The Australian Law Reform Commission’s Final Report, Serious Invasions of Privacy in the Digital Era (Report 123, 2014) was tabled in Parliament today and is now publicly available.
The Terms of Reference for this Inquiry, required the ALRC to design a tort to deal with serious invasions of privacy in the digital era. In this Report, the ALRC provides the detailed legal design of such a tort located in a new Commonwealth Act and makes sixteen other recommendations that would strengthen people’s privacy in the digital environment.
ALRC Commissioner for the Inquiry, Professor Barbara McDonald, said “The ALRC has designed a remedy for invasions of privacy that are serious, committed intentionally or recklessly and that cannot be justified as being in the public interest—for example, posting sexually explicit photos of someone on the internet without their permission or making public someone’s medical records. The recommendations in the Report also recognise that while privacy is a fundamental right that is worthy of legal protection, this right must also be balanced with other rights, such as the right to freedom of expression and the freedom of the media to investigate and report on matters of public importance.
The ALRC has closely considered submissions from industry and the community, as well as common law principles and developments in other countries. The recommendations, taken together, would better protect people’s privacy in the digital environment, while protecting and fostering freedom of speech and other public interests.”
The Report also recommends that a new Commonwealth surveillance law be enacted to replace existing state and territory laws, to ensure consistency of surveillance laws throughout Australia, and a number of other reforms to supplement the statutory cause of action.
During the course of the Inquiry, the ALRC produced two consultation papers, received 134 submissions and undertook 69 face to face consultations with media, telecommunications social media and marketing companies amongst other organisations, many expert academics, specialist legal practitioners, and judges, public interest groups and government agencies. Two legal roundtables in Sydney and London were also conducted.
ALRC President, Professor Rosalind Croucher thanked Professor McDonald for her work on this complex Inquiry. “The ALRC had a very tight timeframe of ten months to complete this Report, and the quality of the work produced is a great credit to Commissioner McDonald and her team. I want to take this opportunity to thank all those who contributed their time and expertise to this Inquiry. Wide reaching consultation and engagement is a benchmark of the ALRC’s work and contributes in a fundamental way to the quality of our recommendations. I consider that this Report will provide a significant contribution to the understanding of the law in relation to privacy and its sophisticated analysis will play a distinct role in the development of the common law and statutory protections of privacy.”