Thursday, 9 July 2009

Statutory right of privacy?

Barrister Peter A Clarke blogs at Illegitimi non carborundum (which roughly translates as 'don't let the bastards wear you down').

His latest post raises the prospect of Australian law creating an enforceable right of privacy.

I mentioned a few weeks ago that Australian law has so far been reluctant to embrace a tort of privacy.

The Victoria Law Reform Commission was asked to look at photographs taken without consent as part of its inquiry into surveillance in public places (see my earlier post) but that issue was later removed from its terms of reference.

Peter's post referred to the Australia Law Reform Commission report into privacy law and practice and its proposal for a statutory right to privacy.

He also mentioned a Victorian Court of Appeal decision that suggests a remedy for conduct such as images of consensual sex placed on the internet by one partner, without the other's consent. It's not always clear if the criminal law covers such acts, but Giller v Procopets (2008) 40 Fam LR 378; [2008] VSCA 236 suggests there is an equitable remedy for breach of confidence.

Though it's not a remedy available in a summary court, it does at least raise the possibility of a legal remedy for people who have their privacy breached in this way.


Jeremy Gans said...

Victoria already has a statutory right to privacy in the Charter of Human Rights and Responsibilities: s38 renders it unlawful for a public authority to act in a way that is incompatible with (amongst other things) s13(a), which bars unlawful or arbitrary interferences in privacy.

The right only applies to behaviour by Victorian public authorities, but that includes bodies like Victoria Police, all government and statutory entities, and a variety of private entities who exercise public functions on behalf of Victoria. Other downsides include defences for where another law made the breach the only reasonable choic, or the authority's acts were private, or pursuant to some religious imperative. Also, the remedy depend on whatever remedies are available for unlawfulness under non-Charter law...

Kyle said...

You're right of course Jeremy. I hadn't even considered the provision in the Charter.

But, as you say, it only applies to public authorities as defined.

I think the benefit that might occur from a private right of action is that there would be a remedy for people who suffer a breach of trust or privacy from other individuals. Especially as it seems the criminal law is struggling to keep pace with technology and can't help in all circumstances. (And of course there's a net-widening issue that always accompanies the prospect of newly criminalising conduct.)

Kratoklastes said...

Why do people constantly refer to the 'creation' (or worse, 'granting') of a RIGHT?

Rights exist ex nihilo - their PROTECTION (or remedies for infringement) happens (or is supposed to happen) by statute.

If a right can be 'created' by the State or its apparatchiks, it can likewise be abolished... and is therefore as transient as the whim of the parasite classes (first and foremost, politicians - but really anybody who draws their wage from the tax take, since they do not supply services to a market at market prices).

I have read HCA (and SCotUS) judgements that refer to this or that right being 'granted' by the Constitution (ours or the US one) - obviously Upton Sinclair's aphorism obtains, since SCA and SCotUS judges' livelihoods depend on them refusing to understand that a right is something that is not dispensed by their paymasters.

But you folks don't have the same excuse.

Language matters: if we have well educated legal professionals going around babbling about how the parasite classes 'grant' us rights, then we are doing half their job for them (their job is to force us to comply so that they can mulct us and pass the proceeds to their cronies).