Privacy, especially with the proliferation of social networks, has often been mentioned as the next big area of law reform.
Horror stories have captured the attention of popular media, and the attention of our politicians.
The previous government, through then Attorney-General Mark Dreyfus, asked the Australian Law Reform Commission (ALRC) to consider changes to the law that would protect users of social networks and the internet more broadly.
Business can’t afford to ignore the Serious Invasions of Privacy in the Digital Era Inquiry, which has now started. Privacy is as much an issue for organisations as it is for individuals. Business interaction with their customers, particularly in the digital space, is the new frontier of marketing and communications and government is keen to ensure consumers are protected.
The Commission has released an Issues Paper for its inquiry. It will investigate issues surrounding the protection of privacy in the digital space and address prevention and remedies for serious invasions of privacy.
The process
The Commission will undertake widespread community and industry consultation. The public and companies are invited to make submissions now on the Issues Paper. Then, draft proposals for reform from the ALRC will be outlined in a Discussion Paper to be released in February 2014 and further submissions will be sought before the Final Report is due in June 2014.
Focus of the Inquiry
This is not the first time the issue has been considered. New technology, particularly the explosion of social media use, has driven the need for this fresh look. Previous recommendations have diverged and been at times contradictory. This new inquiry is seen as an opportunity to address the issue afresh.
The Commission is particularly concerned with the tracking of physical locations and activities of individuals, intercepting communications and information from social media, and aggregating data.
Statutory Cause of Action
The ALRC is interested in gaps in existing privacy protection, particularly from a stakeholder perspective in a range of business, health, community and creative sectors.
In this Inquiry, the Commission is seeking comment on whether a list of examples of the types of invasions should be included in any Act. While the new government is probably more likely to favour a less prescriptive approach, business should be prepared to argue their case.
Other legal remedies to prevent and redress serious invasions of privacy
The Terms of Reference set out for the Inquiry require issues to be considered with reference to existing laws and legislation. Of particular interest to the Inquiry is how the issues are addressed across jurisdictions. The terms of reference make specific reference to “innovative ways” to address the problems in a legal sense.
What should business do?
It’s clear from the terms of reference that the ALRC can, and likely will, conduct a wide ranging inquiry that has the potential to touch on almost all aspects of the digital space. As business of all sizes embraces social media, it makes sense for them to make their voice heard. It is a complex area of law and social policy, with great risk of unintended consequences, and expert advice should be sought before making any submission.
Submissions in response to the paper close November 11. The Issues paper can be found at: http://www.alrc.gov.au/sites/default/files/pdfs/publications/issues_paper_43.pdf
