We have learned many things from Jennifer Lawrence, the
latest of which is not to store nude selfies on iCloud. Undoubtedly
the Australian Law Reform Commission's release of its Report
into Serious Invasions of Privacy in the Digital Era (snappy title,
guys) was timed to show support for J-Law and other celebrities
affected by this week's hacking scandal.
The Report advocates a Commonwealth, statutory civil cause of
action for serious invasions of privacy. It picks up on elements of
similar actions in the UK, and aspects of local defamation laws.
The gist is that someone has to deliberately pinch your private
stuff (pun intended), the invasion of privacy has to be serious,
and the public interest in protecting your privacy has to outweigh
any countervailing public interests (which don't mean
"what the public finds interesting").
It's not the first time we've heard calls for a cause of
action along these lines. Historically though, privacy hasn't
been a high priority for the legislature. The alternative is to
wait for the courts to develop a common law action. It's been
over 10 years since the High Court suggested that this should
happen, but only a few minor courts have had a crack at it and
it's been a bit of a non-event.
We would love to see a cause of action for invasion of privacy
in Australia. Aside from the juicy litigation, it just makes sense.
The scope and means for invasions of privacy have expanded
exponentially along with the internet, smart phones and social
media. It's logical and fair that there be recourse for serious
But we're not holding our breath. The Commonwealth
doesn't have enough Constitutional power to give a law like
this full effect. A more annoying but more effective way is for the
States to either enact mirror legislation or give power to the
Our money's on the Government throwing this back in the too
hard basket. Does anyone remember if this was on Tony's list of
promises he wasn't going to break?
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