Notes from the iappANZ President, February 6, 2015

I am always on the lookout for interesting news and commentary to share with you in my weekly letters. I am happy to write that this week did not disappoint! A couple of articles caught my attention that have privacy implications and highlight continuing debates regarding the relevance of privacy to new and emerging technologies and the proposed tort for invasion of privacy.

First cab off the rank is the issue of drones. It appears that recreational drone use is rising in New Zealand. It is reported that there have been a number of complaints to both the NZ Police and the Office of the Privacy Commissioner (OPC) regarding drone usage, which prompted the OPC to post some guidance on drone use on its website on 21 January this year. The OPC has advised that the guidelines applying to camera operators also apply to drone operators. The article can be read here.

For those of you that may not be so well-equipped with drone knowledge, the typical drone type is the unmanned aerial vehicle (UAV), which can be outfitted with sophisticated camera surveillance equipment. UAVs are controlled remotely by an operator or by an on-board or central computer. Other types of drones include the unmanned ground vehicle and the remotely operated underwater vehicle. I like to think of them as remote mobile surveillance units ... the George Orwell 1984 kind of thing!

Moving on from drones, my attention was drawn to a small case in Western Australia decided last month. This case was a breach of confidence action by a woman against an ex-boyfriend who posted sexually explicit videos and photos of her on Facebook. There are only a handful of Australian cases on whether plaintiffs in breach-of-confidence cases can get compensation for emotional distress, as opposed to economic loss.

The case has some implications for the tort of privacy debate in Australia. In this case, Ms. Wilson sued her ex-boyfriend and former colleague Mr. Ferguson after he posted 16 photos and two videos of her on his Facebook page. Supreme Court Justice Robert Mitchell stated, "By posting the photographs and videos on his Facebook page, the defendant made them available to his approximately 300 'Facebook friends,' many of whom worked at Cloudbreak.” Justice Mitchell determined that Ms. Wilson was entitled to an injunction and $48,404 in compensation, including $35,000 for emotional distress and $13,404 for loss of wages while on leave.

You may recall that in June last year the Australian Law Reform Commission (ALRC) released a report that identified the elements of a potential civil action for serious invasions of privacy that would allow damages for emotional distress. Critics of the privacy tort have pointed to other available legal remedies that offer adequate protection for plaintiffs, with breach of confidence being one of the big ones. Of course, a breach of confidence requires a relationship between the person disclosing the information and the person receiving the information.

In a story that made international headlines this week involving the filming of an intimate encounter between coworkers in an office in Christchurch, New Zealand, it is fair to say that the couple has no legal redress available. New Zealand Privacy Commissioner John Edwards told Radio New Zealand, "There's very little likelihood that [the couple] would have any legal remedy … The people who were watching, we may criticize them for a lapse of decency in taking advantage of that, but it's unlikely there'd be any legal liability for their action."