General law protection of privacy
Graham Greenleaf
University of New South Wales
Last updated: September 2008
General law on privacy
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Why is special privacy legislation needed?
4 main sources of general law protection
Constitutional protection
Special ‘Privacy torts’
Breach of confidence
Other tortious protection
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See RG General Law Protection of Privacy
September 2008
LAWS 3037 Data Surveillance &
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Constitutional protection
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Constitutional protection (express/implied)
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Statutory 'Bill of Rights' privacy
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USA, HK (Basic Law) many other countries
NZ, HK (BORO), UK, Canada
Australia
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No significant implied constitutional right nor a
statutory Bill of Rights
International conventions have limited impact in
domestic law (see next Topic)
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Statutory interpretation to
protect fundamental rights
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Courts may protect privacy by restrictive
interpretation of statutes to protect 'fundamental'
rights.
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Coco v The Queen (1994) 179 CLR 427 - Australian High
Court - involved privacy issues relating to listening devices
and the interpretation of the Invasion of Privacy Act 1971
(Qld). ‘The Courts should not impute to the legislature an
intention to interfere with fundamental rights’.
Potter v Minahan (1908) 7 CLR 277 ‘it is .. improbable that
the legislature would overthrow fundamental principles, [or]
infringe rights … without expressing its intention with
irresistible clearness…’
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Hong Kong (1)
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International Covenant on Civil and Political Rights
(ICCPR)
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UN convention, 1966; UK acceded for HK
A17(1) ICCPR . ‘No one shall be subjected to
arbitrary or unlawful interference with his privacy,…’
A39 Basic Law in effect entrenches ICCPR as part of
Hong Kong law;
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Legislation cannot be inconsistent with the ICCPR
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Hong Kong (2)
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HK Bill of Rights Ordinance (BORO) gives the
ICCPR/A39 a statutory basis; s8 is HK Bill of Rights
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HK Bill of Rights A14 implements ICCPR A17(1)
s7 only binds the government and public authorities and
those acting on their behalf
Gives a right of defence against State actions
Does not create direct ‘horizontal’ rights against other
citizens
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It has also been limited, even in relation to legislation, to not apply
to legislation creating only private rights (Tam Hing Yee v Woo Tai
Wan (1991) 1 HK Public Law Reports 261)
 This was before Basic Law and A39 - arguable that no
legislation can be inconsistent with ICCPR, irrespective of
BORO
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No significantLAWS
BORO
on A14&yet
3037cases
Data Surveillance
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Information Privacy Law
Hong Kong (3)
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Can the BORO create a right of privacy against
governments?
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S6 BORO provides Courts may grant remedies for breach of
Ordinance - including ICCPR via A14
It may possibly create a right of privacy by itself (HKLRC 2004) but
this has not been tested
Other ‘Bills of rights’ may provide relevant caselaw
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A 8 European Convention on Human Rights (ECHR) was
considered to be limited in horizontal effects; UK case law
(see Campbell v MGN later) changes this
US Bill of Rights is also limited in horizontal effect
See Topic ‘Privacy protection in international agreements’
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HK (4)- Other relevant Basic
Law provisions:
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A28 Basic Law- 'The freedom of the person of Hong Kong residents
shall be inviolable. …. Arbitrary or unlawful search of the body …
shall be prohibited’
A29 Basic Law: ' The homes and other premises of Hong Kong
residents shall be inviolable. Arbitrary or unlawful search of, or
intrusion into, a resident's home or other premises shall be
prohibited.’
A30 Basic Law: The freedom and privacy of communication of Hong
Kong residents shall be protected by law. No department or individual
may, on any grounds, infringe … except in accordance with legal
procedures …’
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A 39, A28, A29 and A30 are little tested yet in relation to privacy, but
decisions on European Convention on Human Rights and US Bill
of Rights decisions may be relevant
A30 now being tested in the HK courts re telecomms surveillance
A 29-30 are not directly protected in BORO
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Special ‘Privacy torts’
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US law - Since Warren and Brandeis’ “The Right to Privacy”
(1890) has developed 4 ‘privacy torts’ by a mixture of common
law and legislation:
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RG ‘A special tort of invasion of privacy?’
