find the latest legal job
Corporate/Commercial Lawyers (2-5 years PAE)
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Specialist commercial law firm · Long-term career progression
View details
Graduate Lawyer / Up to 1.5 yr PAE Lawyer
Category: Personal Injury Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Mentoring Opportunity in Regional QLD · Personal Injury Law
View details
Corporate and Commercial Partner
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Full time · Join a leading Adelaide commercial law firm
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Sydney NSW
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Melbourne VIC
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
Invasion of privacy actions get mixed reception

Invasion of privacy actions get mixed reception

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…

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

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Invasion of privacy actions get mixed reception
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Dec 11 2017
Warm welcome for new district court judges
Three practitioners who were appointed as district court judges in WA have been congratulated by ...
Lawyers welcome same-sex marriage reform
Dec 11 2017
Lawyers welcome same-sex marriage reform
Australian lawyers have welcomed the recent legalisation of same-sex marriage, after a prolonged nat...
Senate disallows double standards for temporary visa holders
Dec 8 2017
Senate disallows double standards for temporary visa holders
Lawyers have welcomed the Senate’s rejection of regulations imposing strict penalties on temporary...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...