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Law, Technology and Global Business

  1. The term ‘privacy’ has been divided into several categories under the Australian law. These categories are:
  • Information Privacy- This includes the protection and privacy of personal data of an individual which includes medical records government records financial information etc
  • Bodily Privacy- This category protects the physical aspect of an individual and includes protection against bodily harm or invasive procedures such as drug testing and genetic tests.
  • Privacy of Communication- This category ensures protection of communication of an individual with any other entity such as privacy of conversations through telephones emails letters or any other form of communication.
  • Territorial Privacy- This category states that no intrusion shall be accepted into the domestic area and other personal spaces of an individual such as the workplace.[1]

In the case of Victoria Park Racing and Recreation Grounds Co Ltd v Taylor[2], the Court held that the Common Law provisions do not recognise a right to privacy. This decision was slightly changed when the Privacy Act, 1988 was enacted subsequent to the decision of the case.

The Australian Privacy Principles enacted on March 2014 accept the definition of ‘personal information’ as provided in Section 6 of the Privacy Act, 1988. This definition is further broadened by the provisions of Section 187LA of the Telecommunications (Interception and Access) Act, 1978. An important part of the definition provided in the statute is that it makes the identity of a person as a mandatory clause.[3] It has been interpreted that any information which is capable of identifying a particular individual maybe considered to be within the ambit of personal information. This interpretation of the term personal information covers all information related to an individual, which has attracted the objections with regard if the telephone number or the IP address of an individual should be considered as personal information and restrained from being shared in public.[4]

The specific term of personal privacy has not been used or recognised in any legal instrument in Australia, and thus, the basis term or ‘privacy’ may be correlated with the term of ‘personal privacy’ and it may be understood to mean invasion of the personal space of any individual by photographing or video-taping the person in public areas or in private quarters.[5] Thus, it is understood that the concept of ‘personal information’ is included within the ambit of the concept of privacy, as recognised by the privacy act of 1988. Both the concepts are interdependent and interrelated.

  1. The Australian Privacy Principles are a part of Schedule 1 of the Privacy (Amendment and Handling Privacy Protection) Act 2012, which enhances and updates the protection provided by the Privacy Act of 1988, to deal with the development of technology and to provide protection at par. The amended act and the Australian Privacy Principles have come into force from March 2014 and replaced the National Privacy Principles and the Information Privacy Principles. There is a total of 13 principles included within the Australian Privacy Principles.

According to the new provisions of the Australian Privacy Principles, a policy should be drafted with regard to the specific personal information related to an individual that is being collected.[6] The individual has to be well informed about the personal data that is being taken by any organisation and how it may be used by them.

The individual about whom information is being collected must be given an option to have an access to the information and correct it if necessary. it has been made specifically clear by the Australian privacy principles that are relevant information with regard to any individual must not be collected by any organisation and if the individual does not want to use his or her real name, the option must be given to the individual to use a pseudonym in order to mask the real identity of the person. if personal information about an individual is collected from a source other than that of the individual, the authority or organisation collecting the information has to inform the individual about the collection of information and the laws that it is the collection of such information and the consequences if the information is not collected.[7] The purpose for collection of the information cited by the authorities should be followed and the information should not be used for any other purpose for divulged to any other authority, for direct marketing or otherwise, unless such disclosure is necessary and authorised by the law.

The principles do not separately deal with protection of information exchanged through emails, but a general guideline has been set out for organisations which has to be followed for collection of personal data from individuals.

  1. As a tenant, an individual is entitled to certain rights, including the right to ‘enjoy reasonable peace, comfort and privacy’ within the rented premises. Even the landlord can be held for violation if these rights are breached by them.[8] The law provides that the landlord may enter the premises that have been rented with or without consent as provided by the statute. Various states in Australia have their own privacy policies and statutes governing the privacy issues of tenants with regard to their landlord. In the given situation, the right to privacy by Joan has been violated by the landlord as he had been spying on the tenant without her knowledge and has violated the personal privacy of the tenant.

