ARTICLE
28 March 2024

Doxxingr reform: new statutory tort proposed

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Holding Redlich

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Holding Redlich, a national commercial law firm with offices in Melbourne, Canberra, Sydney, Brisbane, and Cairns, delivers tailored solutions with expert legal thinking and industry knowledge, prioritizing client partnerships.
Doxxing refers to the deliberate exposure of private information or personal details, generally online, without consent.
Australia Privacy
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The Australian Government is proposing new provisions to address doxxing as part of its legislative response to the Privacy Act Review. The most significant proposal is the introduction of a statutory tort for serious invasion of privacy, allowing victims to seek compensation from those responsible. Consultation is currently underway to gather the public's view on how to address doxxing.

What is doxxing?

Doxxing, a term derived from 'document dropping', refers to the deliberate exposure of an individual's private information or personal details without their consent, typically carried out online. Doxxing encompasses various forms, including the unmasking of anonymous individuals, divulging contact or location information and revealing sensitive data that may harm an individual's reputation. Recent high profile incidents include a case of mistaken identity in which an Australian teenager was misidentified as the author of racist online comments with significant consequences for her and her family.

Current status

Currently, victims have limited legal options, such as seeking assistance from law enforcement authorities if there are risks of physical harm and where doxxing breaches criminal law. Victims of doxxing can be supported through the relevant Cyberbullying Scheme or Adult Cyber Abuse Scheme. The limitations of the current legal framework have prompted the current consultation and proposed legislation.

Proposed statutory tort for serious invasion of privacy

The creation of a statutory tort for serious invasion of privacy is the most significant proposal subject to the current consultation. In the Australian Government's Response to the Privacy Act Review, the government agreed in principle to the introduction of a statutory tort for serious invasions of privacy, consistent with recommendations by the Australian Law Reform Commission. Under this approach, the invasion of privacy would need to be either a serious intrusion into the seclusion of an individual or a serious misuse of private information. To establish the tort, an individual would need to prove:

  • the privacy invasion was serious
  • they had a reasonable expectation of privacy
  • the invasion of privacy was committed intentionally or recklessly
  • the public interest in privacy outweighs any countervailing public interest.

The creation of the statutory tort would give victims of doxxing the capacity to take court action seeking damages for their loss. Potential impacts of doxxing include identity theft, physical and cyber stalking, relocation costs and damage to personal and professional reputation leading to social and financial disadvantage. The introduction of the tort would mark a significant development in privacy law reform, with potential application beyond doxxing to a range of impacts upon privacy not currently addressed through the criminal law or privacy legislation.

Other reforms to the Privacy Act

The Australian Government also proposes to move forward with other proposals from the Privacy Act Review which would assist in addressing doxxing. These include granting individuals greater control over their personal information by introducing new or stronger rights to access, erase, correct and de-index their personal information. Similarly, proposed legislation will progress proposals which will bring the Privacy Act into the digital age, uplift existing protections and raise awareness regarding obligations for safe handling of personal information.

Next steps

Consultation on the proposed legislative reform on doxxing is open until 28 March 2024. You may have your say by visiting the Australian Government's website here.

If you have any questions about the proposed legislation, please contact a member of our team below.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

ARTICLE
28 March 2024

Doxxingr reform: new statutory tort proposed

Australia Privacy

Contributor

Holding Redlich, a national commercial law firm with offices in Melbourne, Canberra, Sydney, Brisbane, and Cairns, delivers tailored solutions with expert legal thinking and industry knowledge, prioritizing client partnerships.
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