2016 The Full Bench Ed 1

Dont' you forget about me

A workplace and privacy survival guide

Judgement Day

Bianca Newton

Catherine Nejaim

Erin Finch

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T FB 2 0 1 6 Edition One The Price of Privacy

E D I T OR I N C HI EF Bianca Newton

E D I T OR S Taylah Mihell Claudia Neal-Shaw Juanita Truong Kate Kemp Kimberly Tran

D ESI GN ER Joy Li

SPEC I AL T HAN KS Bryce Craig (President) Richard Heng (Vice President)

U TS L AW STU D E N T’ S SOC I E T Y © This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers.

FUR T HER T HAN KS Daniel McKenzie, Susie McKenzie and Co. Kwik Kopy Neutral Bay 6/129-133 Military Rd Neutral Bay, NSW 2089 Tel: (02) 9953 3077 Fax: (02) 9953 0530 www.kwikkopy.com.au

D I S C L AI M E R All expressions of opinion published in TFB are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest.

The Full Bench (tfb) is published tri-annually in Sydney by:

I M AG E S AN D I L L U STRAT I O N S

UTS Law Students’ Society PO Box 123 Broadway NSW, 2007 Room CM5A.01.08, City Markets Campus, Cnr of Quay Street & Ultimo Road

All images, unless provided by the designer or commissioned by the TFB for the purposes of this publication, were sourced from royalty-free photo sharing websites, licensed under Creative Commons Zero.

Tel: (02) 9514 3448 Fax: (02) 9514 3427 www.utslss.com

Contents •

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D O N ' T Y O U FOR GE T AB OUT ME

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T HAT ' S M Y R I GHT T O PR I VAC Y Y O U' R E T ALKI N G AB OUT

Bianca Newton

Christina Knezevich

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T O T R E SPASS O R N O T T O T R E S SP A SS

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A WO R KPLAC E AN D PR I VAC Y SUR VI VAL GUI D E

Taylah Mihell

Catherine Nejaim

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D AT A R ET AI N E D , C I T I ZE N D ET A INED

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AGE O F C OUN T E R -T ER R OR I SM A ND T HE C R EAT I O N OF B I G B R OT HER

Dominic Smith

Charlotte Regan

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CO NT E N TS

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I T ' S ON LY FOR M E, PR OMI SE

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I T I S N ON E OF Y OUR B USI N E SS ...

OR I S I T ?

Nicola Colagiuri

Kate Kemp

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FRO M TH E U TS L SS

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E DIT O R I AL

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E DIT O R ' S Q U E S TI O N

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10 W O R D S O R L E S S

President and Vice President's Address

Bianca Newton

Should a Tort exist for breach of privacy?

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PR I VAC Y AN D T HE N OT SO SAFE HAR B OUR Jonathon Hetherington

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ST OP. HAMMER T I M E

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JUD GE M EN T D AY

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C O ST A' S C OMI C

Sharni Nichols v. Katie Latimer

Erin Finch

CONT E N TS

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From the UTS LSS •

B R Y C E C R AI G President

R I C H AR D H E N G Vice President (Education)

Salutations! I extend to you a very warm welcome as you flip through the pages of this magazine. This wonderful edition of The Full Bench will delve deep into the realm of privacy by attempting to answer some very crucial questions: What is privacy? Where are the boundaries set? Who defines these boundaries? And most importantly, how is it protected, if even at all?

What constitutes a public and private matter is turbid to say the least. Without putting too much blame on the obvious culprits – globalisation, advancement of technology and the prevalence of social media – these factors contribute greatly to the pervasion of our once sacred spaces. Ironically, our yearning for privacy is mirrored by our insatiable desire to over-share, whether it be what we had for breakfast; what we are wearing on a particular day; or how we feel about the Kardashians.

What’s even more interesting is that laws put in place to protect our privacy garner polarising opinions. Would you see Orwell’s infamous dystopia come to life? Or do you see it as a necessary evil?

Regardless of how you feel, privacy is an everpresent issue that requires immediate attention. So I implore you to flick through these pages with these glaring questions in mind, as our contributors and editors have done an overwhelming job in revealing all that’s behind closed doors.

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TH E F U L L B E N C H

Welcome to the first edition of The Full Bench 2016, the official academic journal of the UTS Law Students’ Society (UTS LSS).

Over the years, The Full Bench has maintained a commitment to quality academic content and has offered law students a platform from which to voice their valued opinions and share their knowledge on a range of topical issues facing the legal world. In 2016, we have looked at making positive changes to how we structure and deliver this fantastic publication to ensure that it remains relevant and well read by our members in the future. Accordingly, we have decided to publish The Full Bench on a tri-annual basis and widen our digital approach to create a stronger online presence that is engaging and more accessible to our readers.

The first edition of The Full Bench, ‘The Price of Privacy’, focuses on a topic that has an increasing relevance in a legal context and one which directly affects us every day through the decisions, transactions and interactions we make. The right to privacy has long been compromised by the rhetoric of ‘if you’ve got nothing to hide, you’ve got nothing to fear’. But now we are seeing the idea play out in a more digital, globalised and interconnected context than ever before, the results of which are truly fascinating and at times truly troubling.

The quality of this edition comes from the work of an incredibly talented team. First and foremost, I’d like to thank our Publications Director, Bianca Newton, for her tireless efforts in piecing together each and every element of this beautiful publication. I also thank Richard Heng, our Vice-President of Education, for his insight and support, as well as the entire Education Publications subcommittee for their great contributions. The stunning visual design throughout has had our team lost for words and is the work of the talented Joy Li, who we wholeheartedly thank for lifting the profile of The Full Bench to new heights. Lastly, I would like to thank our contributing members for their fantastic articles and insights that give this publication its academic heart.

I hope that this edition gives you an opportunity to expand your knowledge in this space and start important conversations with your peers.

Editorial •

“So long as the laws remain such as they are today, employ some discretion: loud opinion forces us to do so; but in privacy and silence, let us compensate ourselves for that cruel chastity we are obliged to display in public” —Marquis de Sade

B I AN C A N E WT O N Editor in Chief

W E LC O M E TO T H E F I R ST E D I T I O N O F T H E F U L L B E N C H FO R 2 0 1 6 !

As a result of the implementation of the new metadata laws and increased discussion on other matters of privacy including the controversial topic of revenge porn, people have begun to question the law’s relationship with privacy. For those who are going to or have already studied Torts, you might remember that there is no statutory definition of privacy in Australia as per the Australian Law Reform Commission’s inquiry in 2007. This often means that the legal protections already in place in the form of the Privacy Act 1988 and related laws can fall short of ensuring the protection of an individual’s privacy. This has become clearer in the digital age with the emergence of new technology and new forms of communicating. The ALRC’s report, ‘For Your Information’, recognised the shortcomings of current legislation in this area after conducting substantial research that demonstrated the importance of privacy to the Australian person and concluding with suggestions for a move toward a new statutory tort for serious invasions of privacy. This edition of TFB will discuss this suggestion in greater detail and delve further into matters of privacy that are either being invaded or desperately need invading.

Our contributors have produced eye-opening and informative pieces for our readers. Very much in the spotlight last year, Dominic Smith reports on the effects of metadata retention laws on the Australian public,

while our own previous Publications Director Nicola Colagiuri comments on the importance of laws to curb the sudden fascination with revenge porn. Furthermore, this year, some students have decided to get a bit creative with their views on privacy by submitting a humorous case note or entering their thoughts to our new Judgment Day section.

As with the publication of any UTS LSS piece, there are many people to thank for their contributions and creative efforts. Without the dedication of students, TFB would hardly exist! Firstly, we would like to thank the UTS LSS President, Bryce Craig, and the Vice President (Education), Richard Heng, for their unwavering support and assistance. Secondly, without the help of the incredible Joy Li, the aesthetics of TFB would be sorely lacking! As our wonderful designer for this year, we extend our gratitude for her endless hours of work.

Be sure to ‘Like’ The Full Bench on Facebook to keep up-to-date with all TFB related news and ways to be involved with TFB this year!

It is often said that the law, especially on an international level, is the greatest mechanism for change.

That is not in contention. What is in contention is whether this is being utilised positively or negatively.

In reading our first edition, we hope that you will be promped to reflect on your own opinions of privacy and the law that governs it.

EDITORI AL

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E D I TO R ’ S Q U E S T I O N

Q: Should a tort exist for breach of privacy?

BIA NCA NE W TO N Editor in Chief

•

J U A N I T A T R UO N G

Should a tort exist for breach of privacy?

I would like to say yes, but the lawyer in me says no. When studying tort law in my second year, I distinctly remember our tutor telling us that the law will attempt to refrain from restricting the everyday person as much as possible. This is evident as the judicial commentary to date on this matter has been scarce with only two decisions being upheld in court; ABC v Lenah Game Meats Pty Ltd [2001] HCA 63, and Jane Doe v ABC & Ors [2007] VCC 281. The view held by the ALRC, whilst in favour with initiating a tort for breach of privacy, demonstrated the potential conflict between the right to privacy as an individual right and the public interest in allowing freedom of expression in an open and democratic society.¹ As the Finkelstein Report alluded to in 2012, changes to the existing law could make it close to impossible for journalists and the like to collect their stories and conduct interviews.² In a democratic society such as ours, empowered by free flowing information, is our privacy in such danger that we need to create a new tort?

Editor

T AY LAH M I HELL

♦

Editor

¹ Australian Law Reform Commission, For Your

Information: Australian Privacy law and Practice, Report No 108 (2008). ² Ainslie Van Onselen, ‘Push for a tort is misguided and wrong’, The Australian (online), 21 September 2012 <http://www.theaustralian.com.au/business/legalaffairs/push-for-a-tort-is-misguided-and-wrong/storye6frg97x-1226478381752>.

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TH E F U L L B E N C H

With our digital footprint being increasingly easier to track, there is a higher risk of having our personal information being hacked. This is evident in the controversial 2011 News International phone hacking scandal in the United Kingdom. In this instance, the progressive need for a tort of breach of privacy to be implemented in Australia is crucial.

It is important for the law to remain attuned to the growing community concerns over privacy in this digital age.

Unfortunately, Australia is behind the rest of the world when addressing the issue regarding serious invasions of privacy. Other countries such as Canada, New Zealand and the United Kingdom, have already developed similar privacy protections.

Despite numerous recommendations made by the Australian Law Reform Commission (ALRC) since 2008, Australia has yet to introduce a tort for invasion of privacy.

Though the main opposition against introducing a privacy tort is the possibility of curtailing the freedom of speech, legal protection for privacy remains important.

