In Australia, the rights and obligations relating to privacy are largely regulated by legislation such as the Privacy Act 1988 (Cth). However, this legislation fails to recognise increasingly common privacy breaches and obligations such as privacy regulations by governments and the Privacy Policies of domestic and international organisations. Further, and surprisingly to most people, under common law there is no legal right to privacy in Australia.
The Australian Government
The Australian government’s relatively recent decision to begin retaining residents’ metadata, and the implications of this, is of increasing concern for many people. More generally, an increasingly technologically advanced and globalised society means that we are all much more exposed to potential privacy breaches, whether this be via website hackers, such as the recent Ashley Madison hack (in which hackers released details of people using an online dating site); or simply going out in public, where cameras on phones or drones mean that you can be photographed or recorded without your permission almost anywhere.
Technology is certainly outpacing the current state of law when it comes to privacy in Australia.
The question seems to be not if, but when, courts will recognise an individual’s right to privacy. In fact, other common law countries have begun tackling this very issue.
The Tort of Privacy
In the New Zealand Court of Appeal case Hosking v Runting & ORS (2004) CA 101/03, the majority of the court came to a radical decision in recognising a new tort – the tort of privacy – in which a privacy breach was to be held where a ‘reasonable expectation of privacy’ existed, and where publication of the facts relating to the breach would be offensive to the reasonable person.
So where does this leave the future of privacy law in Australia? Legislative changes, societal pressure and time will be determinative factors.
If you are concerned about your privacy rights under Australian Law then give us a call on 02 8917 8700 or alternatively fill out the enquiry box detailing your issue and we will get back to you ASAP.