'intrusion’
'public disclosure of private facts'
'appropriation'
'false light'
Most other common law jurisdictions have not followed as yet,
either by common law or by statute:
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Canadian provinces have legislation
Hong Kong LRC has recommended statutory privacy torts (2004)
ALRC now recommends a statutory tort for Australia; NSWLRC
likely to follow
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Proposed privacy torts in Hong Kong
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HK Law Reform Commission recommends (2004)
statutory torts of invasion of privacy
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versions of ‘intrusion’ and ‘public disclosure’ torts
partly to comply with ICCPR A17
See the Executive Summary of the Report in Materials #1
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Privacy tort(s) - common law
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Common law courts still undecided in most countries
outside the USA
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But recent decisive rejection in the UK
However, adopted in NZ
Also now two District Ct decisions in Australia
Will breach of confidence expand further to protect
privacy, as it has done in the UK?
Will a separate privacy tort at common law emerge in
other countries? - or will it only do so by statute?
Will UK law diverge from Australian, Hong Kong or
other common law countries on either or both of
these points?
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UK courts consider a ‘privacy tort’
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Cases not involving breach of confidence these are the real test of a separate tort
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Kaye v Robertson [1991] FSR 62 - Actor
photographed without consent in private hospital
room
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Glidewell LJ held no right of privacy against intrusive
photography
Most other UK cases have involved extensions of
the law of confidence
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UK courts consider a ‘privacy tort’ (2)
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Douglas v Hello [2000] EWCA Civ 35 (UK CA) - Wedding of
actors filmed in secret by persons unknown despite clear notice
to all attending wedding that filming was not allowed; application
here was only for interim injunction against publication
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Sedley LJ found a strong case on privacy grounds: “The law no
longer needs to construct an artificial relationship of confidentiality
between intruder and victim: it can recognise privacy itself as a
legal principle drawn from the fundamental value of personal
autonomy”
Brooke LJ found a strongly arguable case on confidentiality
grounds, but not (in the event of a photographer unaware of the
warnings) on ‘breach of privacy’ grounds (like Kaye v Robertson)
[Now decided by CA in 2005 on confidence grounds]
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UK courts consider a ‘privacy tort’ (3)
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A v B & C [2002] EWCA Civ 337 
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CA attempts to limit consideration of a
privacy tort: in most ‘if not all’ situations
where privacy protection is justified, it will
be protected by breach of confidence (at
least since the Human Rights Act 1998,
which expands UK confidence law)
The ‘vexed question’ of a separate privacy
tort may then be ignored
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UK courts consider a ‘privacy tort’ (4)
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Wainwright v Home Office [2003] UKHL 53
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Mother required to undress to visit prisoner son, but no physical
contact; issues of visibility through window; emotional distress
Unanimous HL decision that there is no general tort of invasion of
privacy in English law
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Court of Appeal followed Kaye etc to reach same conclusion
Distinguishes privacy as a value supporting extensions of some
existing principles from privacy as a legal principle itself
Sees Douglas v Hello as merely a call to re-name (and extend?)
the action for breach of confidence
A very conservative judgment: simply finds there are no precedents
for such a tort (without detailed examination) and ‘rejects the
invitation’ to develop one.
See Patrick Gunning – ‘Casenote on Wainwright v Home Office’ (2003)
10(6) PLPR 111 (in materials)
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UK courts consider a ‘privacy tort’ (5) Implications of Wainwright for Australia?
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Casenote by Gunning (materials) (2003) 10
PLPR 111
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HL decisions only influential, but cogent
arguments needed to depart from a unanimous
HK decision
Hoffman LJ said UK Human Rights Act 1988
‘weakens’ arguments for a privacy tort - but the
‘overwhelming impression’ of the judgments is
they would have reached the same decision in its
absence
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NZ’s privacy tort?
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New Zealand common law may have developed a
privacy tort, at least of the ‘public disclosure of private
facts’ type
Earlier cases (Tucker, Bradley) involved only
interlocutory injunctions being granted - See Reading
Guide for discussion
Prof Burrows identified elements from cases:
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(I) A ‘public disclosure’ of (ii) ‘private‘ facts.
(iii) ‘… highly offensive and objectionable to a reasonable
person of ordinary sensibilities.’
(iv) Subject to public interest defence.
