mail centres. o In the evening, you drive to a nightclub. If you travel on the toll-- way, that information is recorded. At the door of the club, CCTV footage again. A bouncer using biometric technology scans your driver's licence. It's to prevent entry of banned patrons, but it is reported that the data may also be used to provide demographic information. * Examples: o Boyfriend and girlfriend consensually make a sex tape; they break up and he puts it on the Internet. SS? Question of when does the right to privacy arise? o Government uses Origin electric bill to see who is growing cannabis plants in their homes, using many indoor lights. SS? Information was integral to the conviction - bill shared by the energy company without consent. INTENTIONAL TORTS | 125 Privacy Reform: * Australian Law Reform Commission o ALRC Report 108 (May 2008) * Victorian Law Reform Commission o Surveillance in Public Places: Final Report 18 (2010) * New South Wales Law Reform Commission -- NSLWRC Report 120: Invasion of Privacy (2009) * Issues Paper o Released Sept. 2011 o Various Submission received * Yet another Review o Media says what we do now is fine o Civil Libertarians want increased privacy * Comments and recommendations * Have been changes but not in relation to personal privacy Background into Privacy: * International Covenant on Civil and Political Rights, (ICCPR) 1966 o Australia became a signatory in 1980 International Covenant on Civil and Political Rights, Article 17 1. No person shall be subjected to arbitrary or unlawful interferences with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. Does the ICCPR apply in Australia? * Yes: as a matter of international law * Not really: as a matter of domestic law o But "in cases where domestic law is ambiguous, international covenants should be used as a guideline for interpretation." Young v Registrar (NSW 1994) * Until it is reflected in domestic law, it does not involve individuals. The Australian government have an obligation to protect privacy through this Covenant, however they claim current laws do. 126 | INTENTIONAL TORTS Bill of Rights: * ACT and Victoria have introduced a Bill of Rights o Section 12 of the Human Rights Act 2004 (ACT) o Section 13 of the Charter of Human Rights and Responsiilities Act 2006 (Vic) o Both recognise a right to privacy and reputation Everyone has the right --- a) not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and b) not to have his or her reputation unlawfully attacked * * * In tort, this is protected through trespass to land/person/goods etc o argument that the current common law system already does this There is no obligation on courts to implement these rights in private disputes While Bill of Rights are mechanisms to promote the application of the legislation, neither of these Acts provide individuals with privacy protections that are able to be enforced in the same way as a cause of action would o Issues Paper, p14 INTENTIONAL TORTS | 127 HOW IS PRIVACY CURRENTLY PROTECTED IN AUSTRALIA? * What is being protected? o Information o Communications o Personal privacy 1. Information: * Privacy may be protected by a range of regulatory, administrative, educational, and legal mechanisms o Issues Paper, p 7ff * There is a limited right to privacy (over information) o Privacy Act 1988 (Cth) * Just because we have a Privacy Act does not mean we have a right to privacy o Only applies to certain entities * The type of privacy covered by the Privacy Act is people's 'personal information ' * Personal information is information that identifies you or could identify you. o your name or address o medical records o bank account details o photos o videos, Privacy Act 1988 (Cth) s6 Personal information means information or an opinion, (including information or an opinion for part of a database), whether true or not and whether recorded in a material form or not, about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. * The Privacy Act applies to: o how your personal information is collected (e.g. the personal information you provide when you fill in a form) o how it is then used and disclosed o how securely it is kept o your general right to access that information o the use of your tax file number o how credit information about you is handled by credit reporting agencies and credit providers. 128 | INTENTIONAL TORTS Who does the Privacy Act apply to? * Most Australian, ACT and Norfolk Island public sector agencies o 11 Information Privacy Principles SS? What information can be collected? SS? How it can be stored? SS? Who has access to information? SS? How it can be collected? * Large businesses, all health service providers and some small businesses and non--government organisations o Ten National Privacy Principles SS? Highlights what can be done with personal information * Credit reporting agencies, credit providers and some third parties (credit reporting provisions) Who doesn't the Privacy Act apply to? * Individuals The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) * The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Privacy Amendment Act) was introduced to Parliament on 23 May 2012 and was passed with amendments on 29 November 2012 * The Privacy Amendment Act introduces significant changes to the Privacy Act - Australian Privacy Principles (APPs) * the use and disclosure of personal information for direct marketing, * cross--border disclosure of personal information. - the Australian Information Commissioner (the Information Commissioner) gets enhanced powers - Changes to credit reporting * They commence on 12 March 2014 * Message from Timothy Pilgram, Australian Privacy Commissioner * Changes do simplify things in regards to the Privacy Principles however it does not mean that we have a right to privacy o Acts on recommendations from 2008 INTENTIONAL TORTS | 129 Electronic Health Records: * Legislative framework for the Australian Government's personally controlled electronic health (eHealth) record system o Personally Controlled Electronic Health Records Act 2012 (Cth); o Personally Controlled Electronic Health Records Regulation 2012 (Cth) * From July 2012, people could choose to register for their own personally controlled electronic health (eHealth) record ---- an electronic summary of someone's health information o Opt--in system that allows access to health information from different medical practitioners o Collation of records o Repository of health information SS? Others can access it - privacy issue 2. Communications: * Communications are protected * There are various Cth, State and Territory Acts dealing with communications o Telecommunication Act 1997 (Cth) * There are also Acts that regulate the recording other conversations o Invasion of Privacy Act 1971 (Qld) o Listening Devices Acts NSW, ACT o Surveillance Devices Acts 2004 (Cth) * It does not protect personal privacy, only communications Telecommunications Act 1997 (Cth) * Balances the need to protect individual privacy and confidentiality with the national/public interest o Means that a person cannot listen to or record, by any means a communication in its passage over the communications system without the knowledge of the person making the communication * Cannot communicate this to another person * Communication includes speech, sound, data text, visual images - therefore extends to emails * Must be passage over a system - so direct tapping, not just recording at the other end Telecommunications Act, Part 13 * Carriers must protect the confidentiality of information about disclosure, unless o Imminent threat to life or health... SS? In 2012, (Vodaphone) phone records were used to find a missing plane in Queensland 130 | INTENTIONAL TORTS