It is within the public interest to consider introducing a privacy tort in order to allow individuals within the community to seek appropriate remedies such as compensation for serious breaches of privacy.

♦ The adequacy of the law, generally, to deal with cases concerning breach of privacy is why I think that introducing a statutory tort of privacy breach in Australia is not strictly necessary. The current mechanisms for dealing with privacy breach, such as the tort of breach of confidence, the Privacy Act, statutory provisions and equitable actions available to the Court, are generally sufficient in providing victims of privacy invasion with adequate remedies.

These laws generally balance the ideals of protecting an individual’s privacy with the public interest by protecting free speech and press. Creating a tort specific to invasion of privacy may negatively skew the balance between these important ideals. In instances where invasions of privacy are not regulated by statute or unable to be remedied by the breach of confidence tort, there should be changes to the law to accommodate such breaches; this is particularly important as advances in technology increase the chances of an individual’s privacy being violated.

Regarding how these changes should be made; amending existing laws is a more adaptable approach than creating a new tort, whose potential negative ramifications do not outweigh its perceived benefits.

C. S LEW I S ON CE S AI D, ‘ W E L IVE, IN FACT , I N A W ORLD S T ARVED FO R S OLI T U DE , S I LE N CE, AN D PR IVATE.’ S U CH A S T AT EMEN T S E E MS HIGHLY APPLI CAB LE T O T HE AU S T RA LIAN S OCI E T Y W E LI VE I N T ODAY .

KAT E KE M P Editor

CL A U D IA N E AL - SH AW Editor

♦ The fact that Australia is the only country not to have a legally recognised invasion of privacy is hard to ignore. I may not be Jennifer Hawkins with a multi-million dollar home being invaded by drone paparazzi, but we are all likely to have experienced discomfort or concern about our privacy being violated. It could be the all-confessing love letter you sent to your admirer or a photo of you looking not-sohot at the Haymarket Woollies•these items can be damaging to both your personal and professional life when placed in the wrong hands.

The Australian Law Reform Commission proposes remedies against the ‘extreme invasion’ of privacy only protecting those with demonstrably high-level cases of privacy violation. Whilst this suggests progression, the protection of those individuals with experiences of significant but not ‘extreme’ cases of privacy invasion will suffer. With competing interests from political figures like the Attorney General, George Brandis who coins this proposal ‘a Fabian-like erosion of traditional rights and freedoms’, its success as an ongoing legal mechanism will be challenging. However, our progressively digital age makes these violations easier to make and harder to successfully regulate.

♦ C.S Lewis once said, ‘We live, in fact, in a world starved for solitude, silence, and private.’ Such a statement seems highly applicable to the Australian society we live in today.

The wave of technological advancement that has occurred over the last 20 years has led to large amounts of personal information being collected and stored online and, until recently, very little has been done to update Australia’s privacy laws. As a result of this privacy invasion, identity theft and privacy leaks are becoming increasingly prominent legal issues. And despite the recent updates, Australia still appears to be lacking in adequate legal remedies to support those who have been wronged.

Hence, it is undoubtedly time for Australia to adopt a tort of privacy to protect those who are wronged by privacy invasion. The absence of a privacy definition in Australia and the potential conflicts that could arise from introducing such a definition could make it difficult for a ‘tort of privacy’ to be introduced without some legal upheaval.

Many legal professionals feel that the required legal upheaval may be unnecessary and compromising other rights which we hold dear. However, is the cost of privacy really too high? I think not. It’s time that Australia took a stance against privacy invasion and provide the means for wrongs to be righted.

KI MB ER LY T R AN Editor

♦ Phone hacking, intrusions and misuse of private information are examples of why there is a need for a tort of privacy in order to increase transparency. Australian Broadcasting Corporation v Lenah Games Meat Pty Ltd [2001] HCA 63 provided a new impetus for a tort for invasion of privacy to be developed in Australia in which personal information and recovery of compensation could be done effectively.

However, the concerns that must be considered are the tensions between public interest and privacy, which may possibly infringe on one’s human rights. Some litigants are reluctant to risk lengthy and costly proceedings and appeals arguing, what some might call, a novel point of law.

Therefore, the possibility of introducing a privacy tort should be assessed on the gaps and deficiencies found within the current legal framework. Some may argue it is not necessary since criminal law will deal with phone hacking, including defamation, to protect individuals. The tort of breach of privacy should be serious and outweighs public interest. However, it should only be confined to intentional or reckless invasions of privacy.

EDIT OR’S RES PON S E

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10

Words or

@Eric Law

Technological advancement would one day mark the end of privacy.

Less

@Mat Velcic

‘Selfie’ has become a part of our everyday vocabulary, Facebook newsfeeds are littered with Instagram ‘brekkie with friends’ snaps and our Twitter accounts record our political views. These are the details, once told to those we know and trust, that we share with the world.

@Kate Sammut

As the ‘technology generation’, we know how this stuff works, but do we understand the ramifications? It is no secret that there has been debate surrounding the introduction of a new tort for invasion of privacy in an attempt to update legislation in this area, but is this the solution?

Is the technological advancement damaging our right to privacy or could it be blamed on the lack of appropriate legislation?

Slow changing, ineffective legislation is as appropriate as no legislation.

Definitely technological advancement - there’s no way legislation can keep up! @Rosie Cotton

Legislation needs to adapt to make way for societal changes. @Bianca Newton

The Law needs to ensure basic human rights are protected! @Samantha Jeffrey

Our generation is bearing witness to technology’s eradication of privacy. @Taylah Mihell

Technology invades our privacy and reactive legislation may not assist. @Jake Bailey

The law can and must keep up.

We need reform!

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TH E F U L L B E N C H

Don’t you forget about me…

W R I TTE N B Y Bianca Newton

Wouldn’t it be nice to write an email to a colleague or take a selfie to send to a friend and know that it wouldn’t be stored somewhere, just waiting to (potentially) be used against you? Bianca Newton delves into the introduction of Australia’s privacy laws to explore how we got to this point.

ARTI AR TICLE S

09 9

“

Robert Browning once said, ‘I give the fight up: let there be an end, a privacy, an obscure nook for me. I want to be forgotten, even by God.’ I am not a famous poet nor have I reached the point where fighting is no longer an option, but this wish once expressed by Browning can now be read as farcical.

Nothing is forgotten.

In contemporary society, privacy is hard to come by.

In his analysis of Australian Privacy Law, David Lindsay states that concern with privacy first began in the US with an article written by Samuel Warren and Louis Brandeis in 1890.¹ The concern sprouted from the understanding that the advancement of technology would result in new norms such as increased surveillance. The two authors were especially concerned with the effects new technologies would have on journalists as ‘practices made possible by hand-held cameras could be seen as objectification of individual identity.’² This anxiety has not been extinguished.

This point is reiterated by Justice Michael Kirby, who argues, ‘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 Thus, laws had to be created to protect privacy, as a response to ‘crises in the deployment of technologies and associated techniques of social control.’⁴ But what is privacy?

As was mentioned earlier in this edition, Australia has no legal definition of privacy. It is because of this inability to distinguish privacy from other competing rights and interests such as freedom of speech or protection of revenue, that ‘law-makers are unable to

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In contemporary society, privacy is hard to come by.

develop a coherent regulatory framework within which to place the right to privacy’.⁵ What stands in its place is the Privacy Act 1988 (Privacy Act). This Act gave effect to Australia’s agreement to implement the Organisation for Economic Cooperation and Development (OECD) Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, as well as to its obligations under Article 17 of the International Covenant on Civil and Political Rights. It was passed with the intention of protecting personal information in the possession of Australian Government agencies and implementing safeguards for the collection and use of tax file numbers.

While there have been developments to this legislation over the decades, the ALRC’s investigation into possible improvements has demonstrated that while working well to date, the Privacy Act must be refined to bring it up to date with the information age.⁶ The suggestions and debate surrounding the future of privacy law in Australia will be covered further in this edition by Christina Knezevich.

Australian citizens would like to believe that ‘a privacy’ is possible and that small piece for ourselves can be adequately protected with the force of the law.

Thus, despite continual technological advancements, it can be argued that privacy is still an important human right worth fighting for. ¹ David Lindsay, ‘An Exploration of the Conceptual Basis of Privacy and the Implications for the Future of Australian Privacy Law’ (2005) 29

Melbourne University Law Review 140. ² Ibid. ³ Justice Michael Kirby, ‘Privacy in Cyberspace’ (1998) 21(2) University of

New South Wales Law Journal 323.

4

David Lindsay, above n 1.

5

Carolyn Doyle and Mirko Bagaric, Privacy Law in Australia (Federation

Press, 2005) 5.

6

Australian Law Reform Commission, For Your Information: Australian

Privacy law and Practice, Report No 108 (2008).

That’s my right to Privacy you’re talking about! ♦

Following on from the previous article, Christina Knezevich takes a look at some significant cases in which the right to privacy has been affected and whether it should have been.

W RIT TE N B Y Christina Knezevich As Bill Gates reflected, ‘Historically, privacy was almost implicit, because it was hard to find and gather information. But in the digital world, whether it’s digital cameras or satellites or just what you click on, we need to have more explicit rules.’

The recognition of a general right to privacy deserving of legal protection is a relatively contemporary phenomenon,¹ galvanised by advances in intrusive technologies that invade traditionally personal boundaries. Whereby technological advancements and societal expectations have rapidly developed to appreciate the significance of privacy, the law has lagged. In Australia, no jurisdiction has enshrined in legislation a cause of action for invasion of privacy but the legal discussion for such development has been revived in recent judicial decisions. However, the expansion of the privilege of personal privacy must be adequately balanced by the public interest.

The right to privacy has had limited consideration in Australian’s courts, namely the landmark Victoria Park Racing and Recreation Ground Co Limited v Taylor² and Australian Broadcasting Corporation v Lenah Game Meats.³ The majority judgement of Latham CJ observed, ‘However desirable some limitation upon invasions of privacy might be, no authority was cited which shows that any general right of privacy exists.’ ⁴ This comment was interpreted unequivocally determining no such right exists, stifling further discussion about a tort of invasion of privacy in Australia’s legal sphere.

