Civil Remedies for Invasion of Privacy - Case Study Example

CIVIL REMEDIES FOR INVASION OF PRIVACY (A CASE STUDY) CIVIL REMEDIES FOR INVASION OF PRIVACY PRIVACY Every person has the right to the protection of law against interference or attacks by others with his privacy, family, correspondence, honor and reputation under Article 12 of Universal Declaration of Human Rights, 1948. 1The OECD guidelines were developed by group of government experts with Australian Law Reform Commission. The guidelines envisaged safeguards for individual‘s privacy and prevention of invasion of privacy. The guidelines also intended to promote the free flow of information between member states. Accordingly, the parliament adopted information privacy legislation in the name of Federal Privacy Act 1998 with few modifications of PPIP Act. Australia is one of the signatory to the International Covenant on Civil and Political Rights. The Treaty ensures that domestic legal systems provide adequate protection with privacy. The Common law of Australia did not recognize any enforceable right to personal privacy, though legislation is available at federal and state level protecting the privacy of information. In the case of Australian Broadcasting Corporation V Lenah Game Meats Pvt.Ltd, the High court declared that the common law would develop the recognition of invasion of privacy. The Privacy Act 1988 gives expression that how personal information is collected, used, disclosed, stored and destroyed. 2But the Act is silent about other aspects of privacy i.e. right to enjoyment of home, family life, right to freedom etc. hence the State needs to enact separate legislation to protect privacy and enforce the laws. INVASION OF PRIVACY Invasion of privacy is a legal term and refers public figure’s right violation by media. There need not be physical entry of private person’s property. Generally the civil suit is filed against media who crossed the boarder lines of celebrity or other public figure’s private life. Modern invasion of privacy laws protect the public figures in different ways such as public disclosure of private facts, false light, appropriation, intrusion etc. But the media is protected by the First Amendment .e. right to free speech, ultimately public suffering at large. Hence separate legislation required with respect to privacy since it is civil wrong and there is no direct law. Most countries treat the privacy as right of individuals but not for institutions. And most countries have laws to limit the privacy. The privacy may relate to the person’s property, freedom of speech, income etc. The perceived deficiencies in the common law of Australia forced the right to personal privacy to be given statutory recognition. GROSSE V PURVIS [2003] QDC 151 Strictly speaking, no constitutional right to privacy is available in Australia. But some pieces of legislations with incomplete protections exist. For example ban cameras at Waverley Council. Local law develops it and an indication of legal protection is required for personal privacy of society at a whole. Though various laws available at state level, yet they pertain to criminal laws and not for torts (civil laws). The Privacy Act 1988 and other counter parts Acts do not always afford sufficient legal protection to prevent the invasion of privacy in many circumstances. 3The High Court of Australia also commented that Australians should have common law of right to privacy. In the case of Grosse V Purvis [2003] QDC 151 heard claim for damages based on torts for which the defendant harassed the plaintiff for number of years. And plaintiff accordingly sought damages for invasion of privacy commenting that it is logical and desirable step. DISTINCTION IN TORTS BETWEEN UK AND AUSTRALIA 1. The trespass to the person in UK requires intention of the wrong doer who violates whereas in Australia no need of intention of the wrong doer. Hence in Australia Trespass itself is sufficient to prove it is tort whether intention of wrongdoers is exist or not. It is clearly defined in the case of Williams V Milotin. In UK, intention of wrongdoer is crucial element for such trespass (Case Letang V Cooper) 2. The UK law not permits the action if proper intention is not available for such trespass (tort), but the Australian law allows an action for such trespass if negligence exist, though unintentional act of the wrongdoer. In the case of ABC V Lenah Games Meats, the High court of Australia stated that invasion of privacy is required. The court given an indication such tort may be acceptable. The question of breach of privacy was valid and can be entertained with at least two references such as Grosse V Purvis(2003) QDC 151 and Giller V Prospects (2004). In the former case, the judge Skoien awarded damages for invasion of privacy. In the later case, the court doubted development of law about breach of privacy. LOGICAL AND DESIRABLE (NEWZELAND) Though common law developed, yet enforcement measures are developed by way of necessity. Some of the following indicates that tort of privacy is logical and desirable step and there are outside purview of torts and enforcement is taken by others other than courts. 