Report into Serious Invasions of Privacy in the Digital Era released

The Australian Law Reform Commission’s Final Report, Serious Invasions of Privacy in the Digital Era (Report 123, 2014) was tabled in Parliament today and is now publicly available.

The Terms of Reference for this Inquiry, required the ALRC to design a tort to deal with serious invasions of privacy in the digital era.  In this Report, the ALRC provides the detailed legal design of such a tort located in a new Commonwealth Act and makes sixteen other recommendations that would strengthen people’s privacy in the digital environment.

ALRC Commissioner for the Inquiry, Professor Barbara McDonald, said “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—for example, posting sexually explicit photos of someone on the internet without their permission or making public someone’s medical records. 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.

The ALRC has closely considered submissions from industry and the community, as well as common law principles and developments in other countries. The recommendations, taken together, would better protect people’s privacy in the digital environment, while protecting and fostering freedom of speech and other public interests.” 

The Report also recommends that a new Commonwealth surveillance law be enacted to replace existing state and territory laws, to ensure consistency of surveillance laws throughout Australia, and a number of other reforms to supplement the statutory cause of action. 

During the course of the Inquiry, the ALRC produced two consultation papers, received 134 submissions and undertook 69 face to face consultations with media, telecommunications social media and marketing companies amongst other organisations, many expert academics, specialist legal practitioners, and judges, public interest groups and government agencies. Two legal roundtables in Sydney and London were also conducted.

ALRC President, Professor Rosalind Croucher thanked Professor McDonald for her work on this complex Inquiry. “The ALRC had a very tight timeframe of ten months to complete this Report, and the quality of the work produced is a great credit to Commissioner McDonald and her team. I want to take this opportunity to thank all those who contributed their time and expertise to this Inquiry. Wide reaching consultation and engagement is a benchmark of the ALRC’s work and contributes in a fundamental way to the quality of our recommendations. I consider that this Report will provide a significant contribution to the understanding of the law in relation to privacy and its sophisticated analysis will play a distinct role in the development of the common law and statutory protections of privacy.”

The Report and a Summary Report is available to freely download or purchase in hard copy from the ALRC website. The Report is also freely available as an ebook.

ALRC reports and publications: https://www.alrc.gov.au/publications

Media contact: Marie-Claire Muir (02) 8238 6305, web@alrc.gov.au

Today our Final Report, Serious Invasions of Privacy in the Digital Era (Report 123) was tabled in Parliament. It is now publicly available.

The Report and a Summary Report is available to freely download or purchase in hard copy from the ALRC website. The Report is also freely available as an ebook.

ALRC recommendations do not automatically become law. The Australian Government decides whether to implement the recommendations, in whole or in part, and there is no set time frame in which the Government is required to respond.

This is the final enews for this Inquiry. We provide updates about implementation of recommendations through the ALRC Brief.

​Thank you, once again, to everyone who has participated in this Inquiry.

Issue 4 | 31 March 2014.  View original format.

Less than 2 weeks till submissions close!

Do you have views on how Australian privacy laws should be formulated? The ALRC has been asked to design a right to sue for invasion of privacy, and welcomes your views on a range of proposals and questions. When should public interest trump privacy? Should you be able to record a private conversation without permission? New Zealand, Canada, the United Kingdom and other countries have all developed legal protection of privacy, with Australia still to follow. This is a chance to influence the future direction of our laws.

We’d like to remind all our stakeholders that submissions in response to the Discussion Paper are due within 2 weeks. We are keen to get as much input as possible, so please use the online form or email your submission (in Word format) to us by Monday 12 May. We are working to an extremely short timeline and will not be able to accept late submissions. Our Final Report is due to the Attorney-General on 30 June.

We will publish public submissions as they are received and processed. You can view them on our website.

Consultations

The team has been busy consulting with stakeholders from Melbourne, South Australia, Sydney and Canberra and earlier this month held a legal roundtable at the Federal Court to discuss some of key issues in the DP with a particular focus on the proposed Statutory Cause of Action.  The final Advisory Committee meeting for the Inquiry will be held in mid-May. The ALRC would like to thank all our consultees for the time they have taken to meet with the ALRC and their considered and thoughtful contributions to our research. 

Treading a fine line: Balancing privacy and public interest in law reform

Earlier this month, Professor Barbara McDonald, Commissioner leading the Inquiry, wrote an article that was published in the Gazette of Law And Journalism and the International Forum for Responsible Media Blog.  It provides an overview of the Discussion Paper and outlines the thinking behind the proposal for a new statutory tort of privacy.

Commissioner McDonald has also been interviewed by ABC radio and appeared on the ABC’s The Drum.

