Submission to the Department of Prime Minister and Cabinet 2 November 2011



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The Ripening of the Fruit

Privacy is a key policy issue facing our legal system.38 There is an overwhelming need for protection of personal privacy. The exigencies of modern day living, our media-driven society, the connectedness resulting from the forces of globalisation and the advent of social networking have coalesced to create a world where there appears to be only one domain – the public domain. The News of the World phone-hacking scandal should represent the last remaining sensationalist disclosure39 to spark the privacy debate in Australia. It is time to reform the law.

A decade has elapsed since Justice Callinan advocated for change to the privacy law framework in the landmark case of Australian Broadcasting Commission v Lenah Game Meats (2001) 208 CLR 199 [‘Lenah’]:

Having regard to current conditions in this country, and developments of law in other common law jurisdictions, the time is ripe for consideration whether... the legislatures should be left to determine whether provisions for a remedy for [a tort of invasion of privacy] should be made...40

Is the time still ripe in 2011? Or has the proverbial privacy fruit gone bad with age?

The Prime Minister, Julia Gillard, believes it is picking season. On 21 July 2011, the Prime Minister announced ‘[w]hen people have seen telephones hacked into, when people have seen individuals grieving have to deal with all of this, then I do think that causes them to ask some questions here in our country.’41 A consultation period for privacy reform was launched following this announcement, with Federal Privacy and Freedom of Information Minister Brendan O’Connor explaining that the Government is ‘very serious about having this discussion’ following the News of the World scandal, and that ‘there are two ideals we uphold as a government - freedom of speech, and people’s right to have a private life’.42 In September 2011, the Government released an Issues Paper, confirming this rationale and expressing support for a statutory cause of action for serious invasions of privacy.43

While Lenah left the door open for the common law to develop a cause of action for breach of privacy, a judicial majority is yet to take the bold step44 in developing the action. Moreover, despite the best efforts and recommendations of the Australian and New South Wales Law Reform Commissions, Australia has succumbed to both political inertia and conservatism by refusing to recognise a right to privacy and by failing to provide a statutory cause of action for privacy invasion.

The time is ripe45 for a cause of action for invasions of privacy, and Australian lawmakers must take this step using a legislative framework. This is a logical and desirable step,46 given the current social, political and technological environment. Privacy laws have not kept pace with changes in society. The following discussion analyses two broad concerns underpinning the current debate on privacy reform; the boundless flow of information on the internet, and the underhanded behaviour by media organisations, both of which seriously threaten personal privacy.


    1. The [Anti] Social Network

Each era in human history faces new threats in the battle for privacy. The cause stays the same. It is only the weapons that change. From freedom from government intrusion in the 18th century to phone-hacking and Facebook stalking in the 21st Century, the pendulum constantly swings between the right to privacy and the right to freedom of expression and never quite seems to reach equilibrium. The inability to achieve a comfortable balance between privacy and free speech continues unabatedly.

The explosion of new technology represents an advanced set of weaponry, threatening personal privacy in a way never anticipated. However, it is not just the technology to blame. We are, somewhat, authors of our own demise; our own worst enemy. We’re invading each other’s privacy and our own47 almost every day, particularly by what we expose on the internet. Network sharing sites such as YouTube, Twitter, Flickr and LinkedIn, and social media sites such as MySpace and Facebook, invite us to share our most private and intimate thoughts and feelings, our name, our hometown, our workplace, our marital status and our image. Online services such as Cheaterville allow individuals to post the name, picture and details of others who have been unfaithful in romantic relationships, in order to warn others against engaging in relationships with those individuals.48 The website does not check the accuracy of the allegations, and only provides a comment section so that the identified individuals can respond. Facebook’s Check-In service allows users to post on their page where they are and who they’re with. Google’s new Hangouts and Circle services provide similar features. However, Google claims to allow users to share information with the people that are authorised to access such information:

You share different things with different people. But sharing the right stuff with the right people shouldn’t be a hassle. Circles make it easy to put your friends from Saturday night in one circle, your parents in another, and your boss in a circle by himself, just like real life.49

