Waters, Nigel --- "Same challenges, different world" [2002] PrivLawPRpr 17; (2002) 9(1) Privacy Law and Policy Reporter 2

Same challenges, different world

Nigel Waters

Freedom from routine surveillance, and freedom from commercial exploitation of our private affairs — as we enter the ninth year of PLPR coverage of privacy law and practice in Australasia and the wider Asia Pacific region, the two perennial privacy challenges seem clearer than ever.

Routine surveillance

Resistance to governmental power seems even more difficult in the context of a pernicious alliance of the populist law and order auction with the anti-terrorism fervour following the 11 September terrorist attacks in the US. The US experience of international terrorism has caused it and many other countries to readily abandon important checks and balances. There is a disturbing paradox in these developments. A key indicator of the balance between state power and individual freedom is the extent to which government agencies claim the right to routinely monitor the behaviour and activities of the public at large, without prior suspicion. No sensible privacy advocate objects to the ability of law enforcement agencies to intrude into private lives given justifiable prior suspicion, and given adequate safeguards and accountability. But ambit claims to routinely monitor citizens’ activities, and in particular their communications, must be resisted lest we replicate, in the name of security, precisely the all-seeing, all powerful state that is the very antithesis of the liberal democratic societies which we seek to protect. The pressure, worldwide, for records of telecommunications to be retained specifically for the potential use of law enforcement and intelligence agencies is particularly ominous. The failure, to date, of legislatures in both the US and Europe to limit this trend is particularly disappointing. That battle is yet to be fought in Australia and New Zealand and we can only hope that we can still send a message to the rest of the free world that unspecified (and hardly new) threats of terrorism should not be an excuse for abandoning a carefully and painfully constructed balance of public and private interests.

Commodification of privacy

In the private sector sphere, the recent extension of privacy law to larger businesses in Australia brings home some key privacy issues with which other regional jurisdictions have been grappling for some time. The most important of these is the danger of ‘commodifying’ privacy rights. By placing too much emphasis on the principles of notification and consent (particularly where it is construed as a failure to object or opt out), we run the risk of leaving individuals confused and effectively powerless against the business imperative to identify and pursue new markets. There is too much emphasis in the rhetoric of privacy regulators and governments on simply making markets work better. A naive belief that all individuals need is better information about business intentions, so that they can make informed choices of suppliers, has come to permeate the debate.

There are two related dangers inherent in this mind set. The first is that by overloading consumers with privacy notices and statements, we turn them against privacy laws and make them seem like another imposition rather than a new set of rights. Already in Australia people are making cynical jokes about the amount of material they receive on privacy — in print and in recorded messages. The second danger is that the ‘making markets work’ approach is a fundamentally flawed solution — most consumers are too busy to be willing or able to probe into the intricacies of privacy policies (made more opaque by the complexity of the laws) or investigate alternatives. What people want, as shown in numerous surveys, is at the very least for businesses to seek their explicit permission before using personal information in unexpected ways. This shouldn’t be a lot to ask, but by providing so many exemptions and qualifications, the Australian federal law, like those in many other jurisdictions, simply results in consumers becoming confused, frustrated, angry, and ultimately dismissive of the value of the law.

PLPR volume 9

In issues of PLPR over the next year we will continue to cover and comment on these themes. This issue focuses on the important but often neglected relationship between privacy and freedom of information laws: another area where complex provisions have perverted a simple right — of access and correction — into a morass of technicalities and unexpected outcomes. We also report on the latest regional forum, held in Auckland in March, and in Private Parts on some new developments in a range of jurisdictions.

Nigel Waters, Associate Editor.