 

Issue 4 | 31 March 2014.  View original format.

Discussion Paper released!

We are pleased to announce the release of the Discussion Paper for this Inquiry, Serious Invasions of Privacy in the Digital Era (DP 80).  

The Discussion Paper provides a detailed account of ALRC research so far, and includes 48 proposals and a number of questions for people to consider and provide feedback on. The ALRC is proposing a model for a new statutory cause of action for serious invasions of privacy to be included in a new Commonwealth Act, and also is putting forward other alternative proposals to strengthen privacy protection.

The Discussion Paper is available in HTML, PDF, and as an ebook.

Call for submissions

We invite individuals and organisations to contribute to the law reform process by making submissions in response to the Discussion Paper.  It is helpful if comments address specific proposals and questions, however we also welcome feedback on background material and analysis.

The closing date for submissions is Monday, 12 May 2014. Due to the tight timeline, the ALRC will not be accepting late submissions.

We prefer to receive submissions via the online form on the ALRC website, but also accept submissions by post and email. Please send any pre-prepared submissions in Word or RTF format.

The Australian Law Reform Commission (ALRC) today released a Discussion Paper, Serious Invasions of Privacy in the Digital Era (DP 80, 2014). The Terms of Reference for this Inquiry ask the ALRC to consider the detailed legal design of a statutory cause of action and, in addition, other innovative ways the law might prevent or redress serious invasions of privacy.

The ALRC is seeking feedback from the community on 47 proposals for reform outlined in the Discussion Paper including a new Commonwealth Act that would provide for a statutory cause of action for serious invasions of privacy.

ALRC Commissioner for the Inquiry, Professor Barbara McDonald, said “Privacy is fundamental to enabling individuals to live dignified, fulfilling, safe and autonomous lives. It underpins many other freedoms of the individual, but it is a right that must be balanced with other fundamental values such as freedom of expression and with other aspects of modern society from which we all benefit. The design of a new cause of action reflects the balancing of these competing interests in carving out a level of protection of privacy that would see Australia meet its commitment to international norms/standards.

New technologies are constantly adding new ways to collect and use information about people’s activities, and to intrude into someone’s private life, challenging the usefulness of some existing laws. The ALRC proposals reflect the need to provide people across all of Australia with the same level of protection for their privacy and competing freedoms.” 

The ALRC invites individuals and organisations to make submissions in response to the proposals contained in the Discussion Paper, or to any of the research, argument and analysis provided.  This community input will help inform the development of final recommendations for reform that will be contained in our Final Report, due to be delivered to the Attorney-General by 30 June 2014.

The Discussion Paper is available free of charge from the ALRC website www.alrc.gov.au/publications/serious-invasions-privacy-dp-80 and is also available as an ebook. The ALRC prefers submissions via the ALRC online submission form: www.alrc.gov.au/content/privacy-subs-DP80. Written submissions can be posted to the Executive Director, ALRC, GPO Box 3708, Sydney NSW 2001 or emailed to privacy@alrc.gov.au.

Closing date for submissions is Monday 12 May 2014. Due to the very tight timeframe late submissions cannot be accepted.

For more information about the ALRC Inquiry, go to www.alrc.gov.au/inquiry/serious-invasions-of-privacy/. To keep up to date with the Inquiry, subscribe to the Inquiry enews or follow #PrivRev or @AusLawReform on Twitter.

Issue 3 | 6 November 2013.  View original format.

Reminder: Submissions due Monday!

The submission period has flown by! We want to remind you that submissions are due on 11 November.

During this time we’ve been carrying out consultations with a range of government organisations, media outlets, social media companies, NGOs and special interest groups in Melbourne, Canberra and Sydney. We’ve been receiving really useful information and feedback about the Issues Paper that will be valuable to us as we embark on the next phase of the Inquiry, reading submissions and starting work on the Discussion Paper.

Publications of submissions

Public submissions will be made available on the ALRC website. Please be aware that we need to read and process each submission prior to putting them on the website, so publication will not be immediate. The page will be updated in stages.

View public submissions >>

Online discussion

The online discussion board will remain open for a few more weeks. We have added a new question to the board that we are keen to get feedback on.

The Australian Law Reform Commission (ALRC) today released the Issues Paper, Serious Invasions of Privacy in the Digital Era (ALRC Issues Paper 43, 2013), to begin the consultation process for its Inquiry. 

The Terms of Reference for this Inquiry ask the ALRC to consider the detailed legal design of a statutory cause of action, and in addition, other innovative ways the law might prevent or redress serious invasions of privacy.

