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DAMIEN J CREMEAN[*]
Many people are ambiguous about the right to privacy. Essentially a right to privacy is a right to be left alone. To this point most people would agree we should have a right to privacy. No one wants intrusions into their privacy by governments or by others. On the other hand, people do like to find out things about other people. If challenged, many would say they have a right to know or to find out. Should the objection then be taken: “what about the person’s right to privacy?” The answer invariably is that the person is “newsworthy” or is in the public eye or the public has a right to know.
The right to be left alone competes with these and other claimed rights. A government department may claim a right to find out about the private activities of some of its citizens. Or, an employer may claim a right to find out about the medical history of one of its employees. Or, a parent may claim a right to find out about their child’s counselling sessions. Or, someone may want to scrutinize your emails or to see which internet sites you have been visiting.
It is very difficult to balance these competing considerations. Until recently, with few exceptions, the law did so very inadequately. Basically, there was no right to privacy. An early attempt to deal with the issue is to be found in Victoria in the Listening Devices Act 1969 (Vic). Otherwise, though, a right to privacy was virtually unrecognised in Australia. In contrast was the work of the Supreme Court of the United States in crafting a right to privacy under the American Constitution out of various other rights, including that of due process.
A right to privacy, however, is now recognised in Australian law - if only mainly by statute. The main Commonwealth Act is the Privacy Act 1986 (Cth). State Acts include, in New South Wales, the Privacy and Personal Information Protection Act 1998 (NSW) and, in Victoria, the Information Privacy Act 2000 (Vic). But there are other State Acts and there are Territory Acts as well.
In their book, Privacy Law in Australia, Carolyn Doyle and Mirko Bagaric provide us with a thorough, and highly readable account, of the law of privacy in Australia. The aim of their book is set out in chapter 1. Their purpose is to provide “an overview of the legal regulation of the right to privacy”; “to explore the conceptual underpinnings of the right to privacy”; and to “suggest the manner in which the law should be developed to properly reflect and protect privacy interests.”[1] The authors achieve this aim admirably.
Chapter 1 goes on to set out a general introduction to the subject. It is said that the “right to privacy [as such] is at present so vague and unstable that its scope seems to be almost boundless.”[2] Justice Michael Kirby is quoted from an article in 1998 where he says: “To the extent that the individual has no control over, and perhaps no knowledge about, the mass of identifiable data which may be accumulated concerning him or her, and to the extent that national law-makers, despite their best endeavours, enjoy only limited power effectively to protect the individual in the global web, privacy as a human right, is steadily undermined.”[3] Justice Kirby in that article also gives us this warning: “the quantity of personal information about individuals is likely to increase rather than decrease.”[4]
In chapter 2 the authors say they “set the scene” by examining conceptual aspects of privacy.[5] They say they consider the central issues are: “what is privacy: where does the right come from? How does it rank in comparison to other rights?”[6] In dealing with these issues the authors then embark on a thought-provoking philosophical discussion of the subject. The section on “Moral Theory” is particularly interesting, dealing, as it does, with consequentialist and non-consequentialist doctrines.[7]
Chapters 3 and 4 of the book deal with the existing legal protection of privacy in Australia. The former deals with the common law position while the latter focuses on statutory protection. I found chapter 3 especially instructive. The extent to which the common law protects privacy is discussed in the context of familiar categories such as trespass to land, nuisance, trespass to goods and conversion, defamation, passing off, infliction of emotional distress and breach of confidence.[8] The general observation by the authors is that “the common law has not traditionally recognized a right to privacy as such.”[9] Reference is made to the well known High Court of Australia case of Victoria Park Racing and Recreation Grounds Co Ltd v Taylor.[10] It is correctly pointed out that three members of the High Court, however, in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[11] expressly indicated that they did not regard the Victoria Park Racing case as precluding the possibility of the development of such an action.
Chapter 4 of the book, as I have noted, deals with statutory protection of privacy. A thorough examination of all statutory provisions of relevance is undertaken. The examination is not merely by way of annotation but is by way of discussion and analysis. There could not be many areas, however, which the authors have left unexplored. Topics of immediate interest include employee privacy, health records and genetic information.[12] As to the last of these, the authors discuss forced samples and the potential benefits of genetic information.[13] A section in the chapter is devoted to the Internet and privacy.[14] Under that heading is discussed emails and web browsing.[15]
In chapter 5 of the book the authors deal with proposals for privacy law reform. They look at future directions in the area. It is pointed out that “legal regulation of privacy is still in the embryonic stage.”[16] It is argued by the authors that there is, on balance, more in favour of retaining or expanding the right than doing otherwise. The “core rationale” in support of the interest they say “lies in the fact that privacy provides the context for the development of autonomy.”[17] What the future exactly does hold is, of course, anyone’s guess. But there can be no doubt that tension will continue between a person’s “right to be left alone” and intruding claims. This could well be one side-effect of the so-called “War on Terror”.
This book is well written and authoritative as well as thorough. It covers an area of law of increasing importance. It does so in a compendious but most engaging way.
It should be read by anyone who is interested in privacy and wants to find out more about the law on the subject.
[*] Associate Professor, Deakin Law School
[1] CAROLYN DOYLE & MIRKO BAGARIC, PRIVACY LAW IN AUSTRALIA 11 (2005).
[2] Id., at 5.
[3] Id., at 1. The article is Justice Michael Kirby, Privacy in Cyberspace, 21 UNI. NSW L.J. 323, 325-6 (1998).
[4] Id.
[5] Id.at 11.
[6] Id.
[7] Id. at 20-6.
[8] Id. at 63-72.
[9] Id. at 59.
[10] [1937] HCA 45; (1937) 58 CLR 479.
[12] See DOYLE & BAGARIC, supra note 1, at 151, 157-61, 161-68.
[13] Id. at 162-8.
[14] Id. at 168-77.
[15] Id. at 171-5.
[16] Id. at 178.
[17] Id. at 179.
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