1. The British Standards Authority framed set of privacy principles and accordingly Broadcasting Act 1989 allows award of damage up to $5000 with penalties for breach of privacy. 2. The Press Council hears complaints about the breach of privacy against the print media. Though Council is voluntary body and statutory basis, yet media organizations supposed to publish the decisions. 3. The Privacy Commissioner hears the complaints of breach of privacy and makes resolutions. Besides, if yet not resolved, the same will be forwarded to Human Rights Review Tribunal for which the damages awarded up to $200,000. 4. But the above bodies will not cover Internet publications, because and they are not bound to Privacy Act. The BSA deals with broadcasters and the Press council deals with print media only. 5. The High Court judges saying more than twenty years with respect to invasion of privacy and should be held for actionable as a tort. 4In the case of Hosking V Runting made ruling that it will be highly offensive if wide publicity is given about privacy. The plaintiff may recover the damages whatever wish and plaintiff go for injunction to stop publication. NEW ZEALAND (Hosking V Runting & Others) The tort of invasion of privacy was recognized in the case of Hosking V Runting (2005) in the court New Zealand. In this case the court confirmed that there was in existence of tort of breach of privacy. It was occurred since the dismissal of appeal made by New Zealand television and radio presenter. Mr.and Mrs Hosking failed to obtain injunction in High court to prevent the publication of photographs of young twin daughters. The law in New Zealand did not recognize tortuous cause of action in privacy. The appeal was heard by full bench of five judges and they delivered four separate judgments, which is unusual. Finally the appeal was unanimously dismissed on the facts that the judgments differed on the existence of tort of breach of privacy in New Zealand. Out of five judges three judges expressed that tort is existed whereas two judges expressed that tort did not exist. The difference between majority and minority is balanced by privacy of human right. The right of freedom should not be in such balanced methods, instead it should be uniform. In New Zealand the individual’s right to privacy is found in the Privacy Act, 1993. But the application of the Act is unclear. The general rule of the Act is that collection of personal information about person would be covered by the Privacy Act. The information includes photograph also. So the colleted information should be disclosed only for the purpose what for it is collected. Hence the disclosure of information should be made for the purpose it collected. The role of Privacy Commissioner is to receive written complaints from the public in case breach of privacy. However the commissioner has option to disregard or to investigate the complaint to assess the availability of breach of privacy. The breach of privacy may be related to any of the following: Any loss, detriment, damage, injury to the complainant 1. Adverse effect of any rights, benefits, privileges of complainant 2. Loss of dignity of the complainant More or less the Privacy Act publicly refers to photographs in current days. In once case a man was photographed at shopping mall by professional photographer and later it found in business directory and promoting the mail. A compliant was filed with regard with the Privacy Commissioner but unable to prove the breach of privacy since there was no adverse effect. It is evidently noticed that the right of privacy in New Zealand in an inherent right and incorporated in several statutes and as well as common law. AUSTRALIA The Privacy Act 1988 regulates the handling of individual’s personal information. At the initial stage, the Privacy Act applicable to Commonwealth and Australian Capital Territory public sectors. The commonwealth and public sector agencies are supposed to comply Information Privacy Principles with respect to collection, storage, use and disclosure of personal information. Hence if anybody collects information in any form should comply Information Privacy Principles under Privacy Act 1988. By the increasing the impact of Act it was extended to consumer credit reporting. After ten years i.e. in 2000, the Privacy Act amended by inclusion of National Privacy Principles. With this amendment, the Act applies Private organizations also. Privacy interests are protected to some extent in the criminal law, 5but the privacy interests in the criminal law of New South Wales not appropriate. The invasion of piracy should attract civil and criminal responsibility. AUSTRALIAN LAW REFORM COMMISSION (ALRC) ALRC made review on the privacy and made recommendations indicating significant changes to the federal privacy in Australia. 