The right to privacy

Contributed by AjunthaThinakaran and current to 27 July 2018

The common law does not recognise a general right to privacy or a right to protection of personal information, although it does provide some incidental privacy protection, for example through defamation and trespass laws. Some protection or relief may be gained through obligations arising from the duty of confidence (this seems to be the direction taken by courts in the UK and elsewhere on privacy issues: see Wainwright v Home Office, House of Lords [2003 UKHL 53]; and Hosking v Runting [2003] NZHC 416; [2003] 3 NZLR 385). The general right to personal privacy is also not guaranteed by legislation, with the very limited exception of the Human Rights (Sexual Conduct) Act 1994 (Cth). In WA there is a limited right of privacy in relation to domestic relationships and the distribution of intimate personal images s 10G/61 Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016. The Criminal Law Amendment (intimate Images) Bill will stregthen this protection and, among others, will make it illegal to share intimate images outside a relationship and limit the age of consent to such sharing to persons over the age of 16. The common law features protection which is intentionally or incidentally designed to protect privacy, including privacy aspects distinct from data or information privacy.

The most comprehensive information privacy legislation in Australia is the Privacy Act 1988 (Cth). This sets minimum standards for the handling of personal information. Amendments were made by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) which replaced the National Privacy Principles with the current Australian Privacy principles. Additionally, a more recent 2018 amendment to Federal Privacy Act 1988 introduces a mandatory notification procedure in relation to data breaches affecting individuals.