Almost every era has seen technology increase the flow of information; with the penny press in the 1830s, the telephone in 1876, the snap camera in 1884, radio in 1900s, modern television in the 1950s, the internet in the mid 1990s and smart phones within the last ten years. The Gillard Government’s current commitment to build the National Broadband Network [‘NBN’] means that 93% of Australians will have access to the internet via a high speed fibre network once roll-out of the network is completed,50 and Australia will be among the world’s leading digital economies by 2020.51 Yet the internet poses different challenges than its technological predecessors. It is a developing technology, potentially without limits. In the offline world, people had their fifteen minutes of fame and were forgotten the next day. The internet’s boundless and omnipresent nature means that people’s stories are always accessible. In a matter of milliseconds, that embarrassing thing you did last night is just a Google search away,52 accessible to the entire world, saved as personal chronicles for infinity, and remaining permanent ‘digital baggage’.53

With the click of a button, information can be instantaneously uploaded online and shared with others, whether from a mobile phone, computer, webcam, Ipad or other electronic device. With an increasingly-evolving ecosystem of interconnected networks developing online, the free flow of information has reached enormous levels never before seen by humankind. To illustrate, there are 750 million active users on Facebook, who collectively spend over 700 billion minutes on the site a month.54 Facebook is the second most-visited site in Australia.55 Twitter boasts over 100 million active users.56 Around 3 billion YouTube videos are viewed everyday.57 This represents a phenomenal flow of information globally.

Online information can be a cash-cow for advertisers and online businesses, and also for the social networking sites that provide the information. For instance, when a user ‘likes’ a page on Facebook, such as a certain clothing brand or a confectionary product, Facebook can sell ads to those businesses targeted at the users who like the page. Facebook receives data from advertisers when users visit their sites, even if the user’s profile is set to private. Facebook then sells the user’s endorsement, ‘with no payment other than the continued use of its website’.58 Facebook made $2 billion last year, which was a 157% increase from 2009.59 With one click on an online advertisement, Facebook assumes it to be an endorsement worth sharing. ‘Listen to a music app, and every song will appear in ‘tickers’ of your friends… Go for a run using Nike Plus, an electronic distance calculator, your effort is logged for all to critique. Watch a movie, its title is broadcast to all you know.’60 Guvera, a music-sharing service, provides free music downloads to individuals in exchange for personal information such as their likes and dislikes, which are used by the company’s advertising partners.61 Individuals may therefore be more inclined to provide personal information if they perceive that some tangible benefit will arise from the disclosure.

Critics also argue that Facebook cookies, which are packets of data used to track user behaviour, keep sending information to Facebook even after the user logs out, resulting in ‘silent total surveillance’.62 Facebook bluntly responded to these criticisms: ‘we don’t share information we receive about you with others’.63 However, Facebook’s privacy policy, under the heading ‘how we share information’, provides large exceptions to this rule. Facebook shares users’ information in a range of situations. For example, when it has the user’s permission, a user invites a friend to join, or for advertising and offering services. Significantly, a search engine can gain access to the name and profile picture of a user, and anything else which is set to the ‘Everyone’ setting.64 Such frictionless sharing of information is beyond individual control, unless the user leaves the site.

YouTube and social networking sites have meant that the media also has access to this public and voluntarily-provided information, which has led to the creation of internet sensations, celebrities and scandals. In 2008, Olympic swimmer Stephanie Rice caused controversy over raunchy photographs of her in a police costume on her Facebook page. The photos were removed from Facebook but were then reproduced on the Daily Telegraph’s website, receiving 1.7 million hits in one week.65 In 2009, 19 year old Sydney woman Claire Werbeloff became known as the Chk-Chk-Boom-girl when her eye-witness account of a Kings Cross shooting went viral on YouTube and was later exposed as an elaborate lie. The story was covered by the Australian media, including A Current Affair. She was hounded by the press and turned to a Public Relations agency to handle the attention it caused.66 In March this year, fifteen year old Casey Haynes fought back against a schoolyard bully, with the fight being caught on camera and posted on YouTube,67 which also created a media frenzy. Currently, these individuals have no redress for invasion of their privacy.

On the other hand, online anonymity has proved fatal in a number of cases. In the United States, a thirteen year old girl committed suicide after the mother of one of her school friends purported to be her boyfriend, and then told her that the world would be better off without her.68 This and other situations of cyber-bullying indicate that the law currently offers no effective solution to privacy issues online.

