Is it secret? Is it safe? Delving into the future of Australia's Privacy Laws...

Published from the original

Story By: Wenee Yap
December 6, 2007

Facebook is the American Express of the net generation: they don't leave home without checking it at least once for status updates, wall posts, videos, quizzes, and silly gifts. Its Harvard creator Mark Zuckerberg is a millionaire; as a booming social network it has linked long-lost friends and allowed them to share their lives across oceans and missed years through online photo albums, events and other forms of communication. It is also at breaking wave of the latest controversy in Australian privacy law. Around Australia, billboards hired for Virgin's latest advertising campaign feature an exuberant girl giving a 'V' sign, quite apt to promote the brand's hip youth image. Unfortunately, rather than the work of slick production studios, the photo was procured from the Facebook profile of an unsuspecting American. Cue lawsuits.

Such a situation highlights the debate raging around privacy protections and laws in the age of global and swift dissemination mediums like the internet, and news channels and gossip magazines hungering for fresh scandal.

"We have to be realists," said UTS:LAW Lecturer and media law specialist Geoff Holland, who is preparing a paper on potential Australian privacy reforms in the wake of current investigations into the field by the Australian Law Reform Commission and the New South Wales Law Reform Commission. "We as individuals must rely not only on the law, but also take steps ourselves to ensure that information that we put out there is not the type of information that could harm us. With Facebook and MySpace, we might only intend for our friends or family to see this information, but often it's freely available to the world."

Nowhere was this advice more needed and famously ignored than in the case of Paris Hilton and that tape. Cynics might argue that such reckless abandon regarding her privacy was in fact a clever move calculated to propel Paris's mediocrity into fifteen minute infamy, schlock horror films and reality TV.

Publicity does hold commercial value, Holland observed. He believes it is an issue worth considering in Australian law. "If you are relying on publicity on the press, magazines or television showing interest in you to keep up your public image to what extend should you be able to control the information that is presented about you? I think there is a point where the line can be drawn to say, Even if the person is a celebrity, public figure or politician, there is personal information about the individual that should not be freely published without permission. For example, personal issues of health, or sexual matters; unless these matters have a bearing on the public image that has been presented."

Australia is at the crossroads of privacy law. Cases like Lenah Game Meats v ABC left tantalizing High Court dicta which appeared to open the way for recognising a tort of privacy; Grosse v Purvis (2004) and Doe v ABC, both seem to be even bolder. Holland cautioned against taking too much from these latter inferior court judgments, as both resulted from 'very specific issues.' The United States have developed privacy law via case law; the UK broadened its action of 'breach of confidence'to meet its commitments under the European Convention on Human Rights. Holland advocates a legislative approach.

"Response by the legislature is the only way that we can ensure that not only is there adequate protection given to an individual's privacy, but also proper weight given to exceptions to breach of privacy such as the reporting of news, or publicity issues," said Holland.

How far is too far? In the United States, prominent sports figures are now seeking to prevent the publication on their career statistics, claiming such publication is an invasion of their privacy. A legislative approach, Holland argues, would bring certainty to the law and act as a guide to avoid those kind of broad claims.

Currently, Australia's privacy laws only cover information privacy. Both the Commonwealth Privacy Act and the NSW Personal Information and Privacy Act focus on regulating the way government departments and certain corporations can collect and hold personal information about individuals. "It certainly doesn't provide sufficient protection where information is collected outside those very narrow circumstances," said Holland.