Invasions of privacy have become the  focus of significant attention with the  Australian Law Reform Commission  (ALRC) handing down its report on  ‘Serious invasions of privacy in the digital  era’ on 30 June 2014. The report is due  to be tabled in Parliament at some stage  during September 2014.

At this stage, it appears that the ALRC will recommend  a new statutory cause of action for serious invasion  of privacy. This new tort will be confined to invasions  of privacy by intrusion upon a plaintiff’s seclusion or  private affairs (including by unlawful surveillance).  Also, it is likely that the new tort should only be  actionable where a person in the position of a plaintiff  would have a reasonable expectation of privacy in all  the circumstances.

It is proposed that the foreshadowed Act should  provide that, in determining whether a person in the  position of a plaintiff would have had a reasonable  expectation of privacy in all of the circumstances, a  court may consider, among other things:

  • the nature of the private information, including  whether it relates to intimate or family matters,  health or medical matters, or financial matters
  • the means used to obtain the private information or  to intrude upon seclusion, including the use of any  device or technology
  • the place where the intrusion occurred
  • the purpose of the misuse, disclosure or intrusion
  • how the private information was held or  communicated, such as in private correspondence  or a personal diary „
  • whether and to what extent the private information  was already in the public domain
  • the relevant attributes of the plaintiff, including the  plaintiff’s age and occupation
  • whether the plaintiff consented to the conduct of  the defendant, and
  • the extent to which the plaintiff had manifested a  desire not to have his or her privacy invaded.

The House of Representatives Standing Committee  on Social Policy and Legal Affairs has also recently  published its report titled ‘Eyes in the Sky – Inquiry into  Drones and Regulation of Air Safety and Privacy’. In  consideration of the ALRC’s proposal for the creation  of a tort of serious invasion of privacy, the Committee  has recommended that the Australian Government  consider introducing legislation by July 2015  which provides protection against privacy invasive technologies (including remotely piloted aircraft), with  particular emphasis on protecting against intrusions on  a person’s seclusion or private affairs.

The Committee has also recommended that the  Australian Government initiate action to simplify  Australia’s privacy regime by introducing harmonised  Australia wide surveillance laws that cover the use of  listening, optical surveillance, data surveillance and  tracking devices.

‘Ag-gag’ laws

The ‘ag-gag’ debate has been bubbling for the past  18 months in the United States and is now starting to  get traction with Australian lawmakers.

These issues have certainly become more prevalent  in recent times as animal rights activists have become  more proactive in spreading their campaigns on  intensive farming activities, with particular emphasis on  the poultry and pork production industries.

The reality is that laws of this type have been enacted  in various US States since the early 1990s. For  example, since 1991 there has been a prohibition in  North Dakota on the act of filming or taking photos  of an animal facility without the consent of the owner,  regardless of intent and reference to damage.

Also, in an attempt to curb the increasing prevalence  of incursions by animal rights activists onto private  farming operations, West Australian Senator Chris Back  has proposed a Private Senator’s Bill to deal with the  recent increase in farm raids and trespassing by animal  rights activists.

Senator Back (and other members of parliament) has  been especially critical of the regular delays by animal  rights activists of handing footage of alleged cruelty to  relevant prosecutorial authorities.

There are two main aspects to the draft Bill, namely:

  • any party with images or recordings of suspected  animal cruelty are required to submit formal  reports to relevant authorities within 24 hours and/ or provide the relevant images within 48 hours to  enable these authorities to quickly prevent alleged  further acts of cruelty, and
  • Trent Thorne „ the imposition of stricter penalties for people who  trespass, vandalise or threaten the operation of  lawful animal enterprises.

Finally, South Australia recently passed new surveillance  legislation which made it a criminal offence to use any  audio or video obtained using covert means unless the  images are determined to be in the public interest by a  Court. Despite criticism from animal rights groups, the  SA Attorney General has stated that the intent of the  legislation is not ‘ag-gag’ related, but is grounded in an  individual’s right to privacy.