Affiliated University:

  • Category:
    Law
  • Document type:
    Case Study
  • Level:
    Undergraduate
  • Page:
    4
  • Words:
    2397

Privacy Law Problem

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Question 1

The key question is whether Ella and Matthew defamed Senator Sam in their online article. The main issue involving Senator Sam is on the online article which Ella and Matthew published on their website Canberra-Leaks “Sally left broken hearted by Tom-Not-so-Trustworthy – But is her bad luck hereditary?” This statement is to be determined whether it is sufficient to be regarded defamation. According to Australian Defamation Law, defamatory publication is the one which is intended to ridiculed, expose a person to hatred, or to lower the reputation of an individual1. In the case Gutnick v Dow Jones & Co Inc (2002) 77 ALJR 2552where the respondent alleged that Appellants published an article on “Barron’s” weekly magazine claiming that he was regarded as the “biggest customer” of convicted money launderer, and the information was also available on Appellant’s website. The High Court ruled that Mr. Gutnick can sue appellant for the defamatory internet publication based on the principles of defamation3. In the publication made by Ella and Matthew is intended to harm them through contempt treatment by others. In addition this publication was not target one person but so many people. The law requires that for a publication to be successfully considered defamation, it must be published for a third party other than the victim. The publication also discloses the names of the affected and their last statement states that “…if he is cheating on his wife, will he also cheat on us?” Therefore, Ella and Matthew defamed Senator Sam.

However, there are defences available for Ella and Matthew. However, these defences are not applied the same in all parts of Australia. Ella and Matthew had nothing to prove their allegation and therefore justification will not work. The only thing that Ella and Matthew can use to defend themselves is fair comment for public interest. As for Canberra-Leaks website, it shall be closed because the owners created it to defame government personnel.

Question 2

Tom Trustworthy approached Ella and Matthew and revealed to them the dilemma he was involved in. He told them he hanged around with another girl ‘Greta’ and he wanted information whether he should informed his girlfriend Sally whom they are engaged. Ella and Matthew published this information without informing Tom. According to Common Law, confidential information can be breached when confidant acquires confidential information from the confider by virtue of the relationship or service and confidant inform other people that information. The confidant is not supposed to reveal such information to a third party without the consent of the confider4. In the case of Ella and Matthew, they published the information without Tom’s consent and therefore they breached Tom’s confidentiality. Any information placed on public domains such as Canberra-Leaks loses its confidentiality. In Coco v. A.N Clark Ltd (1968) ChD5the court held that information obtained on obligation of confidence should not be disclosed. Another case which shows breach of confidence is Douglas v. Hello! Ltd (2001) FSR 732
6.

Defence is available for breached confidentiality and Ella and Matthew can apply. The law states that keeping information confident depends on the “notion that obligation of conscience arises from circumstances `in or through which the information was communicated”. Therefore the plaintiff can argue that they obtained information on basis which does not amount to confidential obligations7.

Question 3

Privacy Act 1988 was amended in 2014 to Privacy Amendment Act provides information that an entity must contain. First, the entity must show all personal information that it collects and how it collects, the purpose for which the entity collects and disclose such information, how an individual whose personal information is disclose can access it and seek correction, and how the entity will deal with complaints for breach of personal information. Canberra-Leaks do not meet any of such requirements and therefore not bound by Privacy Act 19888.

Question 4

As per Caron, X., et.al (2016), Freedom of Information (FOI) Act exempts some conditions where a government official can refuse to release information. Documents containing personal privacy are included in conditional exemptions. Ella wanted to access personal diary of Senator Sam and this document fall under private documents and therefore, Ella has no right.

Question 6

In Australia, the constitution allows every person the right to freedom of expression which include seeking and imparting information and ideas of all kinds. However, there is restriction on rights or reputations of others which the law requires an individual to respect them and therefore everything written by Ella and Matthew is not protected by the law.

. Part 2: Essay

Growth in the information Technology has contributed to several changes in our lives including how we control our personal information. Through the internet, personal information is collected and published. In Australia, Privacy laws are commonly known as Privacy Act or data laws. They regulate how personal data is collected, used and disclosed. However, they do not provide a direct protect the privacy of a person but entities such as use of internet services or any other telecommunication service are required to comply with privacy protection provision which are available in Telecommunication Act 1997.9 Australian privacy laws are subjected to flaws and what is considered protection to others is hindrance to others. This essay evaluates Australian Law whether it can provide adequate protection of privacy or not based on the comment made by Igor that “this is an ad hoc protection of privacy under Australian law. This is a significant flaw in Australian legal system.”

