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3Protection of Privacy

Protection of Privacy under Australian Law

Question 1

Introduction

The key issue is whether the article published in the Canberra-Leaks was defamatory to Senator Sam and whether there are available defences for Ella and Matthew.

Defamatory Statements

A defamatory statement is one whose effect is to lower the reputation of a person in the estimation of his or her fellows. Communication or information posted on the internet is normally treated in the same manner as the more traditional forms of communication1. The High Court in Dow Jones and Co. Inc. v Gutnick (2002) 194 ALR 433 held that where a defamatory material is placed on the internet, the publication is deemed to occur at the point where the material is downloaded or read2. For a statement to be defamatory, the plaintiff must prove that the defendant published the material, that the material identifies the plaintiff and that the material conveys a defamatory meaning whose effect is to lower his or her reputation3. The article on Canberra-Leaks suggests that the Senator adulterer having cheated on his wife several times. Ella and Matthew were the authors of the article hence they would be the defendants. Further, the article made reference to Senator Sam Straight, and its effect would be to lower his reputation among other politicians and the general public. On the face of it, it would seem that the article would be defamatory4.

An issue also arises as to the choice of law in such a case based on the fact that the Canberra-Leaks website was hosted in the United States while the defamatory statement was read by people in Canberra. This issue was dealt with exhaustively in Dow Jones and Co. Inc. v Gutnick. The High Court, in this case, held that the location of the tort of defamation determines the law to apply. The location of the defamation, according to the Court, was where the damage to reputation occurs5. As a result, although the website was hosted in the US, the law applicable in this case and the appropriate jurisdiction would be Australia since the damage resulting from the article was in Canberra where the Senator resides.

The Defamation Act 2005 provides for several defences that defendants in defamation cases can rely on to protect themselves from liability. The defences provided under the Act include the defence of justification, contextual truth, absolute privilege, publication of public documents, qualified privilege, honest opinion among others6. In this case, Ella and Matthew may rely on the defence of justification if they can prove that the defamatory statements in the article are substantially true7. However, if they cannot, they are liable for the defamatory article.

Question 2

The Privacy Act 1988 provides that where a person is bound by an obligation of confidence relating to personal information concerning the confider or a third party, any breach of such confidence allows the confider to seek relief through legal proceedings8. For a person to claim for relief where an obligation of confidence has been breached he must identify the confidential information, proof that such information has the necessary quality of confidence, the information was received by the defendant in a way that imports an obligation of confidence and that there is intended or actual misuse of such confidential information9. Tom shared personal information with Ella and Matthew concerning how he had hooked up with Greta Giggles, yet he was engaged to Sally Straight. This information was not common or public knowledge hence it had the quality of confidence. After sharing the information, Tom specifically told Ella and Matthew not to tell anyone which shows that an obligation of confidence was established. However, Ella and Matthew later publishes this information in the Canberra-Leaks. This was a breach of Tom’s confidentiality.

The available defence where there is a breach of confidentiality is the public interest defence. For the defence to apply, there must be a public interest that favors disclosure over the fulfillment of the obligation of confidence10. In this case, even if Ella and Matthew wanted to let the public know about the Senator’s adultery, they could do so without publishing the information shared by Tom. As a result, they cannot rely on this defence11.

Question 3

Canberra-Leaks is bound by the Privacy Act 1988. Although the Canberra-Leaks’ website is hosted in the US, the Privacy Act provides that its provisions apply to an act done in and outside Australia by an organization where such act relates to personal information about an Australian citizen. The article published contains personal information relating to the Senator and Tom who are both Australian citizens. Canberra-Leaks is, therefore, bound by the Privacy Act.

Question 4

Ella does not have a right to Senator Sam’s diary under the Freedom of Information Act 1982. This is because the Act does not apply to elected representatives such as the president and the senators.

Question 5

The article written by Ella and Matthew does not enjoy a broad constitutional right to freedom of speech. This is because the exercise of the freedom of speech is limited by the constitutional right to privacy12. While Ella and Matthew have the right to freedom of speech, they are also required to ensure that they do not infringe on other people’s right to privacy.

