Taking into account Australia's existing privacy laws, this paper asks whether a new statutory cause of action for privacy should be introduced and what elements a statutory cause of action might include.
Community concern about the right to and protection of privacy is growing as new technologies change the way we interact with business, government, and each other. Australians are increasingly connected to the internet at home and work. Digital technologies are readily affordable and available. Online activity is growing and ways of communicating are more diverse. Recording devices in phones are becoming standard. These changes have significant advantages for Australian society, but they also pose commensurate risks to our privacy. Images, sounds and other information can easily be recorded, and just as easily can be uploaded to the internet, or distributed via email and instant messaging — sometimes without a person’s consent or without their knowledge.
Social networking platforms allow extensive online networks to be created and maintained, for links and associations to be made, and for images and information to be widely shared. Once on the web it becomes increasingly difficult for an individual to control. Privacy may be protected through a range of regulatory, administrative, educational, and legal mechanisms. In Australia, the Commonwealth Privacy Act 19881, along with privacy and personal information legislation in most States and Territories, seeks to protect the personal and sensitive information of individuals, primarily by requiring that such information be collected and handled appropriately. Laws relating to defamation, telecommunications, breach of confidence and trespass, amongst other things, also offer protection for aspects of the private lives of those resident in Australia.
In its 2008 Report, For Your Information: Australian Privacy Law and Practice, the Australian Law Reform Commission (ALRC) considered the range of privacy protections available in Australia and made a number of recommendations. As part of that report, the ALRC recommended thatfederal legislation should provide for a statutory cause of action (a right to sue created by law) for serious invasions of the privacy of natural persons. The New South Wales and Victorian Law Reform Commissions have also recommended similar causes of action.
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