Australia’s Attorney-General, Mark Dreyfus MP, has commented that a right to be forgotten and a right to sue for privacy breaches may be considered in the next phase of Australia’s privacy reforms.
Late last year, the Attorney General tweeted that he had received his department’s review of the Privacy Act 1988 (Cth) (the Act) – which was commissioned by the Australian Government in 2019 – and that he would be considering the report as he prepares to “overhaul the Act”.
He has now confirmed that a statutory tort of privacy is among the matters to be considered as part of that overhaul, and has hinted that the introduction of a right to be forgotten will also be contemplated.
Statutory Tort of Privacy
The introduction of a statutory tort of privacy would mean that Australians could sue for damages for breaches of their privacy under certain circumstances. Although we don’t know at this stage exactly what actions would constitute a breach of privacy (if such a tort is introduced), the Australian Law Reform Commission (ALRC) has previously proposed that the tort should cover ‘serious’ breaches of privacy, where the private information has been misused or used to intrude into a person’s physical private space (for example, by recording a person’s private activities). The ALRC has also suggested (among other things) that the tort should include a fault element – either that the breach must have been intentional or reckless.
Right to be Forgotten
The right to be forgotten, which is also referred to as the right of erasure, currently exists in the European Union’s ‘General Data Protection Regulation’(the GDPR) and other EU regulations governing privacy and data protection. It provides people with a right to request that organisations delete their personal information in certain circumstances, including (but not limited to) where the information is no longer required to be held by the organisation for the purpose that it was collected.
The Australian Government is expected to release the full Privacy Act Review and its response this year. We will be keeping a close eye on the privacy reform process and will keep you informed of updates along the way.