We have learned many things from Jennifer Lawrence, the latest of which is not to store nude selfies on iCloud. Undoubtedly the Australian Law Reform Commission’s release of its Report into Serious Invasions of Privacy in the Digital Era (snappy title, guys) was timed to show support for J-Law and other celebrities affected by this week’s hacking scandal.
The Report advocates a Commonwealth, statutory civil cause of action for serious invasions of privacy. It picks up on elements of similar actions in the UK, and aspects of local defamation laws. The gist is that someone has to deliberately pinch your private stuff (pun intended), the invasion of privacy has to be serious, and the public interest in protecting your privacy has to outweigh any countervailing public interests (which don't mean "what the public finds interesting").
It’s not the first time we've heard calls for a cause of action along these lines. Historically though, privacy hasn’t been a high priority for the legislature. The alternative is to wait for the courts to develop a common law action. It’s been over 10 years since the High Court suggested that this should happen, but only a few minor courts have had a crack at it and it's been a bit of a non-event.
We would love to see a cause of action for invasion of privacy in Australia. Aside from the juicy litigation, it just makes sense. The scope and means for invasions of privacy have expanded exponentially along with the internet, smart phones and social media. It’s logical and fair that there be recourse for serious privacy invasions.
But we’re not holding our breath. The Commonwealth doesn't have enough Constitutional power to give a law like this full effect. A more annoying but more effective way is for the States to either enact mirror legislation or give power to the Commonwealth.
Our money’s on the Government throwing this back in the too hard basket. Does anyone remember if this was on Tony's list of promises he wasn't going to break?