6The changes are like introduction of statutory causes, removal of some exemptions, introduction of Unified Privacy Principles which also governs public and private sectors. The Commission also identified that tort of privacy is not available in Australia and hence need for tort of privacy. Besides the Commission proposed to establish liability for invasion of privacy. 7The government also planned to reform the privacy laws as per the recommendations of commission. Some of the key points are as follows: 1. At present the state legislation do not impose mandatory obligations for data breach. Hence the ALRC recommended the introduction of data breach notification. 2. Introduction of Uniform Privacy Principles. 3. Replacement with new 8UPP 11 in the place of NPP 9 to protect border data flows by way of business process outsourcing. 4. Introduction of consistent laws in States and Territories. 5. Imposing civil penalty when it linked with repeated interference of privacy of the individual. 6. Introduction of statutory causes of action for serious invasion of privacy. 7. Removal of certain exemptions from the Act such as small business, employee records etc. PRIVACY LAWS IN HEALTH INDUSTRY Medical professionals i.e. doctors, health workers etc have ethical obligation towards patients not to disclose personal information obtained during the course of treatment. It is not only ethical but also legal requirement. Maintaining confidentiality to be continued even after death of the patient. If violates, breach of confidence would be attracted. The information of patient should not be disclosed to even spouse, family members etch. Hence common law and legislative both are existed. However the disclosure may be made to other medical professional for the benefit of the patient. Sometimes, the disclosure is required by law and at that time the law overrides the common law. PRIVACY LAWS IN AUSTRALIA AND NEW ZEALAND 1. The Privacy Act applies to both public and private sectors in New Zealand. 2. South Australia complies privacy policy based on the Commonwealth public sector legislation. 3. But Western Australian public sector agencies voluntarily follow the as example of best practice. 4. The private organization whose annual turnover is more than $3 million are covered by the Commonwealth privacy legislation. PRIVACY LAWS IN VICTORIA The privacy laws give legal protection and enforceable rights to the consumers. These laws will tell how the personal information is collected and used by others who has such information. Three information privacy laws available for Victorians. The Acts are the Victorian Information Privacy Act 2000, Victorian Health Records Act 2001 and Commonwealth Privacy Act 1988. Victorian Information Privacy Act covers personal information held by public sector organizations which includes local councils also. With regard to Victorian Health Records Act, it covers personal health information held by public and private sector organizations including local councils, employees and schools. The Commonwealth Privacy Act covers personal information and health information held by commonwealth public sector organization and other private sector organizations. The other laws also available protect the privacy such as Surveillance Devices Act. The Information Privacy became enforceable from 1st September, 2002. PRIVACY VS TERRORISM After 11th September 2001, many features of world changed and Australia too has adopted and enacted changes with existing laws. The Australia made changes the privacy regulators to protect laws from anti-terrorism to avoid misuse. Australian privacy laws do not require reporting of breaches of privacy and it is not mandatory. Even the concept of mandatory reporting is not mentioned in the reviews. The Existing Privacy Act did not carry any criminal sanctions for breach of privacy but only penalties mentioned and there were no compensations for damages. Australian Privacy law allows collection and usage of health information for research purposes even without consent, if it is impracticable to obtain consent of the people who involved. But it should be approved by Health Research Ethics Committees. CONCLUSION New South Wales Law Reform Commission makes investigations, review and advice on the reforms of the law in South Wales, which is state of Australia. The commission has examined on the issue of invasion of privacy. The commission identified that tort of privacy is an important right which has specific recognition and protection within the Australian community. The commission viewed that the tort of privacy would be developed either by statutory or courts based and legislative protection should be affordable to the individuals. The other common law countries such as United States and New Zealand also developed torts of privacy. The country where tort of privacy not exists, have made attempts to protect the concept of privacy indirectly such as defamation, nuisance, trespass etc. but such alternatives will not suit the tort of privacy. Tort, as a civil wrong will address including breach of privacy, but it is not direct legislation. Hence separate legislation is required for better address of Tort of