Opposite to the initial understanding of the court that right to privacy was not recognised by the Common Law System, the courts of Australia, US and Canada, have recognised the right to privacy and have considered it to be a tort, which may be made punishable.[9] The first case which recognised the tort of invasion of privacy in Australia was the case of Grosse v Purvis[10], where both the parties were involved in a relationship for a period of time before the relations soured and resulted in stalking of the female by the male partner. Similar to the current facts, the accused had installed video cameras within the residential premises of the victim and the Courts recognised it as a violation to privacy, although no separate tort has been attributed to the issue. Damages worth $178,000/- were awarded to the victim. It was also stated in the case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[11], that every individual had a right to enjoy privacy and if that right is violated or breached, then it gives rise to an actionable tort. In the current given facts, Joan can file a suit against the landlord for a tort- violating her right to privacy. Since the right to privacy is not recognised by any laws, a criminal action may not be possible in the current scenario.[12]

Living in the 21st century, Australia should officially recognise the Right to Privacy. A majority of the countries have already recognised the right and made it a fundamental right for the citizens of the country. With the developing technology, it is very difficult to function without laws protecting the privacy of an individual.

Bibliography for Australian Privacy Laws

Articles

Carron, X., Bosua, R., Maynard, S. and Ahmad, A., 2016. The Internet of Things and Its Impact on Individual Privacy: An Australian Privacy Principle Perspective. Computer Law & Security Review, 21(1), pp.4-15.

Choi, J.P., Jeon, D.S. and Kim, B.C., 2019. Privacy and personal data collection with information externalities. Journal of Public Economics, 173, pp.113-124.

Hartshorne, J., 2017. The need for an intrusion upon seclusion privacy tort within English law. Common Law World Review, 46(4), pp.287-305.

Lazar, A., 2018. Home-Sharing in South Australia: Protecting the Rights of Hosts, Guests, and Neighbours. UniSA Student Law Review.

McDonagh, M., 2002. E-government in Australia: the challenge to privacy of personal information. Int'l JL & Info. Tech., 10, p.327.

Nasreen, Z. and Ruming, K.J., 2020. Informality, the marginalised and regulatory inadequacies: a case study of tenants’ experiences of shared room housing in Sydney, Australia. International Journal of Housing Policy, pp.1-27.

Norberg, P.A., Horne, D.R. and Horne, D.A., 2007. The privacy paradox: Personal information disclosure intentions versus behaviors. Journal of consumer affairs, 41(1), pp.100-126.

Schwarz, K., 2020. Secret's out: The truth about Australian privacy law. LSJ: Law Society of NSW Journal, (69), p.38.

Watts, D. and Casanova, P., 2018. Privacy and Data Protection in Australia: a Critical overview.

Cases

[1] Norberg, P.A., Horne, D.R. and Horne, D.A., 2007. The privacy paradox: Personal information disclosure intentions versus behaviors. Journal of consumer affairs, 41(1), pp.100-126.

[2] Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45

[3] Choi, J.P., Jeon, D.S. and Kim, B.C., 2019. Privacy and personal data collection with information externalities. Journal of Public Economics, 173, pp.113-124.

[4] Watts, D. and Casanova, P., 2018. Privacy and Data Protection in Australia: a Critical overview.

[5] McDonagh, M., 2002. E-government in Australia: the challenge to privacy of personal information. Int'l JL & Info. Tech., 10, p.327.

[6] Carron, X., Bosua, R., Maynard, S. and Ahmad, A., 2016. The Internet of Things and Its Impact on Individual Privacy: An Australian Privacy Principle Perspective. Computer Law & Security Review, 21(1), pp.4-15.

[7] Schwarz, K., 2020. Secret's out: The truth about Australian privacy law. LSJ: Law Society of NSW Journal, (69), p.38.

[8] Lazar, A., 2018. Home-Sharing in South Australia: Protecting the Rights of Hosts, Guests, and Neighbours. UniSA Student Law Review.

[9] Hartshorne, J., 2017. The need for an intrusion upon seclusion privacy tort within English law. Common Law World Review, 46(4), pp.287-305.

[10] Grosse v Purvis [2003] QDC 151.

[11] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR 199

[12] Nasreen, Z. and Ruming, K.J., 2020. Informality, the marginalised and regulatory inadequacies: a case study of tenants’ experiences of shared room housing in Sydney, Australia. International Journal of Housing Policy, pp.1-27.

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