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NZ’s privacy tort (2)
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Earlier NZ cases supported a tort of public
disclosure of private facts:
P V D [2000] 2 NZLR 591 (Nicholson J)
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P sought to restrain newspaper from disclosing he
had been treated at a psychiatric hospital
No breach of confidence: info may have been
received from a non-confidential source
Adopts same 4 factors as Burrows as a tort of
‘public disclosure of private facts’
Final injunction in favour of P, prohibiting D from
publishing anything linking P to events concerned
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NZ’s privacy tort? (3)
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Hoskins v Runting
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Magazine took secret photos of TV presenter’s wife going shopping
with her two young children; their photos had never been published;
action taken for children (see facts in Evans article in materials)
1st instance (2003) Randerson J (see Evans 10 PLPR 61)
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No confidence claim due to public location (and no confidences
breached in finding him)
Would not be a ‘public disclosure of private facts’, due to the photo
being taken in a public place
Rejects existence of general privacy tort in NZ: no authority; too big a
departure for the Courts
Supports UK approach of extension of the law of breach of confidence
to some situations where ‘a pre-existing relationship is no longer
necessary, and a duty to respect confidence may be imposed having
regard to the nature of the material which comes into the D’s
possession’
LAWS 3037 Data Surveillance &
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NZ’s privacy tort? (4)
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Hosking v Runting [2004] NZCA 34
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Evans (2004) 11 PLPR 34 article (in materials)
CA by 2/1 upheld tort of wrongful publication of private facts
Basis of tort: (I) facts in respect of which there is a
reasonable expectation of privacy; (ii) publicity to facts that
would be highly offensive to an objective reasonable person
Here, P’s claim rejected on facts: innocuous photos in public
places do not satisfy either element
Indicates damages, not injunction, primary remedy
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Best way to balance privacy with right of freedom of expression
in NZ Bill of Rights Act 1990
Similar test re injunction availability as in defamation
All 3 JA rejected UK approach of expanding breach of
confidence
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Information Privacy Law
Australia - privacy tort?
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Lenah v ABC [2001] HCA 63
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Casenote by Gunning; article by Lindsay
Information obtained by trespassers in a possum abbatoir
and passed to a media organisation
Lenah’s 3 grounds for restraining ABC (all dismissed):
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(I) Simply unconsionable to publish material knowingly obtained
unlawfully (Earlier cases had restrained media where they
were the trespassers - not so here) - HCA majority rejected
unconsionability as a separate equitable ground for restraint.
(II) Information obtained by trespass should be treated by
analogy with confidential information, and third party recipients
restrained (P had conceded there was no confidentiality - fatal
flaw in case?) - HCA majority rejected this (but 4 favoured other
grounds of restraint)
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Australia - privacy tort? (2)
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Lenah’s 3 grounds for restraining ABC (cont):
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Some raised equitable interests in copyright material, or a
fiduciary relationship (grounds not argued)
(II) A tort of invasion of privacy
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Some considered no privacy rights for corporations
None found for Lenah on this ground
Lenah’s privacy implications
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5/6 HC Js considered the question of a tort of invasion of
privacy still open
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Victoria Park is no authority that there is no such tort
Some only suggested extensions of confidence law
See comments by Lindsay on effect on Australian law of ‘ad
hoc somewhat chaotic reasoning’
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Australia - privacy tort? (3)
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Grosse v Purvis [2003] QDC 151
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See articles by Telford; Greenleaf
Only case to find a privacy tort - but no appeal from District Court decision
Facts essentially a case of ‘stalking’ - elements found - $178,000 damages
Skoien J’s elements of the action:
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(a) willed act by D
(b) intruding on privacy or seclusion of P
(c) manner highly offensive to a reasonable person of ordinary sensibilities
(d) causes P detriment or hinders P doing lawful acts
An ‘intrusion’ version of a privacy tort - no appeal, so will not be a significant
basis for Australian developments
Case was settled and did not proceed on appeal to Qld SC
 Not given any weight in Giller v Procopets [2004] (private facts)
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Australia - privacy tort? (4)
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Doe v ABC (2007) VCC 281
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Journalists disclosed identity of rape victim in new stories;
psychological damage followed
Hempel J found for P on 4 grounds including:
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Breach of confidence - Says applies Gleeson CJ’s criteria for
breach of confidence re information where a person has a
reasonable expectation it will remain private
Invasion of privacy tort - Here, held only that there was a tort of
negligent unreasonable disclosure of private facts
Graham Greenleaf ' Doe v ABC: A new version of a privacy
tort?' (2007) (unpublished casenote)
Did not proceed on appeal to Vic SC
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Australia - privacy tort? (4)
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ALRC recommends privacy tort (2008) (Ch 74)
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Rec. 74-1 for a statutory cause of action for a ‘serious
invasion of privacy’ where:
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There is a ‘reasonable expectation of privacy’;
Re conduct is ‘highly offensive to a reasonable person of
ordinary sensibilities’;
Public interest in protecting privacy outweighs other public
interests (including freedom of expression); and
Intentional or reckless acts involved.
