Businesses may need to tighten their procedures in order to
comply with a stricter privacy regime following the recent British
News of the World phone-hacking scandal and subsequent public
outrage. The Australian government was quick to respond to the
scandal by hinting at possible privacy law reform. Changes to
privacy law would bring Australia in line with international
standards, and may give Australians the express right to sue over
significant breaches of personal privacy.
This is not the first time this issue has been on the table. It
follows the Australian Law Reform Commission's
(ALRC) 2008 examination of Australian privacy
laws.¹ The report, which comprised of 2,700 pages and 295
recommendations, looked at protecting privacy from all sources. The
recommendations included the introduction of a new right to
personal privacy, a proposal that has found legislative expression
in jurisdictions abroad since the 1970s.
There is a concern that if this "tort of invasion of
privacy" is developed by the common law courts (rather than
being introduced by legislation), it could result in piecemeal and
fragmented protection that is difficult to assess. The current
patchwork of laws in Australia does not give redress of the kind
proposed by the ALRC. Privacy Minister Brendon O'Connor has
asserted that with no general right to privacy, there is no
certainty for anyone wanting to sue for an invasion of their
privacy. He further said that the government will seek the views of
the public on introducing this statutory right in Australia.
The ALRC report recommended a general cause of action for
invasion of personal privacy, supplemented by a non-exhaustive list
of the circumstances that could give rise to the cause of action,
indicating that this would be useful in guiding courts as to the
scope of the action.
Whatever the model of reform, change seems more imminent now
than it has previously. In August 2009, a year after receiving the
ALRC report, the government announced that it would implement many
of the proposed recommendations, but to no avail. In the wake of
developments in technology (in particular social networking, mobile
media and other online innovation) and following a barrage of
serious privacy and data security breaches, the government's
offer of a public consultation in a forthcoming issues paper should
be taken seriously.
The recent phone hacking scandal that prompted the announcements
of Mr O'Conner has certainly placed the issue back in the
spotlight and it may not be long before all Australians have a
formal right to personal privacy.
We will keep you updated on the movement towards the
introduction of this right to privacy.
Contributing author: Darryl Slabe, Graduate
¹Australian Law Reform Commission, "For Your
Information: Australian Privacy Law and Practice" ALRC
Report 108 (2008).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Businesses that rely on email or SMS for marketing purposes need to be aware of, and comply with, the Spam Act 2003.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).