International and Comparative Perspectives

Question: Discuss about the International and Comparative Perspectives. Answer: Introduction: It is generally claim that very limited protection has been provided to personal privacy in Australia and the law in this regard is unsettled. There is common wealth legislation that protects identifiable personal information. According to this legislation such information can only be collected/used/held and disclosed only in certain ways (Johnston, 2007). This legislation is administered by the Australian Information Commissioner. At the same time, there are several other laws that are related with particular kinds of sensitive information. Before discussing the issue if adequate protection is available to personal privacy under the legal system of Australia, the various types of privacy needs to be discussed. Therefore, generally speaking there are two types of privacy that need protection by the law. In this regard the first type of privacy is the general right to personal privacy. It is related with preventing the parts of the private life of a person from being made public. In this regard the second type of privacy is the personal information privacy. This requires that enough control, choice and access is provided to the individuals regarding the way, the personal information of individuals is used by governments and businesses (Barendt, 2006). Hence in this regard has been commented that only limited protection is available to personal privacy under the Australian legal system. On the other hand, significant protection has been provided in case of the personal information privacy. Mainly, such protection has been provided by the Privacy Act, 1988 (Cth). It has been claimed that generally the regresses terminus it is not provide protection to the right to personal privacy, neither through the laws nor under the common law. However there have been some cases decided in Australia in which the courts have expressly recognized that a right of it is available under the common law in case of a breach of the right to privacy of an individual (Grosse v Purvis, 2003). This was also stated by the court in Jane Doe v Australian Broadcasting Corporation (2007). But at the same time, it also needs to be mentioned that a lot of judicial commentary is also present that is leading in the opposite direction (Kalaba v Commonwealth, 2004). The same was the effect of the decision given recently in Sands v South Australia (2013). In this context, the courts in the United Kingdom and in some other countries have generally looked towards the duties of confidence when they are dealing with the privacy issues (Wainwright v Home Office, 2003). Similarly, Hosk ing v Runting (2005) provides an example from New Zealand. But in this context, cases like Mosley v News Group Newspapers Limited (2008) also need to be considered in which the privacy rights have been recognized in the United Kingdom under the European Convention on Human Rights and Fundamental Freedoms. In this context, a limited protection has been provided under the common law in Australia to personal privacy, for instance, with the help of laws related with defamation and trespass (Cheer, 2007). In the same way, some protection or relief can also be obtained through the obligations that have been imposed by the duty of confidence. In the same way, a limited protection has also been provided to personal privacy in Australia by legislation. An example in this regard can be given of the Human Rights (Sexual Conduct) Act, 1994 (Cth). In this regard, a report titled Report 120: Invasion of Privacy was released by the NSW Law Reform Commission. In this report, it was recommended by the Commission that amendments should be made in the Civil Liability Act, 2002 (NSW) for the purpose of including a statutory cause of action related with the invasion of privacy. Similarly it was recommended by the Australian Law Reform Commission that a statutory cause of action should be developed that can be deal with serious invasion of privacy (Australian Law Reform Commission, 2008). The Victorian Law Reform commission has also made a similar recommendation in its report that was released in 2010. On the other hand, the Privacy Act, 1988 (Cth) provides the minimum standards related with the way in which personal information of individuals can be used, collected, health and disclosed. This legislation provides certain rights to the individuals that were related with their personal information which includes the right to access or require the collection of such information that is held by an entity regarding them (Doyle and Bagaric, 2005). In this context, personal information can be described as information or an opinion regarding and identified individual or a person who is reasonably identifiable. In this regard, it is immaterial if the information on the opinion is true or not. Similarly, it does not matter if the information is immaterial form or not. The definition of personal information covers a wide range of information (Hixson, 1987). However if the individual can be described as reasonably identifiable, will depend on the circumstances of each case, including the natu re of such information as well as any other information that may be available in this regard. Therefore, in the end it can be said that privacy is the right of the natural persons to have protection from any inclusion in their personal lives and also to have control over the collection and use of their personal information. However in Australia, privacy is not an absolute right. Therefore it differs in various contexts and it is also required to be balanced with other competing rights and duties. The protection of privacy in Australia is affected by common law and also by several statutes that have been implemented at State and Commonwealth level. References Australian Law Reform Commission, (2007) Review of Australian Privacy Law, Discussion Paper 72 Australian Law Reform Commission, (2008) For Your Information: Australian Privacy Law and Practice, Report No 108 Barendt, E., (2006) Privacy and freedom of speech in Andrew T Kenyon and Megan Richardson (eds), New Dimensions in Privacy Law: International and Comparative Perspectives, Cambridge University Press pp 11 Cheer, U., (2007) The Future of Privacy: Recent Legal Developments in New Zealand, 13 Canterbury Law Review 169 Doyle, C. and Bagaric, M., (2005) Privacy Law in Australia, Federation Press Hixson, R F, (1987) Privacy in a Public Society: Human Rights in Conflict Oxford University Press Johnston, M., (2007) Should Australia force the square peg of privacy into the round hole of confidence or look to a new tort? 12 Media and Arts Law Review 441 Grosse v Purvis [2003] QDC 151 Hosking v Runting [2005] 1 NZLR 1 Jane Doe v Australian Broadcasting Corporation [2007] VCC 281 Kalaba v Commonwealth [2004] FCAFC 326 Mosley v News Group Newspapers Limited [2008] EWHC 1777 (QB) Sands v South Australia [2013] SASC 202 Wainwright v Home Office [2003] UKHL 53