Minutes/Policy Development Committee/Privacy Tort WG/2014-01-28

Attendance

 * David Crafti (Chair)
 * Mozart Olbrycht-Palmer
 * Mark Gibbons
 * Brendan Molloy
 * Mark Walkom

Introductory discussion

 * The main difficulty in trying to define a tort of privacy is in how it can be done without harming freedom of expression and press.
 * The Australian Law Reform Commission (ALRC) does not seem to have come up with what they thought was a perfect solution.
 * We cannot take much guidance from the US without their bill of rights and the history behind it.
 * The ALRC, NSW Law Reform Commission (NSWLRC) and Victorian Law Reform Commission (VLRC) have recommended a dedicated tort of privacy.
 * Will have to read over the proposals and see what has been recommended in detail.

Fair use for privacy

 * Suggestion that we try an approach that's similar to fair use:
 * Take the principle that privacy is by default an exclusive right.
 * Then build exceptions along the lines of fair use.
 * The Courts could take into account whether the intrusion into privacy was reasonable, according to similar points as fair use.
 * Examples of grounds for consideration would be: character and purpose of the intrusion, the nature of the activity/area/etc being intruded into, the extremity of the intrusion.

Government as a victim

 * Include blanket exemptions for Government as a victim, etc.
 * Clarifying that this would prevent the Government from bringing action; the Government would still be liable for breaching privacy under the tort.
 * The Government would retain certain exemptions, such as legitimate law enforcement.

Future proofing

 * Need to consider how tests we develop might be twisted down the line.
 * Future proofing is necessary.

Remedies

 * Measuring remedies is going to be very difficult.
 * The aspect of permanent publication can't be resolved by an injunction.
 * Allowing an intrusion to occur and then penalising it if it is held to be one could be a counter-balance to free speech being infringed.
 * Perhaps treat it like defamation — make it a matter for the courts after publication/infringement.
 * Could perhaps introduce a declaration that is issued before a breach that would increase damages if after the fact a breach was held to happen.
 * Basically a "if you publish this, and it is a breach of privacy, you will have to pay more money."
 * That would arguably be tantamount to an injunction anyway.

Australian Privacy Foundation submission

 * http://www.privacy.org.au/Papers/ALRC-SerPrivInv-131115.pdf

Personal privacy focus

 * Needs to be more focus on personal privacy as opposed to organisational and commercial.
 * Minimise the exclusions for the latter two.
 * What is corporate/commercial privacy?
 * It's not necessarily their privacy, but their impact on personal privacy.
 * Typical case of commercial privacy would be ABC v Lenah Game Meats
 * Activists broke into a processing plant where animals were mistreated.
 * Gave footage to the ABC.
 * An injunction was sought, but denied, because the ABC wasn't involved.
 * The Court declined to create a tort of privacy and ruled on trespass to land solely.
 * Commercial privacy would probably be covered under trade secrets.
 * Trade secrets are the default protection for a lot of corporate activity.
 * General agreement that corporations should be excluded and have no action for breach.
 * Corporate transparency is something the US Pirates have adopted.
 * Natural persons and natural persons only.

Trespass v privacy

 * There is definitely going to be an overlap, but not all trespasses will be intrusions into privacy, and not all privacy intrusions will be trespasses.

Summary

 * No protection for corporations
 * No injunctive relief before a publication
 * Reading:
 * APF Report
 * Chapter 74 of the ALRC Report
 * Aim to lay down a skeleton.
 * Next meeting in two week's time.