Instead, dexterous legal arguments have been used to serve the purpose of upholding privacy by manoeuvring the confines of defamation laws. In Ettingshausen

ARTI CLE S

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♦

♦

♦

v Australian Consolidated Press Ltd,⁵ a prominent of privacy, and; whether the invasion of privacy would sporting figure was unwittingly photographed in be highly offensive to a reasonable person.¹² This would full frontal nudity. These photos were published in form a valuable safeguard to prevent the abuse of privacy newspapers yet Kirby J opined that ‘whilst the value laws at the expense of the common good and uphold the of privacy protection may generally inform common current capacity for freedom of speech. Additionally, a law developments, it would not be proper to award Mr defence of public interest has been proposed. Whereby Ettingshausen compensation for the invasion of his the actions would not be rendered an unlawful invasion privacy.’⁶ Although Ettingshausen used settled causes of privacy, it constitutes a matter of public interest, of action, Callinan J has criticised the need to distort analogous to those used with anti-discrimination laws.¹³ the law for a gross intrusion Legislative provisions likewise which should have been able to I T H A S B E E N P RO P O S E D T H AT inadequately addressed the legal be deterred and redressed by a chasm of privacy protection in T H E O B J EC T I V E T E ST C A N Australia’s laws, as the Privacy more appropriate form of action.⁷ B E U T I L I S E D I N E VA LUAT I N G Act 1988 (Cth) fails to provide Lenah, wherein the High W H E T H E R T H E R E WA S A Court readdressed the question effective statutory protection.¹⁴ R E A S O N A B L E E X P EC TAT I O N of the protection of privacy in The perpetually eroding O F P R I VAC Y, A N D ; W H E T H E R Australian law, reignited the status of the right to privacy in T H E I N VA S I O N O F P R I VAC Y modern society has debilitating right to privacy. In the majority, Gleeson CJ accepted that ‘the WO U L D B E H I G H LY O F F E N S I V E implications. With technological law should be more astute than innovations increasingly mountTO A R E A S O N A B L E P E R S O N . in the past to identify and protect ing an attrition of the personal interests of a kind which fall within the concept of and the private, it is paramount that Australia’s privacy privacy,’ ⁸ reopening the potential for a tort of invasion laws are expanded to give concrete protection of of privacy. The dissenting judgement of Callinan J was this right to privacy. Whilst it may be perceived, this diminishes freedom of speech and vital security most fervent in endorsing the legal recognition of a tort concerns, a measured and deliberate approach to of invasion of privacy.

Trepidation persists about implementing a tort of implementing right to privacy with specific safeguards invasion of privacy hinging on two primary concerns: for matters of public interest unites the competing interests of both. Therefore the confrontation of firstly, that privacy has no universal definition and liberties—the right to privacy against the right to functions as an abstract generalisation;9 secondly, that any advancement in protecting privacy necessarily access—is not so irreconcilable. infringes on the public interest, notably free speech.¹⁰ The Australian Law Reform Commission has ¹ Ruth Gavison, ‘Privacy and the Limits of Law’ (1980) 89 Yale Law Journal 421, 465. considered Australia’s privacy laws on several occasions. ² (1937) 58 CLR 479 (henceforth Victoria Park).

Addressing the first concern, it has suggested that ³ (2001) 208 CLR 199 (henceforth Lenah) privacy may be divided into distinct but related concepts 4 Victoria Park Racing and Recreation Ground Co Limited v Taylor (1937) of information privacy, bodily privacy, privacy of 58 CLR 479, 496.

5 (1991) 23 NSWLR 443. communications and territorial privacy.¹¹ Despite 6 Ibid 15. the multifarious definitions confounding a clear legal 7 Ian Callinan, 'Privacy, Confidence, Celebrity and Spectacle' (2007) 7 scope, the nature and characteristics of privacy can still Oxford University Commonwealth Law Journal 1, 4.

8 Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 be ascertained and applied.

CLR 199, [39].

Moreover, an incremental expansion of the law 9 Ibid (Gleeson CJ, Gummow and Hayne JJ). to protect against the invasion of privacy posed no 10 Ibid (Gleeson CJ). tangible threat to public concerns. Underpinning this 11 Australian Law Reform Commission, Review of Australian Privacy Law is the conceptualisation that privacy is inversely DP 72 (2007), 114.

12 Australian Law Reform Commission, For Your Information: Australian proportional to the public interest. However this overPrivacy Law and Practice 108 (2008). simplification undermines the capacity for nuance in 13 Notably the protections outlined in s 18D in response to the the law to accommodate competing protections. It has restrictions of s 18C of the Racial Discrimination Act 1975 (Cth). been proposed that the objective test can be utilised in 14 Australian Law Reform Commission, For Your Information: Australian evaluating whether there was a reasonable expectation Privacy Law and Practice Report No 108 (2008).

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TH E F U L L B E N C H

To Trespass or Not to Trespass...

That is the Question.

For those who have taken Torts, this case should stand out.

Our own Taylah Mihell has gone back through her class notes and found the funny side to an unfortunate incident concerning a garden shed. Note: you have been warned!

LAW OF TRESPASS TO LAND

W RIT T E N BY Taylah Mihell

Very Authoritative Case Note: Finders v Keepers [1995] NSWLR 65.

Parties:

Location:

v.

S T E PHE N F I N D E R S

ALAN KEEPE R S

GAR D E N SHED

Plaintiff

Defendant

54 Pleasant Street

Evidence:

Exhibit a. Pruning Shears

Exhibit b. Gardening Gloves

Facts: Stephen Finders, plaintiff and registered owner of 54 Pleasant Street, was a negligent and lazy gardener. He did not enter the garden shed on his property for over six months. Upon being insulted by his neighbor re. the state of his petunias, Stephen entered his garden shed to locate hedge clippers, gardening gloves, pruning implements, etc.

Upon entering his garden shed Stephen was shocked to find the defendant, Alan Keepers, re-organising his tool collection and making a cup of tea. It became apparent Alan had been living in the garden shed for a period of 3 (three) months. Upon being told to leave by Stephen, Alan immediately did so (he had run out of milk anyway, and confrontation made him queasy).

Primary Issue:

Exhibit c. Cup of Tea

Exhibit d. Tea-stained Note

Trespass to land is a voluntary, intentional (or negligent) direct physical interference with the plaintiff’s excusive possession of land. By living in Stephens garden shed, did Alan commit the tort of trespass?

It was clear that Alan had voluntarily and intentionally made direct physical interference with Stephen’s land. Additionally, Stephen did not explicitly remember giving permission for Alan to live in the garden shed, though he did vaguely recall an agreement they had a few months earlier in which Alan said he would ‘stay and fix up the shed’.

Alan argued the agreement between the pair constituted permission from Stephen to stay in the garden shed as long as he was ‘fix[ing it] up’. Upon inspection of the garden shed it was clear Alan had indeed done a swell job fixing up the interior of the shed. The half-painted ceiling indicated the fixing up process had not been completed.

With the onus on Alan to prove the agreement that allowed him to remain on Stephen’s land had occurred, Alan produced a tea-stained note in Stephen’s handwriting that stated the terms of their agreement, which Stephen acknowledged.

Primary Issue - held: Alan did not commit trespass to land as he had gained permission to remain on Stephen’s land and when this permission was withdrawn, had immediately done so. Had Alan not had permission to be on Stephen’s land, or not immediately left after having this permission revoked, he could be liable for trespass.

Ratio: Trespass occurs where a party voluntarily and directly enters another’s land without permission, or stays on the premises even when permission is revoked. Further, visiting one’s garden shed once in a while and clearly communicating with eccentric acquaintances with a penchant for tidying will almost certainly ensure one avoids messy legal disputes.

ARTI CLE S

13

A WORKPLACE & PRIVACY N°. 1

-

SURVIVAL GUIDE

-

Catherine Nejaim

Ever made a comment on Facebook about your boss? Or perhaps you thought about getting yourself an account on LinkedIn? Catherine Nejaim delves into workplace privacy rights and learns it is better to be safe than sorry.

indicate: the kind of surveillance to be carried out (camera, computer or tracking); how the surveillanc will be carried out; when the surveillanc will begin; whether the surveillance will be continuous or intermittent and whether the surveillance will be a limited or ongoing period.²

IN TR O DU CT IO N With recent technological advances and the dawn of the social media age it is easier than ever before for employers to monitor their employees’ activities in the workplace.

However, given the great disparity of power between employer and employee and the potential for around-the-clock surveillance, the risk of abuse of such technologies and consequently an invasion of employee privacy, is both real and significant.

It is therefore paramount that employees make themselves aware of their rights and the law in relation to privacy in the workplace, not only to guard against an invasion of privacy by their employer, but also to ensure they themselves do not breach their contractual obligations in this domain.

This survival guide will explore some of the common privacy issues facing employees in the workplace including surveillance, drug and alcohol testing and social media.

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THE FULL BENCH

S U RVE I L L AN C E In recent years, technological advances including global positioning systems, listening devices, computers, mobilephones and biometric technology, have seen the spectrum of surveillance options available to employers drastically increase.

Consequently, it is essential that employees make themselves aware of their rights in relation to surveillance in the workplace, to ensure that their privacy is protected.

Within Australia, there is no single electronic surveillance or monitoring legislation, rather, each state and territory is governed by its own surveillance legislation.

In NSW, workplace surveillance is regulated under the Workplace Surveillance Act 2005 [NSW] (WSA), providing the relevant requirements and restrictions in relation to both covert and overt camera, computer and tracking surveillance.

Under the WSA, employers are required to provide prior notice to employees in writing 14 days before commencing any form of surveillance.¹ Such notice must

Video surveillance In regards to video surveillance, cameras must be clearly visible and signs must also be present at the entrance of the premises, notifying individuals of the fact that they may be under surveillance.³

Computer surveillance Employers are entitled to monitor companysupplied computers and mobile phones where such surveillance is carried out in accordance with the relevant legislation and under a computer surveillance policy of the employer. Employees must be notified of the policy in advance and in such a way that it is reasonable to assume that the employee is aware of, and understands the policy.⁴

Workplace & Privacy

-

SURVIVAL GUIDE

-

Catherine Nejaim

• dishonesty in relation to either ingesting drugs, alcohol or the testing process itself;¹⁰ • refusing to undergo drug and alcohol testing where an employment contract expressly requires an employee to comply with a drug and alcohol policy;¹¹ and • deliberately tampering with samples produced for drug and alcohol testing.¹² Covert legislation Covert surveillance refers to the surveillance of an employee while at work but without notification.⁵ While covert legislation is generally prohibited, such surveillancing may be undertaken by an employer where unlawful conducted is reasonably suspected on behalf of an employee or employees, and an order authorising such surveillance has been acquired by a court surveillance authority (e.g. a magistrate).⁶

Private conversations & telephone monitoring The WSA does not apply to surveillance by means of a listening device. Generally, each territory and state has additional legislation prohibiting the use of listening devices to listen or record private conversations to which the user is not a party to and where consent has not been obtained (e.g.

