Speaking at Henry Davis York in Sydney last night (6 September), Pilgrim cited personalities as diverse as Facebook founder Mark Zuckerberg and former Governor-General Sir Zelman Cowen in a wide-ranging speech focusing on how to best provide and enforce privacy protections for individuals in a time when so much information can be easily disseminated via the internet and social media.

"Why, in 2011, are we now looking at the potential for the introduction of a statutory cause of action to be enacted through the Federal Parliament?" asked Pilgrim. "Why, on two occasions recently, has Facebook announced changes to its privacy settings in response to its users' concerns?"

In 2008 the Australian Law Reform Commission (ALRC) recommended 295 amendments to the Privacy Act, with many of those still in the process of being implemented. One of the proposed recommendations is to provide a statutory cause of action for a serious breach of privacy. Under the current Act, Pilgrim is unable to impose penalties for breaches when he has launched an investigation.

"The Government has indicated that it will introduce new laws to strengthen the powers of the Privacy Commissioner," he said. "Under the current Privacy Act, I am unable to impose a penalty on an organisation or an agency following an investigation on our own motion, where I haven't received a case from the individual first."

Pilgrim gave the example of an investigation he launched into Vodafone after media reports that the company had breached provisions in the Privacy Act by making customer information available on the internet. Even though he found that Vodafone did not have adequate security measures in place to protect the personal information of customers, he was not able to impose a penalty on the telecommunications giant.

"Additional powers for the Privacy Commissioner will provide added credibility for enforcement of privacy law, reinforce the significance of privacy compliance and give everyone an even greater incentive to take privacy more seriously," he said.

Privacy vs. the right to know

While Pilgrim acknowledged the rights of individuals to have privacy protections, he said this needed to be balanced by concerns such as the public's right to know certain information and concerns about individual freedoms.

"Going back to the statutory cause of action, I stress here, as I have done in a number of interviews on the subject, that the right to privacy is not absolute," said Pilgrim. "It should always be balanced with other important human rights and social interests, and one of these is freedom of expression."

"The public interest in continuing to allow the public to be informed about matters of public concern is an important consideration to balance against the right to privacy."

At present, journalism is exempt from the operation of the Privacy Act, provided members of the profession meet certain requirements, including being publicly committed to standards that deal with privacy.

The ALRC recommended that journalism keep its exempt status, but expressed concerns about the lack of strong enforcement mechanisms in some media sectors. This has only been exacerbated recently by the News of the World phone hacking scandal, which Pilgrim said had sparked a growing interest in privacy.

"The ALRC noted that self-regulatory mechanisms do not provide the complete answer to the task of balancing competing public interests in privacy and freedom of expression," he said.

Pilgrim acknowledged competing points of view in this area, such as concerns expressed by the ALRC that the lack of the definition of the term "journalism" and the "vigorous" campaigning of media organisations against the application of a statutory cause of action to acts and practices that fall within the journalism exemption. Pilgrim said these issues will remain subjects for discussion as the reform process progresses.

"Privacy is about what we think, what we believe and value, what we want and what we want to do," he said in concluding. "It is also about having the greatest ability to control who gets to know these things about us. But it can't be an absolute in the society in which we live - and in that sense, privacy law reform is about trying to find the balance."