The explosion of online information and interconnectedness therefore necessitates a comprehensive and effective education campaign so that individuals may be informed and warned about the long-term consequences of their behaviour online. A US study has revealed that 20 million Facebook users are under eighteen years of age. Over 7.5 million users are under thirteen,69 which is the stipulated minimum age of users under Facebook’s Statement of Rights and Responsibilities.70 Five million are under 10 years.71 These worrying statistics indicate that young people are placing themselves at risk of dangerous online behaviour such as cyber-bullying, and could be targeted by sexual predators. Furthermore, young people fail to appreciate the implications that online information can have for the future.

These scenarios and studies pose the question, has the free flow of information made us less free?72 The long-term consequences may be dire for people whose personal image or information is found online and spread further by the media. Employment opportunities and personal and family relationships may be adversely affected. An interesting exercise illustrating the extent of availability of this type of information occurred at Fordham University in the United States, where a Law Professor, angered by Justice Scalia’s reluctance to support protection of personal information, set his students the task of collecting as much information about the judge as they could. The students turned in fifteen pages of information, which included his Honour’s home address, telephone number, value of his home, his wife’s personal email address, photos of his grandchildren and even his personal movie and food preferences.73 His Honour’s response was that the project was ‘perfectly legal’ but it showed ‘abominably poor judgment’.74 This type of project illustrates that once information is in the public space, it becomes public property and is therefore beyond individual control.75 The value of individual autonomy is diminished.

However, this paper is not arguing that such technological advances are all negative within contemporary society. The internet provides extraordinary possibilities and limitless advantages for human welfare and collective knowledge. Some technological advancements that might impinge on privacy may in fact facilitate the common good and the public interest, for example the iPhone Application which captures a photo of anyone who tries to unlock a stolen phone and sends it to the nominated email address of the phone’s owner.76 However, there is potential for technology to be abused. For example, in August this year a male Australian Defence Force Academy cadet was charged with indecency and suspended from training after he used his mobile phone to film a female cadet in the shower.77 This paper brings into sharp focus the main challenges and policy issues raised by such technological advancements, which should be addressed by law and education.

Even before the birth of the internet, American writers Warren and Brandeis acknowledged the increasing importance of privacy to the individual in modern day life:

The intensity and complexity of life, attendant upon advancing civilisation, have rendered necessary some retreat from the world, and man [or woman], the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his [or her] privacy, subjected him [or her] to mental pain and distress, far greater than could be inflicted by mere bodily injury.78

In 1976, after the adoption of the ICCPR, the United Nations [‘UN’] recommended that ‘States… adopt legislation, or bring up to date existing legislation, so as to provide protection for the privacy of the individual against invasions by modern technological devices’.79 As the Honourable Justice Michael Kirby noted, the amount of publicly-available personal information is likely to increase rather than decrease: ‘Access to this information is what occasions the contemporary fragility of privacy – a human attribute that has been steadily eroded over the last century’.80 The development of modern technology and communication therefore provide very strong reasons to protect privacy and provide redress for those whose privacy is invaded.


    1. News of the World and the Phone-Hacking Scandal

While we voluntarily reveal personal information everyday in the online realm, there are many situations in modern life where invasions of our privacy are out of our control. The recent behaviour by the now-defunct News of the World sent shockwaves throughout the globe when serious allegations of phone-hacking were made against the newspaper.

Involved in illegal voicemail interception, News of the World engaged in ‘lawbreaking on an industrial scale.’81 Individuals’ private and innermost feelings were essentially ‘bought and sold for commercial gain.’82 Subsequent investigation of the newspaper’s actions revealed that the practice of phone-hacking was widespread within the organisation, and was openly discussed in editorial conferences, until the Editor, Andy Coulson, banned explicit reference to the term.83



News of the World hired private investigators to hack into the phones of not only the Royal family and celebrities, such as Hugh Grant and Scarlett Johansson, but also the phones of private citizens. The voicemails of victims and families of the victims of the 9/11 terrorist attacks in New York were allegedly targeted, which would have likely included ‘harrowing messages from desperate loved ones trying to make contact with their relatives’.84 News of the World was also found to have hacked into the voicemail of murdered school girl from the United Kingdom, Milly Dowler, and allegedly deleted some of Milly’s voicemails, which gave her family hope that she was alive.85 Furthermore, the Murdoch press was recently investigated for hacking into the computers of competitors and for engaging in industrial espionage.86 The case settled out of court for an estimated $500 million.87