In Australia, most of the people are exposing private information which includes photos, videos, and feeling using the internet and particularly posting them on social media websites. The knowledge on privacy protection is diminishing among the Australians who blame advance in technology for the diminishing privacy rights10. Fragmentation and ad-hoc approach which is used presently to protect privacy is questionable especially due to the current behaviours experienced. In 2011, the need to change the defective privacy framework and to embrace a more flexible which recognizes freedom of speech and information, and provides national security increased.

In the current law, privacy is taken to be something secret but once it is exposed, it becomes public. Therefore, the term privacy is complicated because the term is not fully understood. Privacy laws plays significant role in regulating accessibility of private information, its confidentiality and how to manage. Failure to provide appropriate definition of what privacy means can be considered to be the main contributor of the flaw of the law. This element has been avoided for so long and privacy was taken to be something that can “speak for itself” by the Law Reform Committee. In Australia, it is normally believed that definition of the term Privacy is not within the scope of law. Despite the fact that several law scholars tried to define privacy, its definition is still not clear especially in this era which is characterised by changes in social norms as technology advances. The right of privacy is not acknowledged in Australia although the country is mandated to protect the rights of people basing on the international laws of human rights. Australian constitution lacks the protection of the basic human rights of its citizens as there is no Bill of Rights. In 1980s, it was believed that Bill of Rights was not a requirement in Australia because the Common Law allowed for freedoms such as freedom of expressions. According to article 17 of International Covenant on Civil and Political Rights (ICCPR), everyone has a right to privacy without any interference and also protection from any attacks which could ruin his reputation. In 1988, Privacy Act was passed to implement ICCPR after United Nation Commissioner of Human Right announced that Australia will apply the ICCPR. Therefore the Privacy Act of 1988 was only based on article 17 of ICCPR11

The problem surrounding privacy is not affecting Australia only but is also affects other countries. However, other countries have taken legal approaches to the issue but Australia was left behind. For example, Germany was among the first to establish legal response to the issue and Australia could borrow the ideas to build its own regulatory system. It is very difficult to discern what is private and public in Australia. In European Convention of Human Right (ECHR) personal privacy is recognized and takes action against breach of privacy. In the case of Von Hannover v Germany
(2005) 40 EHCR 121which involved a case filed by Prince Caroline of Monaco over her photograph which was printed in German magazines. The photograph showed images of her children, with a male friend in a restaurant, and in sporting activities with her husband dressed in swim suit and at the beach club. The court applied art 8 of the ECHR to recognize the importance of protecting privacy. From this case, the court took into consideration the need for protection and respect for their personal life. In the current evolving technological world, there is also a need of individual privacy. In the case of Ella and Matthew publishing Senator Sam’s personal life whether true or not interferes with his own privacy. The privacy law of Australia were established based on internal and external pressures, social concerns and political bargains and interests. The Privacy Act enacted targeted both public and private sectors but it exempted so many important elements.13
This makes the act jumbled as it only protect privacy indirectly based on some factors such as reputation, property and human dignity. When dealing with cases which touch on privacy, the problem normally arises because of the complexity of definition of the term.

Australia needs statutory approach to the protection of privacy. Currently, the privacy law lacks tort of invasion of privacy. Privacy Act contains privacy principles which were proposed by Australian Law Reform Commission (ALRC). Compared to New Zealand, her Common Law has developed tort for of invasion of privacy. This was applied in the case of Tucker v News Media Ownership Ltd (1986)2 NLLR 71614, where the media was controlled from publishing facts which were formerly in public knowledge. Witzleb et al. (2014)15, argues that adoption of statutory approach will stop all attempts which targets invasion of privacy. In addition, the statutory will provide defences with remedies which are more flexible. The Law can restrain any information obtained in unacceptable means as it was in the case Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) HCA 6316. The court had the power to restrain information obtain in improper ways. In the case of Senator Sam and other cases which involves privacy should be solved like that.