Non-exhaustive list of conduct within the action to be
included
Any common law privacy action to be abolished
Press Release summarises (in materials)
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Australia - privacy tort? (4)
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Criticisms (Greenleaf & Waters submission):
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Does ‘offensive’ capture all reactions? (eg accidental
disclose of HIV status - distressing)
Why should liability for negligent actions be completely
exempt?
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Can’t other competing public interests limit this?
Should the Privacy Commissioner have some role in such
actions? Eg standing to intervene
The proposed defences do not explicitly require
proportionality to the harm of the invasion
Why not limit damages (eg $40K in NSW legislation) instead
of excluding negligence?
NSWLRC yet to make its final report on an action
September 2008
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Breach of confidence (BoC)
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RG 4.4. Breach of confidence re personal
information
Limited scope of the action
Relationships involving obligations of
confidence
'Improperly obtained information’
Governments and obligations of confidence
Bof C an essential part of all information
privacy laws - make no sense without it
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BoC - Scope and limits
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Three classic elements (Coco v Clarke 1966)
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Scope/requirement of relationships is now uncertain
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(I) Information having ‘the quality of confidence’
(ii) Disclosure under circumstances of confidence
(iii) Unauthorised use (including disclosure and excess use)
Duty uncertain for most modern commercial relationships
Now uncertain if (ii) (any prior relationship) is needed; nature
of information alone may create obligations of confidence
Breach of confidence is expanding, but why?
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to cover ‘obtaining’ of information in some circumstance?
(where unconscionable?)
or just because some information is considered ‘private’?
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BoC - Possible parties
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Is duty only owed to the discloser of the information?
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No duty owed to the ‘data subject’ per se (see Fraser v Evans
[1969] 1 QB 349) - recent cases without relationships open this up
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Third party recipients of info. will owe a duty once they
become aware of the original circumstances of confidence
Situations to consider (Who can S sue?)
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S - subject of information; A - ‘discloser’ [often same as S: S/A]
B - recipient [from A] / collector; C - 3rd P recipient [from B]
D - Rest of World
S/A to B to D
S/A to B to C to D
A to B to D
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BoC - Expansion in recent years
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Franklin v Giddens [1978] 1 Qd R 72 (Qld SC) - theft of
budwood from orchard gave rise to BOC action
Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804:
Laws J said "I entertain no doubt that disclosure of a photograph
may, in some circumstances, be actionable as a breach of
confidence..’ - surreptitious photography
Douglas v Hello [2000] EWCA Civ 35 (UK CA) - Wedding of
actors filmed in secret by persons unknown despite clear notice
to all attending wedding that filming was not allowed
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Brooke LJ found a strongly arguable case on confidentiality
grounds, but not on ‘breach of privacy’ grounds
Sedley LJ found a strong case on privacy grounds (see earlier)
An injunction against publication was refused on the balance of
convenience, partly because privacy already surrendered for profit.
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BOC - Expansion in recent years
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Lenah v ABC [2001] Gleeson CJ at [42] and [55] seems to proposed a
test for BoC - others have interpreted it this way
A v B & C [2002] EWCA Civ 337 - CA’s ‘Guideline’ (ix):
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Adopts Gleeson CJ’s Lenah test of what is ‘private’
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‘If there is an intrusion in a situation where a person can reasonably
expect his privacy to be respected then that intrusion will be
capable of giving rise to liability in an action for breach of
confidence unless the intrusion can be justified.’
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‘The bugging of someone's home or the use of other surveillance
techniques are obvious examples…’.
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‘But the fact that the information is obtained as a result of unlawful
activities does not mean that its publication should necessarily be
restrained …’ as Bof C [see Lenah]
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‘On the other hand, the fact that unlawful means have been used …
could well be a compelling factor...’
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BoC - Campbell v MGN
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Campbell v Mirror [2002] EWHC 499 (QB) Morland J
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Naomi Campbell filmed leaving Narcotics Anonymous
meeting (ie in a public place)
breach of confidence (disclosure of NA attendance) by a
person unknown (assumed to be her staff or NA staff) was
enough to make the Mirror liable as 3rd P for photographing.
followed Gleeson CJ in Lenah v ABC in deciding that NA
attendance was 'easily identifiable as private and disclosure
of that information would be highly offensive to a reasonable
person of ordinary sensitivities'.
