Privacy

With thanks for contributions from Leanne O’Donnell (@mslods / mslods.com),  Virginia Leighton-Jackson and Griffith University media freedom interns

Chapter 12: Privacy

Recent Cases

Wilson v Ferguson (2015)

  • Wilson v Ferguson [2015] WASC 15 (16 January 2015) regards breach of confidence via online publication of explicit images to Facebook by a jilted ex-lover, and how the Australian court system should respond.
    • A number of images and videos were posted on Facebook in retaliation to the woman ending the relationship in a move that was designed to “inflict mental harm, distress, humiliation, loss of self-esteem and embarrassment.
      • Attached to the posts were comments such as “Happy to help all ya boys at home…enjoy!” and “Let this b a fkn lesson… I will [expletive] on anyone that tries to [expletive] me ova. That is all.” Along with a series of harassing texts.
    • The judge upheld the plaintiff’s claim that the images were for “the exclusive enjoyment of the gratification of the plaintiff and defendant so long as their relationship lasted” and that they were confidential “by virtue of their relationship and in circumstances, the parties owed each other a duty of confidence not to distribute or disclose”.
      • Issued an injunction for the defendant not to post any more similar videos or images, and awarded $48,400 in damages – including aggravated, punitive and special damages.

– Virginia Leighton-Jackson

Wilson v Ferguson [2015] WASC 15 (16 January 2015), 16.02.2015, < http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/wa/WASC/2015/15.html>

**Compare with the NZ case of C v. Holland NZHC 2155; [2012] 3 NZLR 672 (24 August 2012) , which significantly advanced and further defined NZ tort of invasion of privacy. Insightful comment from barrister Peter A Clarke in his blog:

C v Holland is a significant development of the tort of privacy in New Zealand.  The High Court has adopted the tort of seclusion as the Ontario Court of Appeal did in January.  It is a very thoroughly reasoned decision, sensible given its possible eventual consideration by the appellate courts in New Zealand.  It is relevant to compare and contrast the New Zealand situation with Australia.  The Australian common law protection of privacy is at a very early stage in development and is an expansion of breach of confidence with its underpinning being the House of Lords authorities in Campbell v MGN Ltd and Douglas v Hello.  The authorities in the UK have significantly advanced beyond those decisions though they remain influential.  How privacy protections in Australia will develop is an interesting question.  The composition of the High Court that considered ABC v Lenah Game Meats and which left the door open to a privacy tort or a more developed claim in equity has almost completely changed. Under the rubric of breach of confidence it is reasonable to expect the fact situation in this case to be actionable in Australia. Whether that is the best way of affording protection, rather than a stand alone tort of privacy is another matter.”

Australian Press Council adjudication on Sunday Herald Sun, 2 March 2014

  • Adjudication no. 1628 (11 January 2015) [2015] APC 1, regards a Sunday Herald Sun article in 2014, bearing the headline “EXCLUSIVE: the 12 ALF stars still in limbo: DONS DRUG HELL”; the article containing prominent photographs of 14 players who had told ASADA they thought they might have been injected with banned substances. Players were identified by their photos and by their names
  • The Press Council examined the article and the context of the publication and while it asserted that the paper had intruded on their privacy and “may have caused them significant harm”, there were public interest factors at play – meaning that it was not a “clear breach” of the Press Standards.
    • General Principle 4: General Principle 4: “News and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy is not to be interpreted as preventing publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports should be identified as such.”

– Virginia Leighton-Jackson

Adjudication no. 1628 (11 January 2015) [2015] APC 1, 16.02.2015, < http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/APC/2015/1.html?stem=0&synonyms=0&query=privacy%20media>

Recent Legislation

Privacy Amendment (Enhancing Privacy Protection) Act 2012, <http://www.comlaw.gov.au/Details/C2012A00197>

Recent News

Australian Law Reform Commission’s Report 123: Serious Invasions of Privacy in the Digital Era

  • Published in June 2014, this ALRC report examines whether there should be a common law action for Breach of Privacy to fill in the gaps left by existing laws.
  • It poses nine guiding principles, which include balancing the proposed laws against other important interests including public interests including free speech/ media, open justice, proper administration of government, public health and safety, national security, and the detection of crime and fraud.
  • Overall it poses two types of invasion of privacy:
    • a) intrusion upon seclusion, such as by physically intruding into the plaintiff’s private space or by watching, listening to or recording the plaintiff’s private activities or private affairs; or (b) misuse of private information, such as by collecting or disclosing private information about the plaintiff.

– Virginia Leighton-Jackson

ALRC. 30.06.2014, “Serious Invasions of Privacy in the Digital Era”, ALRC Report 123, < http://www.austlii.edu.au/au/other/lawreform/ALRC/2014/123.html>

Office of the Australian Information Commissioner’s principles updated:

  • The previous National Privacy Principles (NPP) and Information Privacy Principles (IPP) have been replaced by the Australian Privacy Principles, as of March 2014.
    • Main updates include changes to data retention as set forward in Privacy Amendment (Enhanced Privacy Protection) Act 2012, and the collection and storage of personal and other sensitive information

Office of the Australian Information Commissioner, 2014, “Privacy Fact Sheet 17: Australian Privacy Principles”, 16.02.2015, < http://www.oaic.gov.au/privacy/privacy-resources/privacy-fact-sheets/other/privacy-fact-sheet-17-australian-privacy-principles>

Use of drones in newsgathering:

  • From January 2015, a number of media outlets in Australia (the ABC) and around the world (the New York Times) will be trialling the use of aerial drones to capture video footage, and in general newsgathering.
    • This raises privacy concerns in the form of trespassing into restricted space and gaining footage which may infringe on an individuals privacy. It also opens the door for pilots of these drones to be prosecuted along with the journalist or news organisation responsible for broadcasting the material.

