Do Privacy Concerns Restrain Journalists? (original) (raw)
Related papers
(2011) 19 Torts Law Journal 104-134
Australian appellate courts continue to show little inclination to recognise a common law right to privacy. An invasion of privacy remains actionable only where a defendant can establish some other cause of action that applies incidentally. Reports of the Australian Law Reform Commission (2008), the New South Wales Law Reform Commission (2009) and the Victorian Law Reform Commission (2010) all concluded that this standard of protection is inadequate and recommended the introduction of a statutory cause of action for privacy. Against this background, the following paper does not resume the debate on whether statutory reform is indeed preferable over judicial development of privacy protection. Instead, it considers how a statutory cause of action should be formulated. To that aim, it will critically appraise the proposals for a statutory cause of action contained in the three law reform reports. The article will make recommendations in relation to the scope and elements of the cause of action, the defences as well as the range of remedies that should be available. This analysis is timely because the Federal government recently foreshadowed the publication of an issues paper that will set out the reform options and form the basis for public consultation.
Determinations under the Privacy Act 1988 (Cth) as a privacy remedy
Under section 52 of the Privacy Act 1988 (Cth), the Australian Privacy Commissioner has the power to resolve complaints of privacy interferences by making a determination. This paper critically analyses the Commissioner’s use of these remedial powers in the now over thirty published determinations. The paper explains the regulatory context of the determinations power and give an overview of the determinations that can be made. It then addresses the legal framework that applies to monetary remedies under s 52 of the Privacy Act, in particular its relationship to common law remedies and compensation for economic losses. The focus is on the assessment practices in relation to non-economic losses, which are often of a complainant’s main concern. It also examines the availability of non-compensatory remedies, such as apologies or orders to review or change existing practices. The paper concludes that, while infrequent, relief under s 52 of the Privacy Act provides an avenue of protecting informational privacy rights through regulatory mechanisms and thereby supplements relief under general law.
Exemplary Damages for Invasions of Privacy
(2014) 6 Journal of Media Law (Hart Publishing, Oxford), 43-67, 2014
As part of the government response to the Leveson Report, the Crime and Courts Act 2013 (UK) introduces new provisions on the availability of exemplary damages for media torts. This Act creates a statutory bar to the awarding of exemplary damages against a publisher who has become a member of an approved regulator but otherwise makes them available in narrowly defined circumstances. The article explores the extent to which the changes are likely to affect media publishers and, as part of this analysis, compares the new provisions with current English law as well as the relevant law in Australia, New Zealand and Canada. It also examines whether the new statutory regime is compatible with the UK's obligations under the European Convention on Human Rights. The article concludes that the statutory measures are to be welcomed because exemplary damages have an important but limited role in deterring particularly egregious media misconduct and the provisions provide more certainty to media publishers as to when they can be ordered. The article also argues that the new provisions on exemplary damages are compatible with the UK's obligations under the Convention.
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