Privacy Law & Policy Reporter --- "Private Parts" [2005] PrivLawPRpr 7; (2005) 11(5) Privacy Law and Policy Reporter 149

• Private Parts

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Private Parts

AAT overrules Privacy Commissioner and awards compensation

In Rummery and Federal Privacy Commissioner and Anor [2004] AATA 1221 (22 November 2004), the Commonwealth Administrative Appeals Tribunal (AAT) has overturned the federal Privacy Commissioner’s decision in Complaint Determination No 5 of 2004 (April 2004) not to award the successful complainant financial compensation. The Tribunal, drawing on precedents in other jurisdictions, awarded the complainant $8,000 for loss and damage suffered by reason of an inappropriate disclosure of personal information, amounting to a breach of IPP 11, by the Department of Justice and Community Safety of the Australian Capital Territory.

The Commissioner had based his decision not to award compensation on the fact that the disclosures in question were made to two staff of the Ombudsman’s office; did not occur outside the confines of the investigating team and were not known more widely in that office or in the community. The Tribunal found that the interference with the complainant’s privacy was serious and warranted an amount of compensation, albeit well short of the amount claimed.

Source: AAT decision at http://www.austlii.edu.au/au/cases/cth/aat/2004/1221.html

The Commissioner’s determination is at http://www.privacy.gov.au/act/casenotes/comdeter0405.html

Mobile phone camera use subject to criminal law.

A Sydney man has become the first person in NSW to be prosecuted for taking photographs of topless women with his mobile phone.

He pleaded guilty in Waverley Local Court to behaving offensively in a public place after he admitted roaming Coogee beach and snapping the female bathers.

The case is believed to be the first time the charge of causing a public offence has been used to prosecute the illicit use of a mobile phone.

Pauline Wright, chairwoman of the Criminal Law Committee of the Law Society of NSW, said the “creative use” of such a charge reflected the failure of current legislation to cater for new mobile phone technology.

Ms Wright said there was a valid argument that Mackenzie’s actions did not constitute offensive behaviour within the meaning of the Crimes Act. “A lot of people would find what he did offensive, but ... you have to prove that he intended to offend,” she said.

The charge normally applied to cases such as indecent exposure and being drunk and disorderly in a public place, Ms Wright said, adding: “Unfortunately legislation hasn’t caught up with technology.”

Magistrate Lee Gilmore spared the man a potential jail term and fined him $500.

Source: AAP 2 Dec 2004

NZ proposes new law to outlaw covert filming

The NZ Law Commission has proposed the criminalisation of filming people in ‘intimate situations’ without their knowledge or consent. The Commission proposes three new offences – making, distributing and possessing such films, with penalties of up to three years imprisonment and forfeiture of offending material and equipment.

Source: OFPC NZ newsletter Private Word, Issue no 52 – see http://www.privacy.org.nz/top.html

NZ Privacy Commissioner issues Credit Reporting Code

On 6 December, the NZ Privacy Commissioner, Marie Shroff, issued a Code of Practice on Credit Reporting. The Code has been under development for several years, and has involved public consultation including a draft Code in 2003; and detailed discussions with the credit industry and the credit reference agency Baycorp Advantage, which dominates consumer credit reporting in NZ as in Australia, where it is already specifically regulated under the Privacy Act 1988.

The NZ Code modifies the operation of the Privacy Act 1993 Information Privacy Principles in the operation of consumer credit reporting in NZ. It will place new obligations on credit providers and credit reporters (as credit reference agencies are known in NZ), and will give individuals a right of access to their credit information file, free of charge, from 1 April 2005. The majority of the Code provisions will come into force from April 2006.

Source: Media Releases. See http://www.privacy.org.nz/top.html

Privacy Guidelines for use of RFID (smart tags)

The international standards organisation EPC Global has published guidelines for the use of electronic product codes or smart tags – using Radio Frequency Identification Device (RFID) technology. The organisation states that “To allow the Electronic Product Code™ (EPC) to realise its potential for consumer, retailer and supplier benefits, it is important to address privacy concerns prompted by the current state of the technology while establishing principles for dealing with its evolution and implementation.”

See http://www.epcglobalinc.org/public_policy/public_policy.html

Public attitudes to privacy in Australia – new research

To assist in the current review of the private sector provisions, the federal Privacy Commissioner in October 2004 released the results of the latest in a series of research surveys into community attitudes and understanding of privacy.

The survey was conducted by Roy Morgan Research in May 2004.

See http://www.privacy.gov.au/publications/rcommunity/index.html

First Annual Report from Northern Territory Information Commissioner

The NT Information Commissioner, Peter Shoyer, has issued the first Annual Report on the operation of the Territory’s Information Act, which came into effect on 1 July 2003.

Source: http://www.nt.gov.au/justice/infocomm/publications/index.shtml

Hong Kong Commissioner moves on

Hong Kong Privacy Commissioner for Personal Data Raymond Tang has resigned after 3 years of his five year term, to take up the Chair of the HK Equal Opportunities Commission. The resignation took effect on 12 January. There is no news yet of a replacement – Deputy Commissioner Tony Lam will be Acting Commissioner in the interim.

US Patriot Act threatens privacy in other jurisdictions

It has become clear that the controversial US Patriot Act, passed in the immediate aftermath of the 2001 terrorist attacks, has the potential to require US based companies operating in other countries to disclose personal information to US authorities despite local privacy laws.

Following an extensive investigation, the Information and Privacy Commissioner of British Columbia has recommended an immediate freeze on all outsourcing of public data to US-connected firms - his report is at http://www.oipcbc.org/

Source – various media reports

Introduction to Privacy Law (am) & Privacy Law Advanced Class (pm)

• Private sector Wednesday 2 March 2005

• NSW Public Sector Thursday 10 March 2005

Privacy in Practice,

• Wednesday 9 March 2005 – full day.

Three ‘mix and match’ seminars by UNSW Continuing Legal Education and Baker & Mackenzie Cyberspace Law and Policy Centre at UNSW, in conjunction with Anna Johnston, Salinger & Co and Nigel Waters, Pacific Privacy.

For details, see www.cle.unsw.edu.au or phone UNSW CLE on [phone]