Principle 2: There is a public interest in protecting privacy

2.16 While privacy must sometimes be set aside for broader public interests, privacy itself is also a vital public interest. The public interest does not simply comprise matters in which the public as a whole has a communal interest, such as the proper administration of government or the proper administration of justice. Rather, there is also a public interest in protecting and enforcing private freedoms, rights and interests.[26] In Plenty v Dillon, Gaudron and McHugh JJ said:

If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights.[27]

2.17 Contractual and equitable obligations of confidence also have public interest justifications.[28] In the Spycatcher case, Lord Goff noted that

the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law [29]

2.18 Privacy, like confidentiality, underpins other important individual freedoms. Privacy and the ability to speak freely without fear of disclosure is important for social order and public health, private wellbeing, and the achievement of many social ideals and objectives. Without privacy and confidentiality, a person may feel unsafe or unable to speak freely and honestly about important private matters, such as private sexual or medical matters.

2.19 There is a public interest in the security of confidential information about an individual’s financial and commercial interests. There is, for example, a public interest in the benefits that online trade and commerce can offer. Respecting privacy helps establish consumer trust in these services. The preamble to the Asia-Pacific Economic Cooperation Privacy Framework states that balancing and promoting effective information privacy protection and the free flow of information is ‘a key part of efforts to improve consumer confidence and ensure the growth of electronic commerce’.[30]

2.20 Protecting privacy also has an important role to play in protecting and promoting free speech—another vital public interest. Professor Eric Barendt has written:

One value of privacy, and a reason why it is recognised as a constitutional or legal right, is that it gives individuals the space to develop their own identity by themselves, and in communication and cooperation with friends and lovers, free from observation and interference by Big Brother or even by a liberal democratic state. Some privacy is essential to enable us to read, contemplate and formulate thoughts, and some confidentiality and security is similarly necessary to exchange ideas with friends and colleagues.[31]

2.21 Although privacy has been said to lie at the heart of liberty, and will often support other fundamental rights and freedoms, sometimes it must be balanced with other important interests.