The SA Law Reform Institute is recommending the State’s Government establish a civil law, with a public interest test, to cover serious invasions of privacy in the digital era.

According to the Institute’s Report, it is unlikely that a common law privacy action will emerge through the courts in Australia in the foreseeable future. Accordingly, the Institute recommends that Parliament enact a cause of action for serious invasions of personal privacy.

The proposal is for a cause of action “which not only addresses the broad variety of factual circumstances in which interferences with a person’s privacy can occur, but which also strikes an appropriate balance between the public interest in preventing and dealing with interferences with a person’s dignitary interests and autonomy, and the strong public interest in competing matters such as freedom of expression.”

In an unexpected and controversial move, a New South Wales parliamentary report recommends that the State ‘take the lead’ by introducing a statutory cause of action for serious invasions of privacy, reports Allens.

The US Federal Trade Commission (FTC) is taking action against people who post nude pictures of others along with identifying personal information, reports Vorys.

The Australian Law Reform Commission (ALRC) has proposed a new statutory tort to deal with invasions of privacy in the digital era.

In its Final Report on “Serious Evasions of Privacy in the Digital Era“, the ALRC proposed that the new tort should apply where there has been:

• a serious
• intentional or reckless
• intrusion into seclusion or misuse of private information
• of a person in a situation in which they have a reasonable expectation of privacy
• where the public interest in privacy is not outweighed by any countervailing public interests

The ALRC’s press release gives two examples of the type of privacy invasion to which the new tort will apply:  posting sexually explicit photos of someone on the internet without their permission, and making public someone’s medical records.

The Australian government is yet to release its response to the ALRC’s proposal.

At its 26th session recently, the United Nations Human Rights Council (UN HRC) adopted a resolution on the promotion, protection and enjoyment of human rights on the internet.

The UN HRC resolution affirms “that the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice.”

The resolution also calls on all states to address security concerns on the internet with respect to their international human rights obligations, through “national democratic, transparent institutions,” and to adopt national internet-related public policies with the “objective of universal access and enjoyment of human rights at its core,” though “transparent and multi-stakeholder processes.”

Europe’s highest court has declared invalid on privacy grounds the EU Directive on retention of electronic communications data.

EU Directive 2006/24/EC harmonises the obligations on communication service providers to retain traffic, location and user identification data. The Court of Justice of the European Union ruled that by requiring the retention of those data and by allowing the competent national authorities to access those data, the Directive “interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data”.

On 18 December 2013, the United Nations General Assembly adopted by consensus Resolution A/RES/68/167 on ‘The right to privacy in the digital age’.

As IP Watch reports, the genesis of the resolution is concern about the pervasive surveillance programs revealed by Edward Snowden. While the resolution in question does not directly condemn any particular practice, it can be understood to be criticising some of the practices that have been discussed in the press, in particular pervasive extraterritorial surveillance.

While resolutions do not have the same legal effects as treaties, they can nevertheless be considered a form of  “soft law”, because they outline agreed positions on specific issues. Significantly, the resolution calls on the UN High Commissioner for Human Rights to submit a report on the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or interception of digital communications and the collection of personal data, including on a mass scale.

California has enacted a first-of-its-kind state law criminalizing “revenge porn” – the distribution of private, explicit photos of other people on the Internet, usually by ex-lovers or spouses, to humiliate them.

California already has a law that makes it a crime to take sexually explicit photos of another person without his or her consent. The new revenge porn law extends that crime to anyone who takes nude pictures of another person with the understanding that those images are to remain private but subsequently disseminates the images without permission, reports Duane Morris.

An activist for the new law called it “an encouraging first step” – but said it fails to criminalise the distribution of self-taken photos, or “selfies,” that were shared willingly with spouses or partners but later posted online without the subject’s consent, Reuters reports.

The Advocate General of the Court of Justice of the EU has concluded there is no ‘right to be forgotten’ under the present EU law.

According to the  AG’s opinion in the ‘Spanish Google case’, the right does not exist in the present EU Data Protection Directive.

The final decision of the CJEU is awaited before the end of the year, probably at a time when the proposed EU Data Protection Regulation will still be under discussion.