Although there has been no evidence to suggest that this sort of behaviour is occurring in Australia, such events ‘put the spotlight on whether there should be a [right to privacy]’,88 and have led to widespread concern in the community.89 The phone-hacking scandal has brought into sharp focus the need for adequate privacy protection in Australia so that this kind of behaviour is discouraged and prevented. Indeed, if an Australian media organisation acted in the same fashion, they would be guilty of an offence under section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth).90 However, looking more broadly and outside the phone-hacking scandal, there are major deficiencies in privacy laws in Australia, particularly where the privacy of individuals are being invaded by the media. The News of the World situation simply sheds light on the need for a closer examination of the gaps and unravelling threads in Australia’s privacy framework.



    1. The Need for Privacy Protection

Privacy provides individual autonomy, emotional security, the sharing of confidences and intimacies, and enhances the ability to reflect on personal values.91 Privacy is integral to an individual’s social and intimate relationships, mental health, employment, freedom and creativity.92

Invasions of privacy can occur in a myriad of ways in contemporary society. The methods by which others can invade privacy will only increase as technology advances. The law must therefore adapt continually to changes and developments in the surrounding environment. Social networking, globalisation and the free flow of information have operated to increase the amount of personal information available in the public domain, and events such as phone-hacking this year have drawn attention to the failure of the law to protect personal privacy and the ease in which privacy can be invaded. Telemarketing, reality TV shows like Big Brother, the Bill Henson photography scandal93 and the prospect of introducing an Australia Card94 also indicate that privacy is a large and topical issue.95 While these situations ‘pose new and difficult issues, they are variations on the same immemorial tensions in the law in Australia: the tension between privacy and free speech, the nature of privacy, [and] the virtues and vices of gossip and shaming.’96

The means used to intrude upon individual privacy will continue to change. The reasons for privacy protection will remain the same. The law, as it stands currently, does not address these concerns.


  1. THE CURRENT PRIVACY LAW FRAMEWORK: AUSTRALIAN AND OVERSEAS APPROACHES

Do humans actually have a right to privacy? If so, where does it come from? What is its scope? How does it rank in comparison to other rights? Legal discourse has not sufficiently addressed these issues. Most privacy advocates simply assume that the right to privacy has a sound foundation.97

    1. The Missing Cause of Action98

Privacy is a multifaceted concept which is currently protected in a piecemeal and patchy fashion, developing at different rates and in different jurisdictions, devoid of an overarching rationale.99 This is visibly evident in Appendix Table 1: Current Legal Protection of Privacy,100 which shows how different components of privacy are currently protected under Australian law. The table illustrates that privacy in general is, at best, protected incidentally. For example, criminal law and tort protect some aspects of territorial privacy101 and bodily privacy.102 Defamation law protects reputation, but only to the extent that the information published is untrue.103 Equity protects information imparted under the obligation of confidence.104 Certain statutes prevent phone-tapping and surveillance without authority.105 While the most highly regulated protection of privacy occurs in the information privacy realm,106 even this statutory scheme is ‘complex, uneven, often overlapping and far from uniform throughout the country’.107

Significantly, there is no general action for breach of privacy in Australia. This creates uncertainty and inconsistency, particularly because the common law is developing at different rates and in different ways across the states and territories. This poses large difficulties for individuals and corporations who need to ‘assess the effect of the law on their operations and to implement appropriate policies to minimise their potential liability’ under the law.108 Furthermore, as exemplified by Table 1 of the Appendix, invasions of privacy by the media or other individuals would only be covered peripherally and partially by the current framework. There is essentially no one-stop-shop for privacy protection. The fabric of the Australian privacy law system is therefore inadequate.

For the reasons examined below, and through evaluation of the approaches used in overseas jurisdictions, this paper argues that a statutory cause of action is the preferred method of protection for privacy. This is also generally supported by the ALRC109 and NSWLRC.110 Extending existing common law or equitable actions is not appropriate for the kind of privacy protection envisaged by this paper. This Chapter examines the inadequacies of those methods.

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