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.
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.