Surveillance and Devices Act 2007 [NSW]).

Additionally, telephone communications, including mobile phones, is governed by the Telecommunications (Interception and Access) Act 1979 [Cth]. Under the Act, employers are prohibited from listening or recording communications passing over a “telecommunications system” without the consent or knowledge of the parties involved.

D R U G AN D ALC O HOL T EST I N G Within Australian workplaces it has become common practice to test employees for drugs, alcohol and/or other substances with the ability to affect and impair employee performance, and therefore safety.

The right of an employer to insist on drug and alcohol testing, although an obvious intrusion of employee privacy, has been justified under Work Health and Safety legislation. This has resulted from the legal requirement imposed on employers to minimise the significant health and safety risks drug and alcohol induced impairment pose. Consequently, many workplaces have implemented drug and alcohol policies and introduced drug and alcohol testing provisions in employment contracts, modern awards and enterprise agreements.

Under common law, an employer can direct an employee to undergo drug and alcohol testing where the request is “reasonable”. Such a request will be deemed unreasonable where drug and alcohol testing is conducted for reasons other than on health and safety grounds.⁸ Misconduct in relation to drugs and alcohol testing can have serious impacts on an individual’s employment. Numerous decisions have found that an employee can be lawfully dismissed for: • failing a drug and alcohol test⁹

While employers do not have the right to dictate what alcohol or drugs employees take in their own time, employers do have both the right and obligation to enforce workplace drug and alcohol policies. Subsequently, in a number of recent decisions, the Fair Work Commission (FWC) has upheld the dismissal of employees for failing drug and alcohol tests, despite a lack of evidence demonstrating that the employee was in fact impaired at work.

Case Example In Harbour City Ferries Pty Ltd v Christopher Toms,¹³ a Full Bench of the FWC held that a ferry master who had tested positive for marijuana after a crash had not been unfairly dismissed. While there was no evidence suggesting that the employee was impaired by the drug use at the time of the accident, or that such drug use caused the accident in question, the Full Bench upheld the employer’s zero tolerance approach to drug use. The Full Bench found that the employee engaged in serious misconduct when the employee agreed to take a shift after having smoked marijuana. The Full Bench considered the employee’s actions constituted serious misconduct in the ‘deliberate disobedience, [by] a senior employee of a significant policy’.

ARTI CLE S

15

Workplace & Privacy

SOCI A L M E DIA Facebook, Twitter, Instagram, LinkedIn —whilst the dawn of the social media age has provided a new platform for employers to grow and promote their businesses, the growing popularity of social media sites has also posed a significant threat to employee privacy.

Following a recent increase in the number of unfair dismissal cases concerning social media misconduct in the workplace, employees should take considerable care before posting material in relation to their employment or colleagues on social media.

In Fitzgerald v Dianna Smith t/a Escape Hair Design [2010],¹⁴ the FWC warned, ‘Posting comments about an employer on a website (Facebook)… is no longer a private matter but a public comment. It is well accepted that behaviour outside working hours may have an impact on employment’.

While many employees may be under the impression that their privacy is protected by the various privacy settings available on social media sites, unfortunately this is not the case. In a number of recent decisions the FWC has held that even where an employee’s social media posts are ‘private’, an employee may still be lawfully dismissed where they have posted content on a social media site that is: • highly offensive or derogatory towards the employer; and/or • has the potential to cause serious harm to the business.

16

THE FULL BENCH

-

SURVIVAL GUIDE

-

Case example In O’Keefe v Williams Muris Pty Ltd T/A Troy Williams The Good Guys,¹⁵ an employee was dismissed after posting comments on Facebook describing his employer as ‘f*cking useless’ and threatening ‘c**ts are going down tomorrow’ after he became disgruntled over a pay dispute. While the employee argued that his Facebook page made no reference to the employer and his account was set to private, the FWC held that the employee had not been unfairly dismissed.

Catherine Nejaim

in competition with a former employer, soliciting clients or staff and misusing confidential information of the employer.

While workplace privacy is a forever evolving issue facing Australian workplaces, the author hopes employees feel confident armed with this trusty survival guide, to actively take steps to ensure their privacy is protected. ¹ Workplace Surveillance Act 2005 [NSW], s10(1) and (2). ² Ibid, s10(4). ³ Ibid, s11.

4

Ibid, s12.

5

Ibid, s3.

6

Ibid s19; s23.

7

Australian Federated Union of Locomotive Engineers v

State Rail Authority of New South Wales (1984) 295 CAR 188, 188-193.

8

Ibid.

9

McCarthy v Woolstar Pty Ltd [2014] FWC 1186.

10

Vaughan v Anglo Coal (Drayton Management) Pty Ltd

[2013] FWC 10101.

11

Briggs v AWH Pty Ltd [2013] FWCFB 3316.

12

Ruddell v Camberwell Coal Pty Ltd t/a IntegraOpen

Cut Mine [2010] FWA 8436.

13

Harbour City Ferries Pty Ltd v Christopher Toms [2014]

FWCFB 6249.

14

Fitzgerald v Dianna Smith t/a Escape Hair Design [2010]

FWA 7358.

15 O’Keefe

v Williams Muris Pty Ltd T/A Troy Williams The

Good Guys [2011] FWA 5311.

LinkedIn The ‘business-oriented social networking site’ LinkedIn, also poses a significant threat to employee privacy. While it is common knowledge that employees should be mindful of their online presence as employers often use social media sites in the recruitment process, many employees are unaware that who they “connect” with, is also being monitored by past and present employers.

Using LinkedIn as an example, employees should take considerable care when using the networking site to “connect” with clients and colleagues of present and former employers. Such activity may likely breach an employee’s implied contractual obligations and/or restraint clauses, prohibiting employees from engaging

Data retained, U N L E SS YOU HA V E B E E N L I V I NG UND E R A ROCK, YOU HAVE HEARD OF THE METADATA RETENTION L AW S . D O M I N I C S M I T H P R OV I D E S U S W I T H A C O M PA R AT I V E S T U DY O F DATA R E T E N T I O N P R AC T I C E S I N AU S T R A L I A A N D E U R O P E TO A S S E S S T H E S E N E W L AW S .

citizen detained.

WR I T T EN B Y Dominic Smith Data retention refers to the general practice of companies retaining data from its customers in digital repositories, for use in investigative and security matters by government agencies.¹ Although data retention is legitimate for security and investigative matters, this practice has an ongoing effect on the privacy rights of all individuals. With the growth of reliance on online communications devices, the scope of data retention must be limited to specific kinds of data to ensure that they are proportionate to achieving a specific legitimate aim.² In response to privacy concerns, Europe and Australia have addressed the legality of data retention practices differently. In addressing the legitimacy of Australia and Europe’s data retention practices, the first part of this article outlines the scope of data retention and its legitimacy. The second part will assess the Australian and European data retention schemes in accordance with Article 17 of the International Covenant on Civil and Political Rights (ICCPR),³ to determine the proportionality of their interference with the right to privacy.

ART I CLE S

17

What kind of data is being monitored?

Individuals are afforded a legitimate expectation that their personal information will not be used or published by state authorities or companies without prior consent.⁴ Generally, the right to privacy of communications incorporates the security of telephone conversations, emails, online communications and other forms of network communications. However, domestic laws on data retention specify that service providers of these communications methods must retain metadata for national security purposes and use in criminal investigations.⁶ Metadata incorporates information involving the circumstances surrounding a communication – who, when and where.⁷ Although one specific mode of communication may reveal very little information, the data trail that we leave via online and offline sources provides a detailed timeline of our ‘habits, preferences, relationships and social networks’.⁸ By obtaining access to multiple metadata sets, state authorities are able to identify and exclude individuals from investigation without resorting to traditional surveillance methods.⁹ Although metadata retention and surveillance achieves results in a less intrusive manner, knowledge of this personal information raises significant privacy concerns if misused and exploited.

purpose of their data retention programs. Moreover, the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) and the European Directives on Data Protection both address the scope and duration of data retention.¹³ Procedural Safeguards and Review Mechanisms Whilst clear, precise and accessible laws are essential, sufficient independent review and accountability mechanisms must be implemented to prevent and address executive abuse of process.¹⁴ In order to prevent procedural abuses, the Australian Government has granted review powers to the Ombudsman to the Commonwealth and to the Ombudsman in each of the States. Moreover the Government plans to implement ‘a mandatory review of the data retention scheme by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) within three years of the scheme being fully implemented’.¹⁵ Although Australia has developed safeguards, it lacks review from regional human rights mechanisms and may only be reviewed externally by the UN Human Rights Committee, whose decisions are non-binding on Australia. In contrast, European countries have access to domestic, regional and international mechanisms, which provides sufficient independent and external review and scrutiny of the domestic laws of an offending state.

Is Data Retention a legitimate practice?

Proportionality of Data Retention Data retention is not generally prohibited in international law. However Article 17 of the ICCPR¹⁰ restricts states from arbitrarily interfering with their populations’ privacy rights. Consequently, data retention can only be recognised if it is conducted ‘in accordance with law’ and is undertaken proportionately to achieve a necessary and legitimate aim.¹¹ In addressing these issues, this paper will elaborate on the lawfulness and legitimacy of both the Australian and European data retention schemes.

Legislative Guidance on Data Retention For a data retention program to be domestically lawful, the State must develop clear, precise and accessible laws.¹² Therefore, the public must be able to clearly identify the scope and purpose of the data retention practice from an accessible source. In addressing the accessibility issue, both Australia and Europe have developed online resources to outline the scope and 18

THE FULL BENCH

Finally, government data retention is only a valid derogation from privacy rights if it pursues a legitimate aim under democratic rule and achieves this aim using proportionate measures.¹⁶ On the issue of legitimate purpose, both Australia and European nations have claimed data retention serves a purpose of protecting their national security and conducting criminal investigations. While the protection of national security is an internationally recognised purpose, ¹⁷ criminal investigations can only be recognised as legitimate if the data usage is limited to circumstances where retention is ‘strictly necessary’ or there is a direct link to the perpetrators.¹⁸ In pursuing a legitimate security concern or criminal investigation, the practices undertaken must be proportionate and minimally intrusive with individuals’ privacy rights.¹⁹ In accordance with Australian law, service providers must retain all specified metadata for two years for use by law enforcement and security

agencies.²⁰ This practice was rejected by the European Court of Justice in the Digital Rights Case, whereby the Grand Chamber declared EU Directive 2006/24 because data retention indiscriminately affects ‘all persons using electronic communications services’²¹ and the duration was not reduced for irrelevant categories of information.²² Considering this decision, it is arguable that Australia has violated the privacy rights of its citizens because the laws fail to provide adequate limits for different categories of data.