Privacy. Callinan J made a reference in the case of Australian Broadcasting Corporation that Australian Common law system should recognize tort of invasion of privacy. Similarly in the case of Grosse V Purvis, the District Court of Queensland recognized the tort of invasion of privacy, yet no other courts followed the decision. Relatively, the following legislative changes effected with respect to privacy in Australian businesses and government organizations: 1. The recognition of new common law tort of invasion in the case of Grosse V Purvis (June 2003) 2. Establishment of Information Act 2002 for Northern Territory Public sector 3. Amendments to Privacy Act 1988 which covers Australian private sector 4. Health Records Act 2001 for Victorian private and public sector 5. Information Privacy Act 2000 for Victorian Public sector. Besides, various Privacy Commissioners release the guidelines and information sheets periodically. Hence most of the businesses directly or indirectly affected and requires proper compliance. Direct legislation of privacy is required because some of the issues linked to other explanations such as defamation, if person’s honor and reputation is attacked. The privacy law should be modified in such a way so that all should be linked with and need to go to any other legislation for remedial measures. The defendants found liable for invasion of privacy in the cases of Grosse V Purvis (2003) Australian Torts Reports 81-706 and Victorian County decision Doe V ABC (2007) VCC 113 in Australia. But traditionally in Australia there was no such cause of action. Hence the ALRC also proposed statutory cause of action for breach of privacy with non-exhaustive list of acts, which constitute invasion of privacy. The list of acts inclusive of individual’s home, family life, individual’s correspond ace, private written, oral or electronic communications, sensitive facts of individual’s private life etc. The High Court of Australia suggested that Australia should recognize forms of protection against invasion of personal privacy and enough need is exist to protect such torts in the country. In fact all other common law countries have taken as persuasive step without conclusive. But Australia supposed to take conclusive step unlike other common law countries. The United Kingdom and New Zealand courts provided different systems for developing common law to protect the privacy. The Privacy Act is administered and influenced by the Privacy Commissioner. If the tort is actionable through the Privacy Commissioner, it may be merit in streaming all other privacy related compliances, which involved through the process. Alternatively if the tort is actionable directly in the courts, it is preferable that separate statute is to be established. The Privacy Act almost 20 years served to Australia and necessary to review and modification with respect to the needs of Australian Community based on the review of ALRC review. Though amendments gave effect to the Privacy Act 1988 with respect to privacy protection to public and private sector organizations, Sec.7B (3) states that employee records were exempt as it was addressed in industrial legislations. A review also initiated by Attorney-General department but no action was taken to remove such deficiency. Though Privacy Act exists, yet it is limited to Criminal code under Section 3A of Privacy Act 1988. The Act is silent with respect to civil remedies. Hence it is logical and desirable to provide remedies under civil law with permanent legislation for Privacy. BIBILOGRAPHY: 1. http://www.wisegeek.com/what-is-invasion-of-privacy.htm 2. http://www.alrc.gov.au/events/speeches/BC/QLS%20paper%20_final.pdf 3. http://www.austlii.edu.au/au/journals/MULR/2005/11.html 4. Justice Berna Collier (2008), Review of Australian Privacy Law 5. Review of the Privacy and Personal Information Protection Act 1998, http://www.lawlink.nsw.gov.au/lawlink/privacynsw/ll_pnsw.nsf/pages/pnsw_03_ppipact 6. Research Note (2005), Department of Parliamentary Services, Parliament Library 7. http://www.hearsay.org.au/index.php?option=com_content&task=view&id=136&Itemid=48 8. http://www.carter-ruck.com/FAQs/Privacy%20and%20Breach%20of%20Confidence.html 9. http://www.victorialaw.org.au/PrivateLives/index.htm 10. http://goliath.ecnext.com/coms2/gi_0199-5119116/A-tort-of-invasion-of.html 11. http://www.privacy.gov.au/news/speeches/sp11_07.html 12. http://www.hrcr.org/safrica/privacy/austr_law.html 13. Todd Nicholls, Heading towards definition: the law of privacy in NZ http://www.e.govt.nz/resources/research/trust-and-privacy/chapter1.html 14. http://www.lawyers.org.nz/lawtalk/651privacy.htm 15. http://www.victorialaw.org.au/PrivateLives/index.htm 16. http://www.presscouncil.org.au/pcsite/fop/cpu.html 17. http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/B471AB909A18D172CA25725C0083858A/$file/Privacy1988_WD02HYP.pdf 18. http://findarticles.com/p/articles/mi_hb4859/is_1_34/ai_n29447434/pg_1?tag=artBody;col1 19. http://www.dlaphillipsfox.com/article/253/ALRC-Report-on-Australian-Privacy-Laws Read More