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InfoRM Privacy Update – 22 March 2019

Home Insights InfoRM Privacy Update – 22 March 2019

In this edition of InfoRM:

Human Rights Review Tribunal awards $70,000 for emotional distress damages against a blogger

The Human Rights Review Tribunal (Tribunal) has again demonstrated its willingness to award significant awards for emotional distress in its latest decision concerning blogger Cameron Slater. It is a significant decision on the meaning of what is protected as "news activity" and provides an interesting case study of the wide reach of the Privacy Act and the potential for it to provide an alternative remedy to pursuing defamation proceedings through the courts.

Mr Slater was accused of publishing personal information as supposed justification for blogs he had written, described by the Tribunal as an "extended assassination" of character of the complainant. Mr Slater sought to rely on a defence available under the Privacy Act for the publication: he argued that he is a "news medium" and the publication of the personal information was a "news activity" and therefore not covered by the Privacy Act. In separate proceedings, the High Court held Mr Slater failed to mount a credible defence to a claim of defamation.

The Tribunal concluded that Mr Slater was a news medium but that his disclosure of the personal information (in most cases) was not a news activity. The Tribunal concluded it was implicit that the exception should be limited to "responsible news activity". That has potentially wide ramifications for other news media should they publish information that falls short of the Tribunal's threshold of responsible activity. The Tribunal considered 12 blog posts with this lens, finding that only one was a news activity. The Tribunal considered the remainder could in no way be considered to be news, or observations on news or current affairs, and the news activity exception was unavailable to Mr Slater.

The Tribunal readily concluded there was an interference with privacy. In considering what emotional harm damages to award, the Tribunal considered the following factors justified an award within the third (and highest) band of emotional distress damages:

  • the fact the medium of publication was a blog with unrestricted access by the public;
  • disclosure was for a continuous period of six months;
  • disclosure was part of an "extended assassination" of character;
  • the allegations and opinions of Mr Slater were "extreme"; and
  • the serious effect of the disclosures on the complainant.

An award of $70,000 is the third highest award made by the Tribunal for emotional distress damages.  This continues the trend of the Tribunal taking a strong stance against deliberate breaches of privacy.

What about the Privacy Bill amendments?

In a previous edition of InfoRM (available here), we noted changes were proposed by the Justice Committee to the Privacy Bill relating to the definitions of "news activity" and "news medium" (now, "news entity"):

  • A new element has been introduced to the definition of news entity: being subject to an appropriate regulatory body. Blogs can be regulated, but will not necessarily be, and this requirement should make it reasonably easy to identify whether a blogger or other commentator is a news entity. 
  • The Justice Committee recommends a definition of "news activity" that explicitly covers non-traditional journalistic works. The Tribunal's view that the news activity must be responsible will presumably continue to be applied.

Privacy issues surrounding the use of DNA in criminal investigations

The Law Commission is calling for submissions on their review of the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act). The CIBS Act grants Police the powers to collect, retain and use DNA in criminal investigations, and also regulates two DNA profile databanks. The issues paper, released by the Law Commission in December 2018, considers whether the CIBS Act is keeping pace with developments in forensic science, international best practice and public attitudes and whether it gives appropriate recognition to law enforcement values and human rights, including the right to privacy.

The Law Commission has identified a number of issues with the CIBS Act, concluding it is time for a new Act. Among those concerns are some that touch directly on privacy, including:

  • What DNA can reveal: advances in technology mean investigators can infer information about a person's ethnicity or establish whether they have a genetic disorder or previously unknown genetic relationships. The Commission was concerned that this could lead to an infringement on the "right not to know" things about oneself.   
  • "Collective privacy interest" in DNA: personal information is information "about an identifiable individual" but that same information can be about more than one person. DNA is a prime example of information that may have a "collective" privacy interest, as a suspect can be identified from a relative's DNA. Over half of the profiles in the known person databanks were originally provided by consent, but those people were not told about the possibility of their DNA being used for familial searching when consent was given.  
  • Duration of retention of DNA samples: there have been situations where DNA samples have erroneously not been deleted from a DNA databank and where profiles are being retained on a databank longer than is necessary to achieve the original purpose of their collection. Both situations are inconsistent with the principle that agencies should not keep personal information for longer than the purpose for which it was collected.

The Law Commission suggests that any new Act will need to carefully consider where intrusions on privacy are necessary for law enforcement and ensure that such intrusions are minimised. Submissions on this issues paper are open until 31 March 2019. 

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