In conclusion, Australian Law is more ad hoc because it gives private sectors chance to develop their own codes, has wide exemptions, and address different sectors. The other thing is that the Law is not active in integrating regulatory requirements with information entities. The main problem with Australian Law is that it lacks the capability to control gathering personal information17. The reason for this is due to lack of statutory tort and there are only soft measures. A balance should also be made between public interest and privacy not leaving behind issues of freedom of expression when examining if there is privacy invasion. This will help in keeping the privacy of plaintiffs in cases involving freedom of expression. The privacy laws need reform that provides an approach or cause of action against privacy invasion and covers privacy in a broad way. To reform the laws, it will require resources for educating the citizens, training administrators and changing the constitution.

Bibliography

Aplin, T.F., Aplin, T. and Davis, J., 2013. Intellectual property law: text, cases, and materials. Oxford University Press.

Butler, D.A. and Rodrick, S., 2015. Australian media law. Thomson Reuters (Professional) Australia Limited.

Caron, X., Bosua, R., Maynard, S.B. and Ahmad, A., 2016. The Internet of Things (IoT) and its impact on individual privacy: An Australian perspective. Computer Law & Security Review, 32(1), pp.4-15.

Conger, S., Pratt, J.H. and Loch, K.D., 2013. Personal information privacy and emerging technologies. Information Systems Journal,
23(5), pp.401-417.

George, P. T. 2012. Defamation law in Australia. LexisNexis Butterworths.

Kargl, F., Lawrence, E., Fischer, M. and Lim, Y.Y., 2008, July. Security, privacy and legal issues in pervasive ehealth monitoring systems. In 2008 7th International Conference on Mobile Business
(pp. 296-304). IEEE.

Kenyon, A. T. (Ed.). 2016. Comparative Defamation and Privacy Law (Vol. 32). Cambridge University Press.

Kirby, M.D., 2013. Human Rights–The Challenge of New Technology. Interdisciplinary Science Reviews.

Parkes, R., Mullis, A., Busuttil, G., Speker, A., and Scott, A. 2013. Gatley on libel and slander. Sweet & Maxwell Ltd..

Rolph, D. 2016. Reputation, celebrity and defamation law. Routledge.

Witzleb, N., Lindsay, D., Paterson, M. and Rodrick, S., 2014. An overview of emerging challenges in privacy law.

1
George, P. T. 2012. Defamation law in Australia. LexisNexis Butterworths.

2Gutnick v Dow Jones & Co Inc (2002) 77 ALJR 255

3
Rolph, D. 2016. Reputation, celebrity and defamation law. Routledge.

4Butler, D.A. and Rodrick, S., 2015. Australian media law. Thomson Reuters (Professional) Australia Limited.

5Coco v. A.N Clark Ltd (1968) ChD

6
Aplin, T.F., Aplin, T. and Davis, J., 2013. Intellectual property law: text, cases, and materials. Oxford University Press.

7
Butler, D.A. and Rodrick, S., 2015. Australian media law. Thomson Reuters (Professional) Australia Limited.

8
Parkes, R., Mullis, A., Busuttil, G., Speker, A., and Scott, A. 2013. Gatley on libel and slander. Sweet & Maxwell Ltd..

9
Kargl, F., Lawrence, E., Fischer, M. and Lim, Y.Y., 2008, July. Security, privacy and legal issues in pervasive ehealth monitoring systems. In 2008 7th International Conference on Mobile Business
(pp. 296-304). IEEE.

10
Caron, X., Bosua, R., Maynard, S.B. and Ahmad, A., 2016. The Internet of Things (IoT) and its impact on individual privacy: An Australian perspective. Computer Law & Security Review, 32(1), pp.4-15.

11
Kenyon, A. T. (Ed.). 2016. Comparative Defamation and Privacy Law (Vol. 32). Cambridge University Press.

12Von Hannover v Germany
(2005) 40 EHCR

13
Kirby, M.D., 2013. Human Rights–The Challenge of New Technology. Interdisciplinary Science Reviews.

14Tucker v News Media Ownership Ltd (1986)2 NLLR 716

15
Witzleb, N., Lindsay, D., Paterson, M. and Rodrick, S., 2014. An overview of emerging challenges in privacy law.

16Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) HCA 63

17
Conger, S., Pratt, J.H. and Loch, K.D., 2013. Personal information privacy and emerging technologies. Information Systems Journal,
23(5), pp.401-417.