Access to Telecommunications Data in Civil Proceedings

Liberty Victoria

In its submission to the inquiry by the Joint Committee on Intelligence and Security into the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 the councils for civil liberties across Australia (CCLS) submitted that the mass retention of telecommunications data was a major intrusion into the right to privacy of all citizens, including those who are not suspected of any participation in unlawful activity. Moreover, the regime proposed in the Bill, which now has become law, does not limit access to telecommunications data to agencies investigating serious contraventions of the law. For the reasons set out in the submission the CCLS opposed the data retention regime proposed in the Bill.

Liberty continues to be of the view that the data retention regime under the Telecommunications (Interception and Access) Act 1979 is a disproportionate limitation on the privacy of the individual.  However, having said that, the question regarding access to telecommunication data by private litigants raises different policy considerations than those set out in the CCLS submission to the Joint Committee. 

In this Access to Telecommunications Data in Civil Proceedings submission, Liberty Victoria has submitted that from a human rights perspective it is necessary to draw a clear distinction between the use of retained telecommunications data by the State or public authorities and the use of such data in the context of civil litigation.  The use of telecommunications data in civil litigation is not necessarily antithetical to the provisions of the European Convention on Human Rights as often the right that a private individual seeks to enforce in a civil court, such as the right to property, is also a right that is protected by the European Convention on Human Rights. If the right to the protection of the property of one party comes in conflict with the right to privacy of another such conflict must be resolved by striking a fair balance between the two competing interests. 

Therefore Liberty would support a legal framework within which civil litigants have access to retained telecommunications data only by an order of court.  Such access should be available irrespective of whether the data is retained for business purposed or in order to comply with the service provider's data retention obligations.  Any application for such access should be on notice to the individual or legal entity whose data is the subject of the application.  Such a framework will allow courts to do justice between the parties and make appropriate orders to protect the confidentiality and privacy of those whose data may be subject to disclosure

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