The right to privacy needs statutory protection, and NSW should act to deliver this reform as a priority, according to a unanimous Parliamentary report delivered today into remedies for serious breaches of privacy.
Whether it is protecting citizens from the damage caused by big data breaches, or practical remedies to prevent the publication of humiliating or demeaning private images on social media, there are huge gaps in the current legal framework that must be addressed.
There have now been a series of reports, including from the Australian Law Reform Commission and the NSW Law Reform Commission, calling for these reforms to privacy. It is time for the NSW Parliament to turn these reports into laws.
People seeking protection against serious invasions of privacy, including the circulation on social media of sex tapes and embarrassing photographs by disgruntled former lovers, have been forced to rely on a patchwork of civil and criminal laws, which often fall short of providing adequate remedies and are expensive to enforce.
One obvious cause of action is breach of confidence, traditionally used in cases involving trade secrets, but typically the courts have not awarded damages for emotional distress.
There is some indication the courts are adapting this cause of action to allow such damages to be awarded, but legal experts have said it would be preferable to create a new action for invasions of privacy.
“Given the evidence received regarding the ‘poor fit’ of [breach of confidence] to breaches of privacy due to it traditionally being applied to contractual or commercial relationships, and the fact that there has been little to no development of the common law in NSW, the committee believes that more needs to be done now to better protect and remedy serious breaches of privacy in NSW,” the report said.
The committee said the new tort – or civil action – for invasions of privacy would require a person who allegedly committed a serious invasion of privacy to have acted intentionally or recklessly. But negligence would be sufficient in the case of governments and corporations that might commit “big data” breaches unintentionally.
The committee recommended the Civil and Administrative Tribunal be able to hear the cases in addition to civil courts such as the District and Supreme courts to reduce the cost of seeking redress for serious invasions of privacy.
It also said Local Court magistrates should have new powers to stop people posting “an intimate or sexually explicit image or video” of a former partner on social media, commonly known as revenge porn, or to order them to take the material down.
Greens MP and Justice Spokesperson David Shoebridge, a member of the Law and Justice Committee, said:
“We have now had a decade of reports on privacy law reform that all recommend essentially the same thing, our privacy needs to be properly protected.
“In short this unanimous report says the time for talk has ended, it is now time for NSW to legislate to give people a remedy for serious invasions of privacy.
“The right to privacy is both increasingly threatened, and increasingly import, in a digital age.
“The current law provides no effective remedy for people who have had their digital identity, their personal details, spread around the internet because a negligent government or corporation has failed to keep their data secure. That’s just not good enough.
“It’s well and truly time that changed, and this report says NSW can and should act now to provide a remedy for negligent data breaches.
“The report also recommends very practical additional remedies to protect the privacy of people who are already before the courts seeking the protection of apprehended domestic violence orders.
“Too often women who are facing domestic violence, even if they have their personal safety afforded some protection with an ADVO, will see a vindictive former partner spread intimate details and images on social media.
“This report recommends giving the Local Court additional powers in domestic violence proceedings to prevent the sharing of personal and private images and to issue take down orders if any such images have been shared.
“This is about practical remedies that will work in the real world,” Mr Shoebridge said.
The Law and Justice Committee Report can be found here: Remedies for the serious invasion of privacy in New South Wales