Reversed on appeal by Court of Appeal, then original
decision upheld by House of Lords - see article by
Lindsay for analysis
September 2008
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BoC - Campbell v MGN
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Campbell v Mirror [2002] EWHC Civ 1373
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Court of Appeal allowed MGN's appeal
Photos here 'were of a street scene. They did not
convey any information that was confidential. That
information was conveyed by the captions.’
Covert taking of photos was not relied on as a
ground of complaint
Additional information in captions (NA attendance)
was not sufficiently offensive (on Gleeson CJ test)
- contra Morling J
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BoC - Campbell v MGN
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Campbell v MGN [2004] UKHL 22
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Facts: Naomi Campbell was photographed (in a public
street) leaving a Narcotics Anon meeting; C did not claim
drug addiction was confidential (justified because she had
denied it) but that NA attendance was confidential as private
info, and which MGN had not justified publishing
HL held BoC could provide protection, but disagreed on
some aspects of facts
HL decision influenced strongly by UK obligations under
European Convention on Human Rights
See D Lindsay ‘Naomi Campbell in the House of Lords’
(2004) Vol 11 No 1 PLPR p4
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BoC - UK’s obligations to protect
privacy
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Von Hannover v Germany [2004] ECHR
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Held that Member States of ECHR had an
obligation under A8 to protect individuals from
unjustified invasions of private life by other
individuals or organisations (ie ‘horizontal effect’) if
necessary by legislating
Princess Caroline of Monaco sued re photos of
her engaged in ‘private’activities in public places
published by German magazines
September 2008
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BoC - Douglas v Hello! (No 2)
See T Wilson in (2005) 2(1) Priv LB 7-10
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TJ held in favour of both Douglases and OK!
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(i) Re Douglases, BoC because it was a private event £7000 each for distress and inconvenience
(ii) Re OK!, £1m+ for BoC (like a trade secret), on the basis
of the exclusive licence to OK!
Douglas v Hello! (No 2) [2005] EWCA Civ 595
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Unanimous CA judgment upholding (I), reversing (ii)
See [74]-[82] the CA’s interpretation of Campbell
Finds [82] essence of HL in Campbell as “knowledge, actual
or imputed that information is private will normally impose on
anyone publishing that information the duty to justify what, in
the absence of justification, will be a wrongful invasion of
privacy.”
LAWS 3037 Data Surveillance &
September 2008
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BoC - Douglas v Hello! (No 2)
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CA also redefines the law of BoC [83]:
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‘circumstances of confidence’ not necessary ‘if it is
plain that the information is confidential’
‘for … “confidential” one can substitute… “private”’
“What is the nature of private information? It
seems to us that it must include information that is
personal to the person who possesses it and that
he does not intend shall be imparted to the
general public”
Does this assist clarity in UK law?
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What is its possible relevance in Australia?
September 2008
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BoC - Current UK position
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Max Mosley v News Group Newspapers Limited
[2008] EWHC 1777 (QB)
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An ‘old fashioned’ BoC case based on a pre-existing
relationship - but Ct explains why UK BoC has changed
Explains relationship between UK and European laws,
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September 2008
Equal standing of A8 (privacy) and A10 (freedom of expression)
of ECHR
Human Rights Act 1988 (UK) requires Cts to implement
‘Horizontal effect’ recognised in Campell v MGN
Role of ‘proportionality’ in public interest defences
Privacy interests still exist in public places (Von Hannover,
Peck)
LAWS 3037 Data Surveillance &
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BoC - Current UK position (2)
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Mosley case (cont.)
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Here:
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Recording was on private property, not in public
Sexual activity - ‘at the extreme of intimate intrusion’
‘Woman E’ breached ‘old fahioned duty of confidence’ as
well as A 8 rights
Public interest based on (false) allegations of Nazi roleplay and Holocaust mockery; publication was
inconsistent with ‘responsible journalism’
Relevance to Australia?
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September 2008
Will our BoC law go in this direction (despite lack of A8)?
Would a statutory right in Australia be similarly
interpreted?
LAWS 3037 Data Surveillance &
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BOC - Governments
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Johns v Australian Securities Commission (1993)
178 CLR 408
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a statute giving a power to obtain information (including
personal information) defines the purpose for which it can
be used, expressly or impliedly, so that any other use is a
breach of a statutory duty of confidence.
Applies to all governments, whether IPPs apply or not
UK: similar decisions in Marcel v Commissioner of
Police [1992] Ch 225 and Morris v Director of the
Serious Fraud Office [1993] 3 WLR 1
Query inconsistent HK decision Hall v
Commissioner of ICAC [1987] HKLR 210
Also Privacy
Act 1988 (Cth) Pt VIII re Cth Govt
LAWS 3037 Data Surveillance &
September 2008
Information Privacy Law
Piecemeal tort protection
RG 'Other Tortious Protection of privacy'
All other torts have significant defects
Defamation
Negligence
Trespass
Intentional infliction of emotional distress?