9

Ibid 716.

10

International Covenant on Civil and Political Rights, opened for

signature 19 December 1966, 999 UNTS 171 and 1057 UNTS 407 (entered into force 23 March 1976) art 17. See also Convention for the Protection

of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 8 (‘ECHR’).

11 Ibid.

12

Civil and Political Rights, UN doc E/CN.4/1985/4 (28 September 1984), 10.

13

Telecommunications (Interception and Access) Amendment (Data

Retention) Act 2015 (Cth) s 188AA. See European Union Directive 2006/24.

14

Conclusion: Is data retention lawful?

UN Commission on Human Rights, The Siracusa Principles on the

Limitation and Derogation Provisions in the International Covenant on

A/HRC/27/37, 8-9.

15 Attorney

General’s Department, Data Retention Facts (2015) Australian

Government 1-2, <https://www.ag.gov.au/dataretention>.

Generally, data retention is a legitimate practice, if it is conducted with sufficient procedural safeguards and is sufficiently limited to national security and necessary criminal investigations.²³ Both the Australian and European systems intend to limit the scope of data retention to national security and investigative matters.

Although both systems have procedural safeguards, Australia’s data retention scheme provides lengthy and indiscriminate access to data records and lacks scrutiny from any regional human rights body.²⁴ In contrast, the Council of Europe has implemented ongoing reform to data retention practices to prevent government oversight and abuse of process.²⁵ Since Australia has extended access to all metadata indiscriminately for two years, this paper recommends the implementation of stricter control of data storage to prevent arbitrary breaches to the privacy rights of Australia’s entire population.

16

ICCPR, art 17. See also A/HRC/27/37, 8.

17 International

Convention for the Suppression of Terrorist Bombings,

opened for signature 12 January 1998, 2149 UNTS 256 (entered into force 23 May 2001) art 15 (‘ICSTB’). See also Marko Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56(1)

Harvard International Law Journal 81, 135-136.

18 Digital

Rights Ireland Ltd v Minister for Communications, Marine and

Natural Resources (C-293/12) [2014] ECR I-238, [52]; [58].

19 UN

Human Rights Council, Report of the Special Rapporteur on the

Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin A/HRC/10/3 (4 February 2009) 24.

20 Telecommunications

(Interception and Access) Amendment (Data

Retention) Act 2015 (Cth) sch 1.21 CPR, art 17. See also A/HRC/27/37, 8.

21 Digital

Rights Ireland Ltd v Minister for Communications, Marine and

Natural Resources (C-293/12) [2014] ECR I-238, [58].

22 Ibid

[60].

23 Ibid

8.

24 Telecommunications

(Interception and Access) Amendment (Data

Retention) Act 2015 (Cth) s 188A. 25 Council

of the European Union, Proposal for a Regulation of

the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the

¹ Ian Brown, ‘Communications Data Retention in an Evolving Internet’ (2010) 19(2) International Journal of Law and Information Technology 95, 97-98.

free movement of such data (General Data Protection Regulation), COD 9565/15, Presidency Council (11 June 2015).

² ICCPR, Art 17. See United National Human Rights Office of the High Commissioner, A/HRC/27/37: The Right to privacy in the digital age,

UNGAOR, 27th sess, no. 2 (2014) 4-5 (‘A/HRC/27/37’). ³ International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 and 1057 UNTS 407 (entered into force 23 March 1976) art 17. See also Convention for the Protection

of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 8 (‘ECHR’).

4

Flinkkilä and Others v Finland (no. 25576/04) [2010] ECHR 1, [75].

5

A/HRC/27/37, 6; See also Copland v United Kingdom (no. 62617/00)

[2007] ECHR 253, [39] – [44].

6

Telecommunications (Interception and Access) Act 1979 (Cth) s 187A;

See also European Court of Human Rights, Internet: Case-Law of the

European Court of Human Rights (2015, Council of Europe Publications) 9-10.

7

Attorney General’s Department, Data Retention Facts (2015) Australian

Government 1-2, <https://www.ag.gov.au/dataretention>.

8

Melissa de Zwart, Sal Humphreys and Beatrix van Dissel, ‘Surveillance,

Big Data and Democracy: Lessons for Australia from the US and UK’ (2014) 37(2) University of New South Wales Law Journal 713, 715.

ART I CLE S

19

THE AGE oƒ

Cøunter-terrørism and

THE CREATION oƒ

Big Brother Written by CHARLOTTE REGAN

Who is watching you? In entering the 21st century, both cameras and terrorists have become a part of our lives but it hasn’t been until fairly recently that the two concepts have become intricately linked. Charlotte Regan has taken the liberty of exploring this notion and connecting it with a book written by a Mr. Orwell.

20

THE FULL BENCH

It is no coincidence that George Orwell’s novel ‘Nineteen Eighty-Four’ —a dystopian world under the panoptical control of an infallible leader—is a common reference point for discussions around censorship, privacy, surveillance, totalitarianism and governmental overreach.

Arguably, Orwell’s ‘Nineteen Eighty-Four’ vision has been realised since the events of 9/11. The moral panic surrounding terrorism and a worrying predilection of both sides of government to react by passing numerous packages of counter-terrorism legislation, which many seem unnecessary and extreme, is symptomatic of the features conjured up by Orwell - ‘Big Brother is watching’, a state of perpetual war and domestic political control. In addition, legislative controls have removed protections for journalists and whistle blowers who disclose information, thus undermining the fundamental role of the journalists to watch ‘Big Brother’ and report in the public interest.

Counter-Terrorism Legislation The purpose of security measures and anti-terrorism legislation is fundamentally to protect freedom and human rights, pursuant to Article 6 of the ICCPR.¹ However, the Counter-Terrorism Legislation Amen-dment Bill 2015 (Cth) marks an unprecedented step away from Australia’s human rights obligations by increasing monitoring and surveillance powers and subsuming numerous civil liberties in the name of national security.

Firstly, the Bill introduces new provisions regarding monitoring compliance with Control Orders.² Control Orders under Division 104 of the Criminal Code 1995 (Cth) are designed to impose obligations, prohibitions and restrictions on a person.³ The Bill amends the Crimes Act 1914 (Cth) to introduce a new class of ‘Monitoring Warrant’, which would allow police to enter premises, question and frisk-search people subject to control orders.⁴ The Bill further proposes amendments to the Telecommunications (Interception and Access) Act 1979 (Cth) and the Surveillance Devices Act 2004 (Cth), allowing for the covert interception of telecommunications and the use of covert surveillance devices (including cameras, microphones, data surveillance devices and tracking devices).⁵

Human rights law recognises that covert surveillance may in some circumstances be necessary to protect democracies from the threat of terrorism.⁶ However, covert surveillance can be authorised even if there has been no offence committed or control order breach.⁷ The ubiquity of surveillance and the invasion of privacy reflects Orwell’s narrator Winston Smith: ‘There was, of course, no way of knowing whether you were being watched at any given moment...You had to live...in the assumption that every sound...was overheard and...every movement scrutinized’.⁸ Secondly, the Bill’s proposed amendments to the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) subvert the right to a fair trial protected by Article 14(1) of the ICCPR. For example, the subject of a control order and their legal representative may be denied sufficient information of allegations against them and the evidence adduced.⁹ While, international human rights law recognises that some restrictions, such as a closed trial, are justified to protect national security, it is necessary that enough detail be provided to give a person an opportunity to respond to the allegations.¹⁰ The Human Rights Commission has urged that the Bill be amended so a legal representative or special advocate be included in control order proceedings.¹¹ Arguably, the initiation of Monitoring Warrants and subjugation of the right to fair trial in the name of national security constitutes a march towards a ‘Big Brother’ state.

Who is watching Big Brother?

Orwell’s creation of the ‘Ministry of Truth’, disseminating propaganda and controlling information under the guise of truth, is mirrored by the new provision, s 35P, of the Australian Security Intelligence Organisation Act 1979 (Cth), which curtails the rights of journalists to disclose information about suspected wrongdoing.

The National Security Legislation Amendment Bill (No. 1) 2014 heralded the introduction of ‘Special Intelligence Operations’ (‘SIOs’); covert operations that essentially allow for security agencies to act as ART I CLE S

21

“

Human rights law recognises that covert surveillance may in some circumstances be necessary to protect democracies from the threat of terrorism. However, covert surveillance can be authorised even if there has been no offence committed or control order breach.

a law unto themselves by granting ASIO operatives ‘limited’ immunity from certain civil and criminal offences.¹² Amongst the amendments was s35P, which carries five to ten year jail sentences for disclosing information regarding an SIO. The Bill’s Explanatory Memorandum states that unauthorised disclosure offences ‘are necessary to protect persons participating in an SIO and to ensure the integrity of operations, by creating a deterrent to unauthorised disclosure’.¹³ The contentious issue is whether the measure is necessary and proportional to achieve the outcome.

The necessity for s 35P has been called into question given that laws were already in place to prevent the unauthorised disclosure of information relating to an SIO. These include: intentionally or recklessly causing harm to Australians overseas;¹⁴ treason;¹⁵ espionage;¹⁶ secrecy in the Crimes Act;¹⁷ and secrecy for employees of Intelligence Services Act organisations.¹⁸ Although there is no right to free speech in Australia, there is an implied right to political communication under ss 7, 24, 64 and 128 of the Constitution.¹⁹ As s 35P criminalises disclosing information relating to SIOs information that could be considered to be ‘political communication’²⁰—then s 35P can be seen to be an effective burden on the implied freedom.²¹ Moreover, coupled with confidentiality concerns over metadata accessibility, these new unauthorised disclosure offences have generated accusations of impinging on media freedom in an attempt to avoid legitimate public scrutiny. As Orwell suggested, war provides a means of strengthening the domestic apparatus for intimidating and suppressing dissent.²²

”

1

Human Rights and Equal Opportunity Commission, Submission No. 158

to the Senate Legal and Constitutional Legislation Committee, Inquiry into the Anti-Terrorism Bill (No 2) 2005, 11 November.

2

Counter-Terrorism Legislation Amendment Bill (No.1) 2015 (Cth), sch

8; sch 9; sch 10.

3 Criminal

op, cit. 2, sch 8.

5

Counter-Terrorism Legislation Amendment Bill (No.1) 2015 (Cth), sch 10.

