Two documents released this week highlight divergent views among the community and politicians.
The Office of the Australian Information Commissioner (OAIC) yesterday sought to reinforce its legitimacy through a report on community attitudes about privacy, and the Australian Law Reform Commission released a discussion paper on changing privacy law on Tuesday.
Unsurprisingly, the message from the OAIC survey is that Australians of all ages do care about improper information sharing, collection and processing by businesses and government agencies.
That’s a bit disquieting for some pundits, who’ve maintained that young people recognise they have no privacy in a digital environment. It is also disquieting for academics who’ve argued that privacy rights are a nonsense embraced by the woolly-minded middle classes and which serves to protect the guilty.
The OAIC has been criticised for a permissive and belated response to the bad privacy practises of leading tech entities such as Sony, Telstra and Vodafone. The OAIC has failed to leverage its moral authority, independent of statutory power, unlike peers overseas and in the Australian states (notably Victoria).
It has been averse to engaging with civil society bodies, raising the spectre of bureaucratic capture by commercial interests and by bodies such as the Attorney-General’s Department that emphasise bureaucratic convenience (such as data retention) over human rights.
The survey says …
The survey tells us most Australians do care about privacy. Some aren’t engaging with businesses they consider untrustworthy. Some are complaining about privacy abuses. But the survey doesn’t get to grips with apparent inconsistencies between consumer behaviour and stated attitudes.
For example, some young people claim their privacy is important but still engage in “too much sharing” on social networks such as Facebook.
Consumers have a perception that governments – despite statements by bodies such as the OAIC – actually don’t care much about the privacy of ordinary people.
In the next OAIC survey perhaps we can look forward to pointed questions about consumer responses to revelations about PRISM and other comprehensive surveillance by the governments of liberal democratic states.
Answers to a survey, after all, reflect what questions you ask.
The statistics in the current survey could indicate that consumers do care about privacy but have a sense that they are not going to be helped if abuses take place. Some consumers will be heartened by news that the amended national Privacy Act will provide better protection when it commences next year. Sceptics will doubt whether the OAIC has both the will and the resources to give effect to that protection.
Consumers and public policy analysts concerned with the information differential (governments, marketers and other businesses know a lot about us, we know little about them) may more broadly ask questions about government secrecy.
It is ironic that several government bodies, including the OAIC, are resisting access under freedom of information law to documents about the development of privacy policy.
Time for a law to better protect privacy
Trust in government, and specifically in regulators such as the OAIC, is encouraged by best practice and an ethos of openness that is consistent with the formal objectives of the Freedom of Information Act 1982.
The OAIC survey doesn’t tell us anything that is really new. It does however provide context for a more important document, also released this week. This is the Australian Law Reform Commission’s report on serious invasions of privacy.
A statutory tort of serious breach of privacy was proposed by the then Attorney-General in 2011. The reform had been recommended by the NSW Law Reform Commission, the Victorian Law Reform Commission and Australian Law Reform Commission. It has since been recommended by the Victorian Parliament Law Reform Committee.
That tort would allow some whose privacy had been disregarded to take action in an Australian court. That action could gain compensation, an apology and acknowledgement of wrongdoing.
The proposal was met with hyperbole by some vested interests (one journalist damned the proposal as a sinister plot). But contrary to their concerns, the law reform would not be unworkable, would not crimp legitimate free speech or the media and would not prevent legitimate law enforcement activity.
In an apparent attempt to avoid the heat, the Gillard government initially ignored the proposal and then passed it to the Australian Law Reform Commission.
The Commission has now released a detailed and thoughtful consultation paper. It seeks responses to more than 20 questions about principles and practicalities.
Given explicit support in the earlier reports for law reform to protect privacy and the clear indication in the OAIC that voters do care, it is likely the Commission will next year recommend that the Abbott government change the law to introduce a tort.
That recommendation will test whether politicians listen to what consumers want and deserve.