ALRC Commissioner for the Inquiry, Professor Barbara McDonald, said “Although there has been significant privacy reform in recent years, there are still gaps in the legal protection of privacy. The digital era has created further challenges for the law, as, every day, we learn about new technologies for the tracking or surveillance of others and about new ways in which organisations and individuals may use and communicate all sorts of private information online.  The task of designing a civil action to allow people to sue for serious invasion of privacy requires a careful balancing of legitimate interests in privacy with other matters of public interest including freedom of speech and expression, media freedom to inform and investigate, the effective delivery of services including healthcare, and the promotion of a vibrant and prosperous national economy.”

Key considerations for the ALRC include ensuring that any new protection would be compatible with existing privacy laws and regulation and that any proposed legislation is adaptable to future technological changes, but not so vague as to cause uncertainty.

The Issues Paper builds on work previously undertaken by the ALRC in 2008 and the Department of Prime Minister and Cabinet in 2011, and the recent work of both the NSW and Victorian Law Reform Commissions. It asks for submissions not just on issues relating to a stand-alone cause of action but also about alternative ways that existing laws could be supplemented or amended to provide more and appropriate protection for privacy in the digital era.

Privacy law affects not just government, big business and the media. It affects a range of occupations and activities in all kinds of social contexts. It has the potential to affect everyone. The ALRC invites individuals and organisations to make submissions in response to the questions contained in the Issues Paper, or to any of the background material and analysis provided.  This community input will help inform the development of draft recommendations for reform to be released in a Discussion Paper due at the end of February 2014.

The Issues Paper is available free of charge from the ALRC website <www.alrc.gov.au> and is also available as an ebook. The ALRC prefers submissions via the ALRC online submission form. Written submissions can be posted to the Executive Director, ALRC, GPO Box 3708 Sydney NSW 2001 or emailed to info@alrc.gov.au.

Closing date for submissions is Monday 11 November 2013.

For more information about the ALRC inquiry go to www.alrc.gov.au/inquiries/invasions-privacy. To keep up to date with the Inquiry, subscribe to the Inquiry e-news or follow #PrivRev or @AusLawReform on Twitter.

View or download the Issues Paper.

The Final Report is due to be delivered to the Attorney-General by 30 June 2014.

Issue 2 | 8 October 2013.  View original format.

Issues Paper released!

We are happy to announce the release of the Issues Paper for this Inquiry, Serious Invasions of Privacy in the Digital Era (IP 43).

IP 43 is the first formal publication of this Inquiry, intended to help frame discussion and encourage public consultation at an early stage. The Issues Paper asks questions not just on issues relating to a stand-alone cause of action—to allow people to sue for a serious invasion of privacy—but also about alternative ways that existing laws could be supplemented or amended to provide appropriate protection for privacy in the digital era.

Community input is very important to us and we ask you to encourage other people in your networks to participate in the Inquiry, whether through the submission process or by taking part in the online discussion forum (see below).

The Issues Paper is available in HTML, PDF, and as an ebook.

Call for submissions

We invite individuals and organisations to contribute to the law reform process by making submissions in response to the Issues Paper.  It is helpful if comments address specific questions in the Issues Paper, however we also welcome feedback on background material and analysis, or other issues relevant to the Terms of Reference.

The closing date for submissions is Monday, 11 November 2013.

We prefer to receive submissions via the online form on the ALRC website, but also accept submissions by post and email. Please send any pre-prepared submissions in Word or RTF format.

Submissions will help inform the development of draft proposals for reform. These will be released in a Discussion Paper, for further comment, at the end of February 2014.

Online discussion forum

Alongside the submission process, the ALRC is hosting an online discussion forum to provide a less formal way for individuals to engage with the Inquiry. We invite people to share and discuss their opinions and ideas about some of the issues we are considering including:

  • What values and interests should be balanced against the protection of privacy?
  • What activities constitute a ‘serious’ invasion of privacy?

Visit the online discussion forum >>

 

Issue 1 | 3 September 2013.  View original format.

Welcome to the Inquiry

Welcome to the first enewsletter for the Invasions of Privacy Inquiry.

I am very honoured to have been asked to lead the Inquiry into how the law should redress serious invasions of privacy in the digital age.  It is an enormous challenge but we are fortunate at the ALRC that our task builds upon much work that has already been done by law reform commissions and others in Australia.  Many of the issues have been considered in previous reports, while the legal protection of privacy has been extensively debated in academic literature, in the legal profession, in the media, in the broader community and in larger inquiries about the role and future of the media.  There has been active and recent judicial development of privacy law by the courts of the United Kingdom and New Zealand which provides valuable guidance on the application of legal principles.

