Draft privacy laws proposed by the NSW Law Reform Commission (NSWLRC) have been met by mixed responses from experts who spoke to Lawyers Weekly this week.
The NSWLR has proposed a statutory cause of action for invasion of privacy, which would exist where a person has "a reasonable expectation of privacy" that is not outweighed by a relevant public interest.
University of New South Wales Professor Graham Greenleaf said the proposals are long overdue because Australian courts have failed to develop any tort for invasion of privacy nor extended the law of breach of confidence such as occurred in the UK.
"On the one hand you can say there is a long overdue gap in Australian law that is proposing to be filled and, on the other hand, you can also say there are new technological developments, in particular, and social developments too that make an action like this even more needed now," he said.
"In particular, social networking services [such as] Facebook and the like give ordinary individuals much greater ability than they ever have had in the past to disclose personal information about other people in ways that can be really harmful to them and that is a technological development that the law hasn't had to cope with in the past."
But Sophie Dawson, a partner at Blake Dawson, expressed concern that the NSWLRC had proposed a different test to that of the Australian Law Reform Commission (ALRC).
A two-part test for privacy was recommended by the ALRC which would consider whether something was highly offensive to a reasonable person of ordinary sensibilities, if there was a reasonable expectation of privacy, balanced against the public interest and freedom of information
Dawson said that a single national approach to privacy was highly desirable for consistency reasons.
"Basically, if you've got consistency then it's much easier for people to understand what the law is and it's much easier to enforce the law and that is particularly important. If you think about it, these days everyone is publishing things on Facebook and that is publication throughout Australia and, really, throughout the world, so it's good if the same standards apply in the same places that people are going to read material," she said.
Dawson also said proper debate and careful consideration should be undertaken in relation to the importance of freedom of communication in terms of protecting society against corruption.
"Once you get into a situation where people are really limited in reporting what is going on around them in public places, it limits the ability of people to put two and two together. So [for example] if someone took a photo of a politician who said that they were unavailable for an important appointment and they were actually out shopping, and if someone had taken a photo of the politician shopping, and then published it in the paper or put it on an internet site, it could cause someone to work out that the politician was lying, which would be important when assessing their conduct in public office - it would be relevant," she said.
"That is an example of the very fine balance that has to be made. It's not just simply a matter of more privacy is a good thing."
Greenleaf argued, however, that implementing privacy laws would be beneficial in ensuring people showed more restraint when distributing information about friends or workmates and for when journalists disclosed personal matters about public figures.
"The NSW Law Reforms Commission's recommendations include a lengthy list of factors that a court has to consider before it can find that there has been an invasion of privacy [and] that gives a right of action," he said.
"The list of things [specified] would enable all types of proper public interest factors to be raised [including] the extent to which an individual has a public profile - so they are explicitly indicating that public figures will have less privacy than people who are not public figures," he said.
The NSW Government has yet to indicate a response to the proposed reforms.
- Sarah Sharples