6

Klass v Germany, (1979-80) 2 Eur Court HR 214, 48; 68.

7 Australian

There is no way to describe the proposed increases in executive and surveillance powers, and the multiplicity of so-called anti-terrorist legislation other than as fundamentally Orwellian. Retreating to fear, surveillance and censorship in order to protect the national security and, ironically, the values of freedom and democracy that Australia so readily espouses on the international stage is a cause for alarm. Therefore, we must consider the argument that governments relinquish much of their new found power and control, not only in the interest of making us more secure, but so we can avoid a Big Brother state.

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THE FULL BENCH

Human Rights Commission, Submission No.5 to the

Parliamentary Joint Committee On Intelligence And Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No.1) 2015, 9 December 2015, 63.

8

George Orwell, Nineteen Eighty-Four (Secker & Warburg, 1949) 3.

9 National

Security Information (Criminal and Civil Proceedings) Act

2004 (Cth), s38J(2); s 38J (3).

10 Mansour

Ahani v Canada, UN Human Rights Committee

Communication No. 1051 of 2002, UN Doc. CCPR/C/80/D/1051/2002.

11 op.cit

7, 75.

12 National

Security Legislation Amendment Bill (No. 1) 2014 (Cth), sch 3,

s 35K. 13 Revised

Explanatory Memorandum, National Security Legislation

Amendment Bill (No 1) 2014 (Cth), 22, [76].

14 Criminal

Code Act 1995 (Cth), div. 115.].

15 Criminal

Code Act 1995 (Cth), div. 80.

16 Criminal

Code Act 1995 (Cth), s 91.1.

17 Crimes

Act 1914 (Cth), s 70.

18 Intelligence 19 Lange 20 Ibid,

Conclusion

Code 1995 (Cth), div. 104.

4

Services Act 2001 (Cth), s 39; s39A, s 40.

v Australian Broadcasting Corporation (1997) 189 CLR 520.

571.

21 Cames

Nunez ‘The implied freedom of political communication:

A basis for journalists to challenge Australian Security Intelligence Organisation Act 1979 (Cth) s 35P?’ (2015), 20, Media and Arts Law Review 252, 265.

22 Michael

Head, “Orwell’s Nineteen Eighty-Four 20 years on: ‘The war

on terrorism’, ‘doublethink’ and ‘Big Brother’” (2005) 30 Alternative Law Journal 208, 213.

23 Tom

Gotsis, ‘Revenge Pornography, Privacy and the Law’ (e-brief issue

7/2015, NSW Parliamentary Research Service, Parliament of Australia, 2015) 2.

24 Australian

Law Reform Commission, Serious Invasions of Privacy in

the Digital Era - Final Report, Report No 123 (2014) 51.

25 [2015]

WASC 15.

26 Susan

Gatford, ‘Revenge Porn Makes New Law’ (2015), Privacy Law

Bulletin 12, 251.

27 Australian

Law Reform Commission, Serious Invasions of Privacy in

the Digital Era - Final Report, Report No 123 (2014) 35.

N I C O L A C O L AG I U R I E X A M I N E S AU ST R A L I A’ S C U R R E N T L EG A L STA N C E O N O N L I N E S H A M I N G A N D D E FA M I N G , A N D I N PA RT I C U L A R , T H E R E M E D I E S AVA I L A B L E TO V I C T I M S O F R E V E N G E P O R N O G R A P H Y.

♠

Revenge Pornography: What is it?

A topic of recent public debate in Australia has been privacy in the context of ‘revenge pornography’. This is where a resentful ex-partner, without the consent of the former partner (the victim), releases via the Internet, sexually graphic images or footage with the deliberate intention of embarrassing, demeaning and distressing that individual.¹ The primacy of social media now allows such material to become widespread in a matter of minutes, resulting in harmful consequences for the victim. This growing practice of ‘online shaming’ has raised the question: what are the consequences for the shamer?

“IT’S ONLY FOR ME, promise.”

WR I T T EN B Y Nicola Colagiuri ARTI CLE S

23

♠ What protection is currently offered?

THE DI S C L OS U R E oƒ

S E X U A L LY E X PL IC IT IMAGES oƒ

P E O P LE W I T H OU T TH E IR CONSENT is

O N E T YP E oƒ

V I OL E N C E

Despite the increasing prevalence of ‘revenge porn’, Australian courts and parliaments appear reluctant to create a generalised tort of invasion of privacy to combat the issue. This absence of a formalised legal response has left complainants with a limited range of remedies.

The ALRC, in its recent 2014 report, identified that although the existing law provides protection against some invasions of privacy, there are significant gaps and uncertainties.

In particular, outside actions of trespass, malicious prosecution or defamation, tort law does not provide a remedy for intentional infliction of emotional distress, except that which amounts to ‘psychiatric illness’. To remedy this, the ALRC recommended that a tort for serious invasions of privacy should be actionable per se, therefore allowing for the recovery of damages for emotional distress.²

Emotional distress — A gap in the law: Wilson v Ferguson (2015) The recent case, Wilson v Ferguson³ evinced both the power of equitable damages and the idea that courts are willing to stretch the relief offered to victims where a breach of confidence has occurred. Here, the plaintiff, Ms Caroline Wilson, was successful under the equitable doctrine of breach of confidence for an act of ‘revenge porn’ and awarded significant damages for the emotional distress caused by the incident. Ms Wilson and the defendant, Mr Neil Ferguson, were both colleagues and engaged in a personal relationship. Almost immediately after the pair broke up, Mr Ferguson uploaded ‘16 explicit photographs and two explicit videos’ that Ms Wilson had sent to him during their relationship, on his Facebook profile.

In addition to finding that the elements of the equitable obligation of breach of confidence were satisfied and awarding $13,404 for economic loss to the plaintiff, his Honour also found that the case warranted a sum of ‘additional damages’. It was noted that, Ms Wilson suffered ‘significant embarrassment, anxiety and distress as a result of the dissemination of intimate images of her in her workplace and among her social group’.

It is this kind of conduct that could be considered an outrageous invasion of privacy and may justify an award of exemplary damages, where in this case, in the absence of a statutory or common law remedy for breach of privacy, the equitable cause of action for breach of confidence was used to fashion a remedy for Ms Wilson.⁴ On this basis, where online shaming involves some unauthorised disclosure of information, images or other material, the equitable doctrine of breach of confidence is a viable legal avenue and the court may allow additional damages for the distress caused.

A G A I NS T W O ME N and

C O N S E Q U EN C E S OU GH T to be

S T R I C T.

A new privacy tort?

On a final note, taken from the 2014 ALRC Report in support of the introduction of a new tort, Australia’s privacy laws should also reflect our international obligations, such as the International Covenant on the Elimination of All Forms of Violence Against Women (CEDAW). The disclosure of sexually explicit images of people without their consent is one type of violence against women and consequences ought to be strict.⁵ It is unclear as to whether the legislature will lend support to the creation of a statutory tort of privacy or whether it will instead consider that such a response is unnecessary in light of decisions such as Wilson and the scope of equitable damages. In any case, it is paramount that remedies are available to victims who have suffered such gross invasions of privacy. What is clear however, is that in an era where the concept of ‘privacy’ is becoming increasingly delicate, issues surrounding its protection have been exacerbated as a result of technological developments. As a result, new avenues for individual’s privacy to be invaded have arisen. As such, the sanctity of individual privacy should not be forsaken, but rather, safeguarded.

1

♠

24

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Tom Gotsis, ‘Revenge Pornography, Privacy and the Law’ (e-brief issue 7/2015, NSW Parliamentary Research Service,

Parliament of Australia, 2015) 2.

2

Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era - Final Report, Report No 123 (2014) 51.

3 [2015]

WASC 15.

4

Susan Gatford, ‘Revenge Porn Makes New Law’ (2015), Privacy Law Bulletin 12, 25.

5

Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era - Final Report, Report No 123 (2014) 35.

IT IS NONE OF YOUR BUSINESS… OR IS IT?

If privacy laws affect people, what does it mean for the big conglomerates or even your local corner shop?

Our own editor, Kate Kemp, investigates the positive affects of new privacy principles on businesses.

W RIT T E N BY Kate Kemp In 1988 the privacy laws were enacted as the public became increasingly concerned over the storage of personal information in databases. Today with expansion of social media, big data and the rapid growth of online information; sharing privacy issues have changed immensely and the Australian Privacy Act is just starting to catch up. The new Australian Privacy Principles (APP’s) will replace the National Privacy Principles and Information Privacy Principles, and will apply to businesses, organisations and government institutions and agencies.¹ The new laws seem impressive to consumers as they gain the right to address inaccuracies in the information stored by organisations and have a right to know where there data is stored, and how it is shared. For businesses the APP’s appear to add red tape to an already complex system. However, there are some hidden benefits.

In reality the APP’s are rather limited in their scope and do little to combat the rise of global information sharing and undisclosed data storage locations. They still allow businesses to collect and store information; however, all companies must have a privacy policy which outlines how data is collected, where it is stored and how it is stored.² Any changes to company practices must be reflected within the privacy policy.³ All information collected and stored must be deemed reasonably necessary or related to at least one of the entities’ functions.⁴ Information must be collected with consent and lawfully done.⁵ If an entity receives unsolicited information it must, within a reasonable period, report this to the Australian Government. The Privacy Commissioner has the power to investigate and fine businesses that do not comply with the new policy and businesses that are found to have leaked information. If it is found that the APP’s are not being complied with, companies can face up to 1.7 million dollars in penalties and individuals can be charged up to 340,000 dollars.

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So what are the benefits?

1.

Minimising the leaks

It is undeniable that corporations globally have a problem with data storage and have done so for some time. In 2011, Sony released details of over 100 million customers’ payment details; 2014 saw Telstra also fail to uphold privacy after releasing 15,000 customer records; and in 2015, dating website Ashley Maddison was hacked leading to thousands of customers’ details being leaked.⁷ The new privacy policy ensures that companies and their employees have more control over where and how their data is being stored, arguably minimising the chance of information leaks. Following the laws set out by the APP’s can protect businesses from internal and external leaks in order to prevent the millions of dollars spent dealing with leaks and hacking incidents.

2.

Greater employee accountability Individual employees who are found to be responsible for data leaks and failing to comply with the APP’s can be charged individually under the new laws, thereby placing responsibility on individual employees as well as the company to uphold data security measures.

3.