– Virginia Leighton-Jackson

 

  • For readings on responsible drone technology, start here:

https://journlaw.com/2014/11/04/the-law-and-ethics-of-media-drones-g20griff/

http://tinyletter.com/mattwaite/archive

http://medialaw.unc.edu/resources/drone-journalism/ (drone newsgathering in the USA)

http://www.abc.net.au/news/2014-11-04/abc-develops-training-course-to-use-drones-for-newsgathering/5865912 (the ABC’s use of drones in 2015)

 

Johnson, N. 05.11.2015, “Changes to aviation laws will give media more freedom to use drones for newsgathering”, ABC News, 16.02.2015, <http://www.abc.net.au/news/2014-11-04/abc-develops-training-course-to-use-drones-for-newsgathering/5865912>

UNC Center for Media Law and Policy. 2014, “Drone Journalism and the Law”, Media Law Resources, 16.02.2015, < http://medialaw.unc.edu/resources/drone-journalism/>

 

Other news

Privacy Update – Publications – Be Informed – Minter Ellison http://www.minterellison.com/publications/newsletters/Privacy-Update-A-year-in-review-and-looking-ahead-to-2015/#.VNmXIHQpYfg.twitter

Examples of how data retention will impact on everyday Australians. | Crikey | http://bit.ly/1zXs4c6

Sharing images and not caring. | NZ Privacy Commissioner |  

Privacy in Australia – a timeline from colonial capers to racecourse snooping, possum perving and delving drones – 5 October 2013

(via @mslods):

Australian authorities clock 50% success rate in Apple data requests. | ZDNet |http://zd.net/1aMmiNm

Google is ordered to block images in privacy case. | New York Times |http://nyti.ms/1dceS3E

Russian Internet Surveillance: meet the new boss, same as the old boss. | Global Voices Advocacy | http://bit.ly/17M0Ojk

Yes, there actually is a huge difference between government and corporate surveillance. | The Washington Post |  http://wapo.st/1bibaml

Queensland Justice accidentally discloses sensitive data. | iTnews | http://bit.ly/HKbram

The Real Lesson of NSA: If your power depends on insiders vs. outsiders, time for plan B. | Medium | http://bit.ly/1akHIuQ

No morsel too minuscule for all-consuming NSA. | The New York Times |http://bit.ly/HuVapH

NSA infiltrates links to Yahoo, Google data centers worldwide, Snowden documents say. | The Washington Post | http://wapo.st/Hzwdtm

LinkedIn in privacy storm over claims its iOS apps are ‘hijacking email’. | BRW |http://bit.ly/1hEd9HK

 

October 2013, via @mslods:

Medical start-up invited millions of patients to write reviews they may not realise are public. | Forbes | http://onforb.es/HmTAGE

Keeping teens ‘private’ on Facebook won’t protect them. | TIME | http://ti.me/1awIn09

NSA monitored calls of 35 world leaders after US official handed over contacts. | The Guardian | http://bit.ly/18Y5vV4

LinkedIn ‘Intro’duces insecurity. | Bishop Fox | http://bit.ly/16BYFG5

Former ASIO head to run AG office. | SMH | http://bit.ly/1cwypMn

Anti-NSA group adopts highway to get close to Utah data centre. | The Salt Lake Tribune | http://bit.ly/15Vdgdc

Lavabit’s Legal Fight: Should the feds have the right to break the Internet’s security system? | Forbes | http://onforb.es/H94Oyo

Australia starts debate on the right to be forgotten on the Internet. | The Age |http://bit.ly/1i6S3iH

Mass spying: How the US stamps its supremacy on the Pacific region. | The Guardian |http://bit.ly/16YA3YD

Internet freedom group splits from tech companies over surveillance concerns. | The Hill’s Hillicon Valley | http://bit.ly/19DMc3s

The Australian government knew about PRISM before the Snowden revelations. | IT News | http://bit.ly/GYdFlu

Australian Law Reform Commission has released its Issues Paper – Serious Invasions of Privacy. | ALRC | http://bit.ly/18byJzf

Facebook users can no longer hide from search. | Fast Company | http://bit.ly/GVSmSm

Google will start using your picture to sell products to friends. | The Verge |  http://bit.ly/18bx2Sq

Privacy in Australia – a timeline from colonial capers to racecourse snooping, possum perving and delving drones. | journlaw | http://bit.ly/15TGgin

NSA and GCHQ target Tor network that protects anonymity of web users. | The Guardian | http://bit.ly/19rkYP4

Avoid facial detection algorithms … with a t-shirt. | The Atlantic | http://bit.ly/1fT7H5A

 

Mindful ethics for bloggers – 11 August 2013

One response to “Privacy

  1. Pingback: Journlaw running updates to The Journalist’s Guide to Media Law | journlaw

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