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ALRC moves to fix Australia's privacy problem

The Australian Law Reform Commission (ALRC) has called for further reform of Australia's privacy laws, recommending new technology-neutral surveillance laws that would potentially affect Google Glass, among others.

The ALRC today released a discussion paper dubbed Serious Invasions of Privacy in the Digital Era, which details 47 proposals relating to surveillance laws and recommends a new tort (a civil wrong or wrongful act that leads to legal liability) of privacy in federal legislation, which would result in the issue of privacy embedded in Commonwealth law.

Currently there is no established legal tort for Australian citizens to use if they feel they've been wronged when it comes to privacy, but establishing a privacy tort would be an attempt to fix this.

The ALRC found there was inconsistency between states and territories but also between devices especially as wearable technology comes into the fold.

“There is significant inconsistency between the laws with respect to the types of devices regulated and with respect to the offences, defences and exceptions,” the paper said.

“This inconsistency results in reduced privacy protections for individuals, and increased uncertainty and compliance burdens for organisations,” the paper said.

“The inconsistency with regard to this exception for participants means, for instance, that a journalist who records a conversation to which they are a party may have committed an offence in one jurisdiction, while the same recording would be permitted in another jurisdiction."

Electronic Frontiers Australia mentioned Google Glass in its submission, arguing that Glass’ use for invasions of privacy “may not be adequately addressed under current laws but which may fall within the scope of a cause of action for serious invasion of privacy."

But, as Gizmodo noticed, even if the laws were enacted, there would be scope for Glass users to record the actions of themselves and others:

"It is important to note that uniform surveillance device laws would not, and should not, prohibit the use of such devices generally," the ALRC paper reads.

"A wearable device may have many legitimate uses that do not amount to surveillance. Whether or not the use of a device constituted an offence would depend on the circumstances of its use, such as the activity being captured, the extent of the monitoring or recording, and whether or not parties to the activity were aware that the device was being used."

The ALRC also recommended that internet intermediaries, such as Facebook and Twitter, be able to access "safe harbour provisions" in the event of a serious incident, and provided that the intermediary acted in good faith.

"The ALRC proposes the introduction of a safe harbour scheme for internet intermediaries, to protect them from liability for serious invasions of privacy committed by persons who use their services, where the intermediary meets certain conditions," the paper said.

"Where an intermediary meets these conditions, a plaintiff will only be able to pursue the third party, the primary tortfeasor. This defence will not apply to invasions of privacy that intermediaries themselves intentionally commit."

This means essentially that if Facebook or Twitter for example agree to a certain set of privacy standards they'll be exempt from liability, and someone who feels wronged can only sue the aggressor, not Facebook or Twitter (for example) themselves.

The ALRC also said it shouldn't be up to intemediaries t o vet user content prior to publication, with the commission labelling such requirements as "onerous obligations on platforms".

Facebook used its submission to claim tthat the cost of reviewing third party content would be "prohibitive."

Anyone can submit feedback on the ALRC's proposals - the closing date for submissions is 12 May 2014, while the commission is due to provide final recommendations to the federal government in June.

The ALRC is an independnt reform body that makes recommendations regularly to the federal government into reviews of Australian law, helping keep it up to date.

You can check out the PDF document in full here.


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