Consumer Confidence Understandably, companies’ privacy leaks have caused the public to become increasingly concerned about how their information is being collected and stored on the internet. However, the new privacy policy could go a long way in restoring the trust of the public and heightening consumer confidence by allowing consumers to have more information about where their personal information is being stored and shared. Surveys show that consumers feel more confident if a company discloses how, why and where their personal information is being stored.⁸ 26

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4.

Information collection Minimal changes have been made to businesses’ capacity to obtain and store information from customers and clients as long as they can prove that it is reasonably necessary.⁹

5.

Global Data Storage Data is still allowed to be stored internationally by companies as long as they disclose where the data is being stored. Companies are still able to use cloud storage systems where data is stored through multiple servers and in multiple locations as long as they disclose all of the possible locations in which the data is being stored.¹⁰

6.

Flexibility

¹ Australian Privacy Principles (2014), s3. ² Australian Privacy Principles (2014), s1.4. ³ Australian Privacy Principles (2014), s1.4.

4

Australian Privacy Principles (2014) s3.3.

5

Australian Privacy Principles (2014) s3.2.

6

Paul Wallbank, ‘Privacy Act Revisions: All Bark, no bite’,

Business Spectator (online) 12 March 2014 <http://www.

The APP’s are ridden with vague definitions such as “reasonably” and “may” and allowing companies some flexibility in the information they chose to disclose. For example the Coles Supermarket privacy policy fulfils the APP’s requirements but provides the consumer with very little information.

‘We handle your personal information in connection with providing, administering, improving and personalising our products and services. This can include processing payments, delivering orders, managing promotions, providing refunds and discounts, verifying your identity, communicating with you (including direct marketing), conducting product and market research, maintaining and updating our records, dealing with enquiries from you, and working with our service providers and other Wesfarmers group companies.’¹¹

businessspectator.com.au/article/2014/3/12/technology/ privacy-act-revisions-little-bark-no-bite>.

7

Paul Wallbank, ‘Privacy Act Revisions: All Bark, no bite’,

Business Spectator (online), 12 March 2014 http://www. businessspectator.com.au/article/2014/3/12/technology/ privacy-act-revisions-little-bark-no-bite, Ashley Madison Leak exposes high number of Australian cheats, ABC NEWS (online), 20 August 2015, <http://www.abc.net. au/news/2015-08-20/ashley-madison-leak-exposesaustralian-cheats/6711596>.

8

CHOICE (online), Handle with care, 15 January 2016,

CHOICE <https://www.choice.com.au/shopping/ consumer-rights-and-advice/your-rights/articles/loyaltyprograms-data-collection-privacy-law>.

9 10 11

Australian Privacy Principles (2014) s3.3.

Australian Privacy Principles (2014) s1.4.

Paul Wallbank, ‘Privacy Act Revisions: All Bark, no bite’,

Business Spectator (online) 12 March 2014 <http://www. businessspectator.com.au/article/2014/3/12/technology/ privacy-act-revisions-little-bark-no-bite>.

Looking forward As the technology continues to expand with the development of smartphones, wearable technology, apps, cloud storage and ibeacons, companies have access to more specific and personal data than ever before. Unfortunately the APP’s have failed to address the most recent and emerging technology, thereby failing to achieve their objective of modernising privacy policy. For businesses the rules create more red tape and few practical changes. However, in the case of APP’s, businesses are able to capitalise on the meagre benefits that they provide, while the consumer is left with half the protection they need in contemporary society. It is unfortunate that the Australian Government’s new privacy laws are still lagging behind as technological developments speeds ahead.

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•

PRIVACY AND THE NOT SO SAFE HARBOUR With the implementation of new metadata retention laws, it is important to know what is in place to ensure that lines are not crossed and rights are not infringed. Jonathon Hetherington investigates the change to Safe Harbour Principles and their effects.

W R I TTE N B Y Jonathon Hetherington

In 2013, Edward Snowden’s revelations of mass digital surveillance by the United States propagated cynicism towards the ability of international law to protect digital privacy.¹ This cynicism was further aggravated in last October’s dec-ision by the European Court of Justice, which invalidated the International Safe Harbour Privacy Principles.² These Principles provided a framework for United States companies to comply with international obligations of data protection, whilst collecting data from European citizens. In 2000, the European Commission 28

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affirmed that these principles of data protection complied with the EU Data Protection Derivative,³ allowing the principles to facilitate the transatlantic transfer of data.

However, in 2015, Maximillian Schrems challenged the validity of the agreement in the European Court of Justice. He argued that after revelations of US surveillance, his Facebook data was inadequately protected

by the Agreement. Schrems succeeded as the Court found the 2000 decision invalid.⁴ The judgment of the Court iterated that legislation, which allows companies to, ‘have access on a generalized basis to the content of electronic communications,’⁵ would be invalid under Article 7 of the Charter of Fundamental Rights of the European Union.⁶ Furthermore, it noted that Article 49 requires citizens to have access to remedy

for abuses of their data.⁷ However, the Court did not consider whether the Safe Harbour Principles fulfilled these requirements, and rather invalidated it due to what are considered as ‘technical legal arguments.’⁸ The invalidation of this agreement challenged United States technical companies and start-ups attempting to transfer data across the Atlantic. Thus, it heightened the need for new agreements, which better protected the digital privacy of European citizens.

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• SUCH COMMITMENTS BET WEEN G LO B A L P OW E R S W I L L H O P E F U L LY C ATA LY S E A G LO B A L C L I M AT E O F T R A N S PA R E N C Y I N DATA R E T E N T I O N .

The ‘EU-US Privacy Shield’ On February 2nd 2015, the European Commission announced that a tentative political agreement, known as the EU-US Privacy Shield had been made to replace the Safe Harbour Principles.⁹ In a statement, European Commissioner, Vera Jouvera noted that the agreement had three main aims. The first of which is to ensure, ‘strong obligations on companies handling Europeans' personal data and robust enforcement.’¹⁰ A tenant to promote transparency and impose limitations upon data use by US government authorities supplements this. The US has also guaranteed that there will be, ‘clear limitations, safeguards and oversight mechanisms,’¹¹ and has ruled out indiscriminate mass surveillance of European Citizens.¹² Finally the agreement will ensure that there are redress possibilities for European citizens who feel that their ‘data has been misused under the new agreement.’¹³

Will the Shield Succeed?

At first glance, this appears to be a victory for European privacy. United States authorities have made commitments to regulation and transparency, particularly through the installation of an ombudsman and annual joint EU-US review.¹⁴ Such commitments between global powers will hopefully catalyse a global climate of transparency in data retention.

However, the proposed agreement has been met with criticism. The first of which are of exceptions that allow the US to conduct indiscriminate surveillance, if technical or operational limitations prevent targeted surveillance or dangerous trends arise. Furthermore MEP Jan Philipp Albrecht, involved in updating EU Data Protections, deemed the agreement to be ‘little more than a reheated serving of the pre-existing Safe Harbour decision.’¹⁵ There is also growing scepticism about the dependability of written assurances provided by the United States as part of the agreement. As Schrems remarked, ‘With all due respect, a couple of letters by the outgoing Obama administration is by no means a legal basis to guarantee the fundamental rights of 500 million European users in the long run.’¹⁶ As the US still retains domestic legislation that facilitates covert surveillance of suspected overseas ‘spies’,¹⁷ Schrems’ concerns do appear valid.

It seems likely that the Privacy Shield will be subject to several legal challenges, particularly in regards to indiscriminate mass surveillance.¹⁸ This poses questions of its viability for use by US companies in the immediate future and for the ability of Europe to enforce their privacy standards.¹⁹

1

See Maximillian Schrems v Data Protection Commissioner (9C-362/14)

[2015] ECLI-EU 650, [30].

2

Ibid [106]. 8; sch 9; sch 10.

3

Commission Decision 2000/520/EC of 26 July 2000 Pursuant to

Directive 95/46/EC of the European Parliament and of the Council on the Adequacy of the Protection Provided by the Safe Harbour Privacy Principles and Related Frequently Asked Questions Issued by the US Department of Commerce OJ C 2441 E/7.

4

Maximillian Schrems v Data Protection Commissioner (9C-362/14) [2015]

ECLI-EU 650, [106].

5

Ibid [94].

6

Ibid; Charter of Fundamental Rights of the European Union, European

Union, signed 7 December 2000, C326/391(1 December 2009) art 7.

7 Charter

Maximillian Schrems v Data Protection Commissioner (9C-362/14) [2015] ECLI-EU 650, [95].

8

Jennifer Archie, Gail Crawford & Ulrich Wuermeling, ‘European

Court of Justice: Safe Harbor Decision Is Invalid!’ on Latham & Watkins LLP, Global Privacy and Security Compliance (6 October 2015) < http:// www.globalprivacyblog.com/privacy/european-court-of-justice-safeharbor-decision-is-invalid/ >; Maximillian Schrems v Data Protection

Commissioner (9C-362/14) [2015] ECLI:EU 650 [97 – 98].

9 Commission

The successful establishment of a tentative agreement between the United States and Europe is a sign of the capability of international law to act as a mechanism for the protection of digital privacy. However, until details of the legal agreement are released and it is able to overcome legal challenges, including an analysis by Article 29 Working Party, ambiguity will remain over European data usage in the United States. Such uncertainty is an uncomfortable issue.

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Decision 2000/520/EC of 26 July 2000 Pursuant to

Directive 95/46/EC of the European Parliament and of the Council on the Adequacy of the Protection Provided by the Safe Harbour Privacy Principles and Related Frequently Asked Questions Issued by the US Department of Commerce OJ C 2441 E/7.

10 European

Commission, ‘EU Commission and United States agree on

new framework for transatlantic data flows: EU-US Privacy Shield’ (Press Release, 2 February 2016).

11 Ibid.

12 Ibid.

13 Ibid.

14 Ibid.

15 Lamos,

Europe And US Seal ‘Privacy Shield’ Data Transfer Deal To

Replace Safe Harbor (2 February 2016) TechCrunch < http://techcrunch. com/2016/02/02/europe-and-us-seal-privacy-shield-data-transfer-dealto-replace-safe-harbor/?ncid=mobilenavtrend>.

16 David

Conclusion

of Fundamental Rights of the European Union, European

Union, signed 7 December 2000, C326/391(1 December 2009) art 49;

Meyer, Looks Like Data Will Keep Flowing From the EU to the

U.S. After All (2 February 2016) Fortune < http://fortune.com/2016/02/02/ looks-like-data-will-keep-flowing-from-the-eu-to-the-u-s-after-all/ >.

