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The limits of freedom

By George Williams - posted Monday, 18 August 2008


Two events this week raise big questions about our privacy. The first was the mistake by Ticketek of sending an advertising email to its customers along with several thousand private email addresses. The second was the release of a mammoth 2,700-page report on privacy by the Australian Law Reform Commission.

Ticketek's error shows how hard privacy is to protect and to police. A simple human error meant that thousands of people had their email address put into the public domain. This provided a rich harvest for spammers and other abusers of the Internet. More ominously, organised crime groups might bundle the email details with contextual information such as bogus requests from Ticketek to lure people into revealing even more about themselves.

Internet crime syndicates have become increasingly sophisticated. They have moved on from spamming millions of addresses with Nigerian and other scams in the hope that a few people take the bait. They now tailor rogue emails with information relevant to the target, even so that an email appears to come from inside a person's organisation.

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With a University of New South Wales email address, I routinely receive emails that appear to come from our own IT service desk. These ask for private information such as my employee number or request that I click on a link that will infect my computer and even allow the attacker to gain control (thereby rendering my computer a ''zombie'', to use the technical term).

Ticketek says that its mistake covers less than 0.01 per cent of its database, but I would certainly be concerned if I was one of those affected. This loss of privacy could have serious consequences unless the person is aware of what has happened and is vigilant about follow-up emails or other invitations.

Despite this, there is no likely prospect of a remedy against Ticketek. Australia's 1998 Privacy Act is a lengthy, complex piece of law that is unfortunately distinguished by the fact that many regard it as a ''toothless tiger''.

The law does not even require a company to notify its customers if their most private details have inadvertently been made public.

The report by the Australian Law Reform Commission has 295 recommendations on how to fix the Privacy Act. One is that any organisation which collects our data and then breaches our privacy must notify us of the fact. It makes sense that notification not be required where the breach is trivial, but be mandatory where serious harm may result.

In the case of Ticketek, some people will be aware of the mistake due to media reporting or because they have seen their email address revealed along with thousands of others. Others will be oblivious and thereby susceptible to follow-up contact by harmful operators.

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The Privacy Act is riddled with exemptions, including for businesses with a turnover of less than $3 million. The Commission recommends that privacy law extend to all companies. Indeed it should. A person's privacy should be protected irrespective of the size of the business. Both small and large businesses should have a responsibility to protect the personal details of their customers.

In a move sure to annoy its political masters, the commission recommends that political parties no longer be exempted from the law. Parties compile large databases containing a wealth of information about voters, including their contact details, local concerns and political preferences. While this certainly helps with campaigning, there is too large a scope for information to be misused. Just because politics is involved should not mean that privacy concerns can be ignored. The exemption should be rejected for what it is: politicians looking after their own interests.

Many of the recommendations represent commonsense change and reveal the poor state of the current law on privacy. A good example is the proposal to prohibit telephone companies charging a fee for people have an unlisted number. People should be able to take their phone number out of circulation, and beyond the reach of telemarketers, without having to pay for the privilege. Access to such a service should not be limited to those people who can afford the fee.

The greatest opposition to the commission's report has predictably come from the media. The most contentious recommendation is that people should be entitled to compensation for a serious invasion of their privacy. Countries such as the United States and Canada recognise this, as have court decisions in Queensland and Victoria. The idea of a new right of action in court has triggered strong concerns, including that it might lead to a ''wave of litigation''. The proposal has been portrayed as a severe limit on freedom of speech that would advantage only those with something underhand to hide.

The media companies are right to be uneasy but have overstated their case. It is time that Australian law caught up with other nations in allowing people to sue for serious invasions of their privacy. The law should, for example, provide a remedy and thus a disincentive where someone is filmed by using a hidden camera in a toilet or where someone posts a video on the internet of their ex-girlfriend engaged in sexual activity. The law should also provide stronger protection in areas like the public exposure of private medical records and other confidential information.

On the other hand, a breach of privacy such as interfering with personal correspondence should lie outside the law where it is in the public interest. This could be, for example, because it is an investigative report that has revealed corruption. The problem lies in where to draw the line. Even having a modest right of action may chill a wide variety of reporting due to fear of legal action.

Part of the media's concern is that its ability to report as news the lifestyles and misdeeds of celebrities will be curtailed. This is a real issue as the law might, for example, prevent reporting in a gossip magazine of a celebrity entering drug rehabilitation. Then again, you have to ask what the public interest is in such reporting and why a celebrity is not entitled to respect for their private medical life.

Where the media organisations have their best point is that the new right to privacy will go too far because it will not be balanced by equivalent rights to freedom of expression and freedom of the press. Because Australia does not have a national charter of rights that equally protects fundamental rights such as speech and privacy, a special law for privacy may tip the scales too far to one side. Privacy is not an absolute right. It has important limits, especially where journalism is involved.

Significantly, other countries that allow people to sue for serious breaches of their privacy also have express protection of free speech. Australia should also go down this path. Our privacy should be protected against unwarranted invasion, including by the media, but this should be tempered by a legal guarantee of freedom of expression.

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First published in the Canberra Times on August 16, 2008.



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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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