Why we need a legislated right of privacy

Michael Pearce SC, 13 August 2008

NEW technologies and the complexity of modern society have made great inroads into the privacy we once enjoyed. These developments are largely irreversible and will only continue apace. We should, however, try to ensure that they occur in a legal environment that preserves as much privacy as possible. A vital element of this is a legal right of privacy, writes Liberty Vice-President Michael Pearce SC.

Privacy can be thought of as denoting that sphere of a person’s life which the person controls completely, to the exclusion of others. What we keep private is a matter of personal choice. The key thing is to have that choice. The choice can never be absolute. You can be compelled to reveal evidence of a crime, for example. However, in a free and democratic society there is a wide range of choice about what may be kept private.

Since humans are social animals, few are entirely private. In a pluralist society like Australia people enjoy privacy in different ways and to varying degrees. There are also variations between modern democratic societies. The “New World” countries like Australia and the United States tend to place greater store by privacy than most European countries. This reflects different cultural tendencies to individualism and collectivism. But a common feature of all such societies is the recognition that all are entitled to a private life and to a wide range of choice about what is kept private.

By contrast, the control exercised by totalitarian and authoritarian states is inconsistent with personal privacy. They deny any right to choose to keep things private and permit the organs of the state to reach into the deepest recesses of personal lives. They also rely heavily on the willingness of people to inform on their fellow citizens.

The dismantling of East Germany revealed the pervasiveness of informing in that state, as poignantly depicted in the film The Lives of Others. The East German Stasi was almost obsessive in its intrusions into personal lives. It even had a department which collected smells! Most of the great human rights instruments marking out the freedoms of democratic societies include a right of privacy: see, e.g. art 12 of the Universal Declaration of Rights; art 17 of the International Covenant on Civil and Political Rights; art 8 of the EU Convention for the Protection of Human Rights and Fundamental Freedoms. The Victorian Charter of Human Rights and Responsibilities in s 13 recognises a right of privacy.

But the Charter gives only limited legal recognition to this right. It merely requires courts to interpret other legislation in a manner consistent with the right and requires public officials to act in accordance with it. There is no actionable right of privacy under Australian law, i.e a right to seek relief from someone who has infringed your privacy.

There is a patchwork of other laws in Australia which require people to deal properly with personal information but none of them gives any redress where personal information is misused. Enter the Australian Law Reform Commission (ALRC) and its recent report For Your Information recommending that the Commonwealth Parliament enact a general right of privacy. The terms of the proposed right are very limited, requiring a “serious invasion of privacy” which is “highly offensive”, resulted from an “intentional or reckless act” and for which numerous defences would be available.

Nevertheless the nay-sayers have been quick to condemn the proposal. Chris Merrit (“Real news will be at risk”, The Australian, 12 August 2008) uses the proposal as another pretext to condemn activist judges. Ironically, though, if the legislature does not act on this important issue that will only vacate the field to judges. Another, Peter Bartlett (“Overkill in defence of privacy”, The Age, 13 August 2008) argues that a right of privacy should be resisted mainly because it would prevent the press from reporting celebrity gossip. He suggested that nothing had changed since 1983 to justify a departure from the ALRC’s recommendation of that year against a legal right of privacy. Where has he been?

The technological and other innovations which have encroached on privacy in the last 25 years are too numerous to list exhaustively. They include:?the internet, with its capacity to broadcast personal information instantaneously around the world, its spyware to snoop on users and its permanent social networking sites; mobile phones, with their GPS systems that can now track your movements, even when you are not using your phone; Smartcard technology that records your movements (through public transport, toll roads and credit and debit card purchases), profiles of your spending habits and your health details; the spread of CCTV in public and private places; anti-money laundering legislation which swept away banker-customer confidentiality and now compels a range of people from bankers to solicitors to report “suspicious” activities of their clients to the government; mandatory reporting legislation which requires health care and other professionals to report suspicions of abuse of various kinds to the government; and copying and scanning technology which enables nightclub bouncers and taxi drivers to make permanent records of the personal details of their customers.

Nobody doubts that these innovations have brought many benefits and serve many useful purposes. But they have cut large inroads into personal privacy and created vast databases of personal information. Strict regimes for the protection of these databases have not managed to defeat human inquisitiveness, leading to a number of serious breaches of privacy in Australia and overseas. In the aftermath of one such breach in the United Kingdom, one of that country’s naysayers, the motoring journalist Jeremy Clarkson, derided the alarm expressed about the disclosure of personal bank account details. He published his own bank account details and was then embarrassed when a hacker accessed his account and transferred £500 to a charity!

Clarkson had the sense and good grace to admit he was wrong to be blasé about privacy. Let us hope the nay-sayers in Australia can learn the same lesson but less painfully. They should recognise the many and far-reaching intrusions into privacy wrought by recent technological and other innovations. They should acknowledge the need now to provide some legal redress for serious breaches of privacy, even if it means less celebrity gossip in the press!

Such a right will no more prevent invasions of privacy than the law of negligence prevents car accidents. But it should serve to reduce them and to provide legal redress in cases of serious personal harm. Just as the law of negligence developed in response to changing technology and social conditions of the early 20th century, a similar legal development is needed now in the early 21st century.

It is unlikely, however, that tort law can develop in Australia to supply this right. If it did, people like Chris Merrit would only berate the activist judges responsible for it. A legislative response is therefore the best solution. And so the ALRC’s recommendation deserves serious consideration and support. The self-interested complaints of media organisations should not drown out the important policy issues behind this proposed reform.