The inquiry is asked by its Terms of Reference to design a statutory cause of action for serious invasions of privacy but it is also asked to consider, more widely, other innovative ways in which the law could prevent or redress serious invasions of privacy.

In Australia, protection of privacy is not a blank legislative slate as there are a number of statutes which help protect privacy, directly and indirectly. Information privacy is regulated by federal and state statutes. There are also common or case law principles which help protect the privacy of individuals indirectly if not by name.

There are however significant gaps in legal protection and it seems that every day we learn about new technologies for the tracking or surveillance of others and about new ways to use and communicate information in all its forms.  Electronic communication, social media, internet search engines and e-commerce deliver countless benefits to society but of course bring risks to those who participate in its various forms and present challenges to the law to keep up.  One of the key considerations for the ALRC is how to ensure that any new protections would sit coherently with existing law but also be appropriate and adaptable to technological change in the future.

A perennial challenge for the law is how to develop privacy protection while also balancing other matters of great public interest and value: freedom of speech and expression, including media freedom to inform and investigate; open justice in our courts and transparent public administration; effective delivery of health and other essential services; protection of the vulnerable in society; the promotion of a vibrant and prosperous national economy and of Australia’s role in the global economy.

Privacy law affects not just government, big business and the media. It affects a range of occupations and activities in all kinds of social contexts. It has the potential to affect everyone, so we look forward to widespread public participation throughout the Inquiry, through consultations and the submission process.

Barbara McDonald,
Lead Commissioner

Timeline and process

Research and consultations are well underway and will continue into mid September. While the exact timing is not fixed at this stage, we expect to release an Issues Paper in late September. The Issues Paper will provide an overview of issues surrounding the inquiry and will ask a series of questions that have arisen through our research and consultations. With the release of the Issues Paper we will call for submissions from the public.

We expect to release a second consultation document, a Discussion Paper, in late February. This will provide a detailed account of ALRC research to that point, including a summary of consultations and submissions, and will set out draft proposals for reform. At that stage we will again call for submissions.

Face to face consultations with key stakeholders will continue throughout the Inquiry, however the main opportunity for community input is through submissions to the Issues and Discussion Papers. We strongly encourage participation through the submission process. We’ll let you know via this enews when submissions open.

You can also keep up to date with the ALRC’s work via our Twitter feed.

• More on the ALRC law reform process

The Australian Law Reform Commission welcomes the appointment by the Federal Attorney-General, the Hon Mark Dreyfus QC MP, of Professor Barbara McDonald as a Commissioner to lead the ALRC’s recently announced Inquiry into Serious Invasions of Privacy in the Digital Era.

Professor McDonald is a Professor of Law at the University of Sydney with experience in tort law, equity, remedies and media law, and has published widely in these areas.  Speaking of her appointment to the ALRC, Professor McDonald said, “I am very honoured to be appointed to the Australian Law Reform Commission to work on this interesting, important and rapidly developing area of the law. I am fortunate that much work has already been done in Australia and overseas in the last few years, and that many people have commented on how the law should develop. There is clearly a community desire for legal protection of personal privacy, but any greater protection must co-exist with other aspects of our society that we value highly: freedom of speech, freedom of the press in its modern forms, effective and proper governance, national security and the openness of social communication that the digital age has allowed.” 

The Terms of Reference for this Inquiry ask the ALRC to review the issue of the prevention of, and remedies for, serious invasions of privacy in the digital era, having regard to a number of factors including: the extent and application of existing privacy statutes; the rapid growth in capabilities and use of information, surveillance and communication technologies; community perceptions of privacy; and relevant international standards and the desirability of consistency in laws affecting national and transnational data flows.

ALRC President Professor Rosalind Croucher stated, “I am delighted to welcome Professor MacDonald to the ALRC. We have been asked to consider innovative ways in which law may reduce serious invasions of privacy in the context of an increasingly pervasive digital environment. And it is not just about a statutory cause of action—something the ALRC recommended in our Privacy Report in 2008—but other appropriate legal remedies to redress serious invasions of privacy. Most importantly we are to consider the necessity of balancing the value of privacy with other fundamental values including freedom of expression and open justice. With Professor MacDonald’s background in litigation, tort and media law, she will bring a wealth of experience and knowledge to our deliberations.”

The ALRC expects to release a first consultation paper for this Inquiry towards the end of September. The ALRC must provide its final report to the Attorney-General by 30 June 2014.

Further information about the ALRC’s inquiry work can be found at www.alrc.gov.au/inquiries.

Subscribe to the Privacy Inquiry on the ALRC website.