Trespass to the person (battery and assault)
Private nuisance
Copyright
Malicious falsehood
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September 2008
LAWS 3037 Data Surveillance &
Information Privacy Law
Defamation
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Requires falsity - most privacy invasions involve
disclose of true information
Qualified privilege defences do not require fair
practices
It has no mechanism for people to discover when
defamations occur
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Useful as a supplement to access and correction IPPs
Very expensive remedy
In summary
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September 2008
mainly useful for false media disclosures
Rarely useful against disclosures in bureaucratic settings
LAWS 3037 Data Surveillance &
Information Privacy Law
Negligence
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Liability for negligent statements is very limited
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The recipient can sometimes sue (Hedley Byrne etc)
Can the subject of the information ever sue?
Spring v Guardian Assurance PLC (1994) - House of Lords
held employer owed a duty of care to the subject of a
negligent reference, an ex-employee
Sullivan v Moody [2001] HCA 59 - investigators of sexual
assault did not owe duty of care to one parent concerning
information about the other
Lai Hing Tong v Attorney-General [1990] 1 HKLR 56recovered damages in negligence for the incorrect recording
a communication of a criminal record, as a consequence of
which he lost three positions.
September 2008
LAWS 3037 Data Surveillance &
Information Privacy Law
Intentional infliction of emotional distress?
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Wilkinson v Downton [1897] 2 QB 57 - damages
for nervous shock suffered by a woman when told
(falsely) that her husband's legs were broken
Home Office v Wainwright
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Court of Appeal - Wolff LCJ considered Wilkinson should
be limited to 'actual recognised psychiatric illness or
bodily injury’; embarrassment of stripping not sufficient
House of Lords - Agreed, adding no applicability because
there there was no intention to harm by prison officers
This tort is now not likely to provide signficant
privacy protection
September 2008
LAWS 3037 Data Surveillance &
Information Privacy Law
Trespass to the person
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Unlikely to be extended as privacy
protection
Home Office v Wainwright [2001] EWCA
Civ 2081 
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September 2008
battery is restricted to direct physical contact,
not where persons are caused to do something
to themselves
No assault as there was no threat to undress P
by force
LAWS 3037 Data Surveillance &
Information Privacy Law
Trespass to land
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Requires that ‘without justification, the defendant
enters on the plaintiff's land, remains on such land
or places any object upon it.’ (HKLRC 1999)
physical encroachment upon premises is needed,
such as
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D installs a listening device inside P’s premises
entry onto premises by unauthorised TV crew
Does not apply to photography from adjoining land
(Victoria Park), from overhead (Bernstein) etc
Damages can be high eg TCN9 v Anning [2002]
NSWCA 82: reducing damages from $100K to
$50K
September 2008
LAWS 3037 Data Surveillance &
Information Privacy Law
Private nuisance
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September 2008
Nuisance requires 'a condition or activity which unduly
interferes with the use or enjoyment of land' (Clerk and
Lindsell on Torts)
‘The interference must continue for a prolonged period of
time. It may take the form of physical damage to the
property or the imposition of discomfort upon the
occupier.’ (HKLRC 1999)
Khorasandjian v Bush [1993] QB 727 - extension of
nuisance to harassment by telephone calls
Bernstein v Skyviews [1978] 1 QB 479 - no trespass to
land to take a single photo from an aeroplane, but
constant surveillance might be
LAWS 3037 Data Surveillance &
Information Privacy Law
Copyright
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If a person owns copyright in the form of expression of
information about them (and, most likely, by them), then
copyright will prevent reproduction etc of that expression
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Does not provide protection for the underlying information / facts
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Increasingly important with user-generated content (UGC) on sites
such as MySpace and Flickr
Again, this limit is very important with UGC sites
Loss of copyright to UGC sites through Terms of Service (eg
Photobucket) can mean loss of privacy protection
September 2008
LAWS 3037 Data Surveillance &
Information Privacy Law
Other forms of protection
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Breach of contract, and inducement to
breach of contract
Breach of statutory duty
Administrative law
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very rarely provides damages or other
compensatory mechanisms
Often overlap IPPs, but IPPs may provide
better remedies, particularly damages
September 2008
LAWS 3037 Data Surveillance &
Information Privacy Law