17 Foreign

Intelligence Surveillance Act 50 USC 36 (1783); See also

Caroline Donnelly, EU-US Privacy Shield: Can written assurances adequately protect EU data from US snoops? (5 February 2016) Computer Weekly < http://www.computerweekly.com/ news/4500272557/EU-US-Privacy-Shield-Can-written-assurancesadequately-protect-EU-data-from-US-snoops >.

18 Meyer, 19 Ibid.

above n 15.

V. S H AR N I N I C H O L S

KAT I E LAT I MER

Affirmative

Negative

STOP.

Hammer Time.

These days, you don’t have to wear a peg leg and sport some funky dreadlocks to be a pirate. Streaming, downloading and sometimes just a simple click of a button means you have effectively broken the law. But are these laws just a walk on the plank or are they seriously needed in this modern age?

Two students, Sharni Nichols and Katie Latimer, have come at this question from two different angles to answer the question: Should piracy laws be abolished?

AF F I R M ATI VE

N EGAT I VE

Sharni Nichols

Katie Latimer

Illegal downloading in the 21st century is commonplace, especially amongst teenagers and young adults.

In Australia in particular, the practice is so prevalent that many perpetrators are unaware that what they are doing is actually against the law.¹ The two main driving forces behind this social trend are cost and accessibility.² As recently as 2014, the popular television series Orange Is The New Black aired for under $10 in the United States but cost $45 for Australians to view on Foxtel weeks after it premiered in the US.³ It is no wonder that more and more consumers began to look to illegal platforms to satiate their desires for digital entertainment.

This, however, neither excuses nor justifies the act of piracy. Indeed, the sentiment that is largely missing from debate and popular opinion pieces on

In 2015, Australia saw the introduction of two new antipiracy policies. But are these new laws really the answer to copyright redemption for intellectual property holders? If they operate at the expense of an Internet user’s privacy, then the answer is probably not. The first of the policies introduced is an industry code enacted in April 2015 by the Communications Alliance Ltd under instruction from the Australian Government, called The Copyright Notice Scheme Code. The code essentially forces Australian internet service providers to collect, use, and store the personal information of users, and utilise this information to aid rights holders in enforcing their copy right against the user.¹ These laws came off the back of the Dallas Buyers Club case, which involved Dallas Buyers Club and Voltage pictures applying for preliminary discovery, in order to HAMMER TI ME

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“What illegal downloading gives with one hand, it takes away with the other.”

“These laws ... signify a movement towards the suppression of online freedom and file sharing.”

this topis is that what illegal downloading gives with one hand, it takes awar with the other.

Artists, directors, designers, technicians, producers, and editors (the list goes on) sacrifice an enormous amount of time, effort and money for the end product which we enjoy, whether this be music, television or some other form of entertainment. Each time one person views or hears that product without paying royalty; it casts the creators further into the business of charity.

It is for this reason that the recently introduced piracy laws are necessary and indispensible for a society wishing to protect the livelihood of those who create our entertainment. If you have been illegally pirating content, you must pay the price.

obtain personal information of 4,726 individuals who had downloaded the Dallas Buyers Club movie through BitTorrent.² While the applicant recently decided not to pursue further legal action, this case certainly revealed an undeniable encroachment of copyright law into the field of privacy.

The second of the laws is a bill passed by both houses on the 22nd of June 2015. The Copyright Amendment (Online Infringement) Bill 2015, makes amendments to the Copyright Act 1968 (Cth), enabling the owner of a copyright to apply to the Federal Court of Australia for an order requiring a Carriage Service Provider (CSP) to remove a certain website from the internet if it is believed that website is facilitating the infringement of copyright.³ These laws, described as “radical” by Australian National University law professor, Dr Matthew Rimmer, signify a movement towards the suppression of online freedom and file sharing, exacerbated by intellectual property holders and commercial interest, at the cost of online privacy and security. In the digital marketplace, there is now a prevalent tension between copyright law and online privacy, with the recent policies demonstrating that copyright holders will be in the prevailing position.⁴ However, to store the personal information of users only to use this information in order to prosecute them for downloading a movie online, seems inefficient in fighting the bigger picture.

There will be unavoidable collateral damage in the removal of copyright infringing websites from the internet, as large file sharing sites will fall within this category. If Australia continues in this direction, will any personal information truly be kept private online?

1

David Wall, ‘The Internet as a Conduit for Criminal Activity’ in April

Pattivana (ed) (2005) Information Technology and the Criminal Justice

System 78-94.

2

Peter Williams, David Nicholas and Ian Rowlands, ‘The attitudes

and behaviours of illegal downloaders’ (2010) 62(3) Aslib Journal of

Information Management 283, 288.

3 Graham

Spencer, ‘Watching TV in Australia: The Australian Delay

Under The Microscope’ 25 July 2014, retrieved from <http://reckoner. com.au/2014/07/watching-tv-in-australia-the-australian-delay-underthe-microscope/>.

1

Communications Alliance Ltd, Industry Code C653: 2015 Copyright

Notice Scheme (at 8 April 2015), 3.6.

2

Dallas Buyers Club LLC v iiNet Limited (2015) FCA 317.

3 Explanatory

Memorandum, Copyright Amendment (Online

Infringement) Bill 2015 (Cth), 20.

3 Sonya

32

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Katyal, ‘Privacy vs. Piracy’ (2005) 7 Yale Journal of Law & Tech 223.

Judgement Day WI T H ER I N FI N C H

Unlike the fight against the machines that Sarah Connor prophesied, today’s generation face their own Judgment Day on a regular basis when laws are delivered on their behalf.

So, it’s 2:14 am, August 29 1997 and like Skynet, we have become self-aware.

Interested in leading the human resistance?

Ask Erin Finch a question about your looming Judgment Day!

ASK E R I N

‘Hi Erin, I was passing through Surry Hills recently when I saw a group of protestors camping outside a private clinic, which I later discovered performs legal pregnancy terminations. What are the privacy implications for the women accessing these services and the staff working there?’

•Kate Sammut JUDGEMENT DAY

33

E R IN ' S JUD GE M EN T Hi Kate, I am glad you asked this question as the issue of women’s privacy, especially in regards to seeking abortions, relates well to this edition’s theme of privacy, and the price we are willing to pay to keep it.

The clinic in question is called The Private Clinic, managed by Paul Nattrass. As practise [sic] manager for the Clinic, he is witness to the women and couples who come to access these medical services and must endure the shocked and pained looks on their faces. These looks are often the result of the harassment they received on their way in the door by protestors who regularly camp outside, waiting to hurl insults and brandish religiousbased messages.¹ For years, women seeking abortion services or staff working at these clinics have had their right to privacy and ultimately, their dignity, removed by those who take a contrary view. Some might argue that these episodes of intimidation and harassment are ‘nothing short of bullying’.² After a series of events, including the murder of a security guard employed at the East Melbourne clinic in 2001 by an anti-abortionist,³ Victoria decriminalised abortion in 2008. Following Victoria’s lead, Tasmania and the ACT constructed similar legislation that led to the introduction of safe access zones with the aim of ensuring that ‘women can access the health facilities in privacy, and free from intimidating conduct’.⁴ This inspired the passing of The Public Health and Wellbeing Amendment (Safe Access Zone) Bill in Victoria in 2015 without amendment.⁵ This legislation has been instrumental in establishing a 150-metre zone around hospitals, GP clinics and health services that perform abortions. This implementation has not only served to protect women’s medical privacy but also allows staff that work at places where abortions are carried out to enter and leave their workplaces safely. Victorian Minister for Health, Jill Hennessy, has stood up for these women and staff workers by arguing that, ‘Women have a right to medical privacy and the right to access a legal health service without experiencing harassment and intimidation.’⁶ This, however, is Victorian legislation.

In NSW, seeking an abortion remains an offence under sections 82 and 83 of the Crimes Act.⁷ Currently, the law states that a ‘doctor must honestly believe on reasonable grounds that ‘the operation was necessary to preserve the woman involved from serious danger to her life or physical or mental health which the

34

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continuance of pregnancy would entail’.⁸ A doctor may take into account economic and social factors of the woman seeking the termination, as well as medical ones.⁹ This is a mistake. NSW should create legislation that mirrors the laws found in the three states mentioned above because above all, privacy is a basic human right and the existing legal uncertainty puts all active participants at risk.

The Bill in Victoria did not halt a person’s right to express their views, but made sure their views did not prevent women from exercising their right to privacy and reproductive health care.

P R I VAC Y I S A B A S I C H U M A N R I G H T A N D T H E E X I S T I N G L EG A L U N C E RTA I N T Y P U T S A L L AC T I V E PA RT I C I PA N T S AT R I S K .

If we want to see this change in NSW, we have to be proactive in our efforts to de-stigmatise abortion procedures and work towards an environment which respects one’s right to privacy. Otherwise, we only live to face a new nightmare; a future in which women are too afraid to seek the help they need and the fight for bodily autonomy is lost.

Much love, Erin Finch.

1

Josh Butler, ‘Abortion To Be Legalised, Clinic Protests Banned Under

NSW Greens Proposal’, The Huffington Post (online), 20 September 2015 <http://www.huffingtonpost.com.au/2015/09/20/nsw-abortion_n_8161752. html>.

2

Editorial, ‘Women should not be bullied over abortion’, The Age

(Melbourne), 3 September 2015.8; sch 9; sch 10.

3 Ibid.

4

Ronli Sifris, ‘State by State, “Safe Access Zones” around clinics are

shielding women from abortion protestors’, The Conversation (online), 30 November 2015 <http://theconversation.com/state-by-state-safeaccess-zones-around-clinics-are-shielding-women-from-abortionprotesters-51407>.

5

Minister for Health, ‘Safe Access Zones To Protect Women’s Rights To

Medical Privacy And Dignity’ (Media Release, 27 November 2015).6 Ibid.

7

Crimes Act 1900 (NSW).

8R 9

v Wald [1971] 3 DCR 25. December 2015, 63.

Michaela Vaughan, ‘Archaic abortion laws in NSW an affront to basic

human rights’ (2015) Human Rights Defender <http://www.ahrcentre. org/news/2015/10/29/747>.

Costa A, 2015, If government tracks metadata.

FOLLOW COS T A : FACEBOOK.COM/COST AACO M IC S

The Full Bench 2016 Edition One – The Price of Privacy

Make sure that you ‘like’ the TFB Facebook page for updates on all things TFB related! For those interested in contributing, tri-annually calls for contributors are made to members via social media, email, and out fortnightly newsletter, The Buzz.

For more information on how to contribute or any other queries, please contact the 2016 UTS LSS Publications Director, Bianca Newton, at publications@utslss.com.