Professor Austin’s main argument was that privacy should be protected for the same or similar reasons which underpin the protection extended to copyright.
Without giving too much of the presentation away, Professor Austin made a number of interesting points:
- Privacy nurtures and assists individuality. Copyright also protects individuality in the form of individual expression – particularly so, given the recent emphasis, by Australian courts, on the need for authorship in copyright.
- The reasons and arguments for protecting privacy and copyright often overlap. For example, in the UK case of His Royal Highness the Prince of Wales v Associated Newspapers Ltd (which concerned the publication of Prince Charles’ private diary entries) copyright subsisted in the journals because they were Prince Charles’ original work and a form of his individual expression. For similar reasons, a breach of privacy could arise based on the unwanted exposure of Prince Charles’ individual expressive choices.
- Privacy and copyright protect our right to make choices and ‘things that are our own’ both of which are central to human dignity.
Privacy law in Australia is presently undergoing significant reform. The Federal Government has released an Exposure Draft of the Australia Privacy Principles (which will replace the existing National Privacy Principles and Information Privacy Principles if the legislation is passed). The Exposure Draft is presently being considered by a Senate committee, which is due to report to Parliament by 1 July 2011. The parallels drawn by Professor Austin between copyright and privacy provide support for a ‘right to privacy’ in addition to the pending Australian Privacy Principles which will govern the use, collection and disclosure of personal information. It will be interesting to see whether the ‘right to privacy’ issue is debated when the new Privacy Bill is introduced into Parliament later this year.