The statement by Igor that the protection of privacy under Australian law is ad hoc suggests that the protection offered does not have a wide view of the protection of privacy, and neither is the law on protection of privacy adequate for the purpose. I agree with the statement based on the fact that there are insufficiencies in the provisions of the Privacy Act 1988 which makes it incapable of adequately protecting the privacy of individuals. The enactment of the Privacy Act was a significant step towards the protection of the right to privacy. Provisions relating to the obligation of confidence and the right of a confider to seek relief where the obligation has been breached help protect the privacy of individuals13. The Act regulates the way in which personal information should be handled either by the government or the private sector. However, although the Act clearly states that it binds the Australian Government, the Australian Capital Territory and their agencies and authorities14, the Act regulates the handling of personal information by state governments only to a limited extent. State authorities do not form part of the public sector agencies and neither do they fall within the definition of private sector organizations15. Such regulation offers inadequate protection since state authorities can take advantage of the loopholes in the Act to mishandle private information. Further, although the Act provides for relief where a person breached the obligation of confidence, such relief has not been accepted by the Australian Courts16.

It is also worth noting that some jurisdictions such as the United States have introduced a cause of action for invasion of privacy. The independent cause of action was developed based on the observation that the press was overstepping the boundaries set for the protection of the right to privacy17. The independent cause of action provides for privacy tort protection in four instances. These include where a plaintiff’s seclusion or private affairs have been invaded, where embarrassing private facts about a person have been publicly disclosed, where there is publicity which places the person concerned in a false light and where a person’s name or likeness is appropriated for the other person’s advantage18. This independent cause of action has not been recognized in Australia19.

The failure of the Privacy Act to fully regulate state authorities the handling of private information and the failure to introduce a cause of action for invasion of privacy has made it difficult for plaintiffs to be compensated for injury suffered as a result of the invasion of privacy. It has also become difficult to protect the privacy of individuals due to the lack of a cause of action for plaintiffs. This shows the inadequacy of the Australian law in protecting the right to privacy.

References

Australian Broadcasting Corporation. Protecting a right to personal privacy. Australian Broadcasting Corporation, 2008.

Australian Human Rights Commission. Free speech. Australian Government, 2014.

Defamation Act 2005 (Cth)

Garnett, R. Dow Jones, and Company Inc. v Gutnick: An adequate response to transnational internet defamation? Melbourne Journal of International Law, Vol. 4, 1-21, 2003.

Kenyon, A and Marjoribanks, T. Journalism and defamation law: Contesting public speech. The University of Melbourne, 2015.

Koomen, K. Breach of confidence and the public interest defence: Is it in the public interest? Queensland University of Technology Law Journal, 2013.

Martin, B. Defamation law and free speech. London, Freedom Press, 1998.

McColl, R. An Australian perspective on privacy law developments. Media Law Resource Centre, 2009.

Mitchell, P. The foundations of Australian defamation law. Sydney Law Review, Vol. 28, 477-504, 2006.

Office of the Information Commissioner. Breach of confidence at Common Law. Queensland Government, 2016.

Privacy Act 1988 (Cth)

Rolph, D. A critique of the national, uniform defamation laws. Torts Law Journal, Vol. 16, 207-248, 2008.

1 Rolph, D. A critique of the national, uniform defamation laws. Torts Law Journal, Vol. 16, 2008, 209.

2 Garnett, R. Dow Jones and Company Inc. v Gutnick: An adequate response to transnational internet defamation? Melbourne Journal of International Law, Vol. 4, 2003, p. 2.

3 Kenyon, A and Marjoribanks, T. Journalism and defamation law: Contesting public speech. The University of Melbourne, 2015., p. 4.

4 Martin, B. Defamation law and free speech. London, Freedom Press, 1998, 10.

5 Garnett, R. Dow Jones and Company Inc. v Gutnick: An adequate response to transnational internet defamation? Melbourne Journal of International Law, Vol. 4, 2003, p. 3.

6 Sections 25 to 32 of the Defamation Act 2005 (Cth)

7 Fierravanti-Wells v Nationwide News Pty Ltd [2010] NSWSC 648

8 Section 90 of the Privacy Act 1988 (Cth)

9 Coors Pavey Whiting and Byrne v Collector of Customs (1987) 74 ALR 428

10 Koomen, K. Breach of confidence and the public interest defence: Is it in the public interest? Queensland University of Technology Law Journal, 2013, p. 56.

11 Mitchell, P. The foundations of Australian defamation law. Sydney Law Review, Vol. 28, 2006, 483.

12 Australian Human Rights Commission. Free speech. Australian Government, 2014, p. 7.

13 Office of the Information Commissioner. Breach of confidence at Common Law. Queensland Government, 2016, 7.

14 Section 4 of the Privacy Act 1988 (Cth)

15 Ibid section 6C(1)

16 McColl, R. An Australian perspective on privacy law developments. Media Law Resource Centre, 2009, p. 3.

17 Australian Broadcasting Corporation. Protecting a right to personal privacy. Australian Broadcasting Corporation, 2008, 2540.

19 Victoria Park Racing and Recreational Ground Co. Ltd v Taylor (1937) HCA 45