Principle 1: Privacy is a fundamental value worthy of legal protection

2.6 Privacy is important to enable individuals to live a dignified, fulfilling, safe and autonomous life. It is fundamental to our understanding and appreciation of personal identity and freedom.[2] Privacy underpins:

  • meaningful and satisfying interpersonal relationships, including intimate and family relationships;

  • freedom of speech, thought and self-expression;

  • freedom of movement and association;

  • engagement in the democratic process;

  • freedom to engage in secure financial transactions;

  • freedom to pursue intellectual, cultural, artistic, property and physical interests; and

  • freedom from undue interference or harm by others.

2.7 The right to privacy is recognised as a fundamental human right in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and other international instruments and treaties.[3] Article 17 of the ICCPR, to which Australia is a signatory, provides:

1. No one shall be subjected to arbitrary or unlawful interference 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.[4]

2.8 One challenge which arises when determining the boundaries for greater privacy protection is drawing the difficult distinction between the public and the private spheres. In ABC v Lenah Game Meats, Gleeson CJ stated that

There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private.[5]

2.9 There is no doubt that privacy is a complex concept, difficult to define at a conceptual level.[6]It has even been said to be dogged by a ‘lack of precision’[7] and possibly ‘more akin to a ‘bundle of rights’.[8] However, privacy is not less valuable or deserving of legal protection simply because it is hard to define. The New South Wales Law Reform Commission said that to suggest that privacy is impossible to protect because it cannot be precisely defined is to ‘succumb to what Lord Reid once described as “the perennial fallacy that because something cannot be cut and dried or lightly weighed or measured therefore it does not exist”’.[9]

2.10 In 1890, Professors Samuel Warren and Louis Brandeis famously described privacy as the ‘right to be let alone’.[10] In the United States (US), the development of privacy is also closely aligned with protection of autonomy,[11] and privacy has been understood to include the right to make choices and exercise personal liberties.[12]

2.11 There is debate about whether privacy should be expressed as a value, a right or an interest. The Office of the Australian Information Commissioner (OAIC) argued that privacy should be reframed as a right.[13] In ABC v Lenah Games Meats, Gleeson CJ drew a distinction between legal ‘rights’ and ‘legal interests’, suggesting that

talk of ‘rights’ may be question-begging, especially in a legal system which has no counterpart to the First Amendment to the United States Constitution or to the Human Rights Act 1998 of the United Kingdom. The categories that have been developed in the United States for the purpose of giving greater specificity to the kinds of interest protected by a ‘right to privacy’ illustrate the problem.[14]

2.12 Jurisprudence from the European Court of Human Rights has developed a broad understanding of privacy in the context of art 8 of the European Convention on Human Rights. Article 8 has been interpreted to protect an individual’s correspondence, including through modern communication techniques such as email,[15] physical integrity,[16] home,[17] identity,[18] personal autonomy[19] and personal development.[20]

2.13 Many stakeholders stressed the importance of privacy to a person’s autonomy and rights of self-determination.[21] The Law Institute of Victoria, for example, noted that ‘the protection of an individual’s privacy is fundamental to their human dignity and is central to many other human rights such as the right of freedom of association, movement and expression’.[22]

2.14 Privacy also gives individuals freedom to pursue cultural interests free from undue interference from others. This freedom may be particularly important for some ethnic, religious and cultural groups, such as Aboriginal and Torres Strait Islander people, who have particular cultural identity, knowledge and customs that bear on the privacy interests of individuals within the group.[23]

2.15 Some representative groups stressed the importance of a right to privacy for protecting vulnerable people in the community.[24] Associate Professor Moira Paterson emphasised the potential impact of surveillance on vulnerable people who may rely on public places as social, living and cultural spaces.[25] Protecting privacy can play an important role in ensuring personal safety and freedom from harassment.