Recent publications by law reform bodies worldwide

AuthorEilionóir Flynn - Joe Mcgrath
PositionB.C.L., (NUI), PhD Candidate (NUI), Government of Ireland Scholar, (IRCHSS) - B.C.L., (NUI), PhD Candidate (NUI), Government of Ireland Scholar, (IRCHSS)
2008] Law Reform Update 193
A. Australia
For Your Information: Australian Privacy Law and Practice
Final Report (ALRC 108)
August 2008
This Report builds upon the contribution of a previous
ALRC publication, the Report on Privacy (ALRC 22), which was
published in 1983. It is a substantial project, comprising three
separate volumes, and aims to deal with the privacy issues arising
from the use of new technologies in the modern Information Age.
In addition, the Commission wished to align Australia’s privacy
policy with those of its global trading partners, and to propose a
common approach at federal level, addressing issues which had
not previously been dealt with in the Privacy Act 1988.
This federal approach could subsequently be adopted throughout
all the states and territories in Australia.
In this Report, the Commission recommends that the
Privacy Act be redrafted for the purposes of clarification, to
contain one comprehensive set of privacy principles, which can
be applied to information in both public and private sectors.
This model of Unified Privacy Principles put forward by the
Commission aims to cover anonymity and pseudonymity,
collection, notification, openness, use and disclosure, direct
marketing, data quality, data security, access and correction,
B.C.L., (NUI), PhD Candidate (NUI), Government of Ireland Scholar,
B.C.L., (NUI), PhD Candidate (NUI), Government of Ireland Scholar,
Judicial Studies Institute Journal [2008:2
identifiers, and cross-border data flows. More specific rules and
regulatory mechanisms can be added to these principles,
to achieve the necessary policy outcomes in different situations.
A three-tiered approach to privacy is also proposed to
implement these principles. This involves high-level principles of
general application, set out in the redrafted Privacy Act,
regulations and industry codes, detailing the handling of personal
information in certain specified contexts, and guidance issued by
the Privacy Commissioner (and other relevant regulators) in
dealing with operational matters and explaining to end users what
is expected in various circumstances, as well as providing basic
advice and education. The Report also contains more detailed
recommendations on updating the definitions contained in the
Privacy Act and reducing the number of exemptions to this
legislation, improved complaint handling, stronger penalties, data
breach notification, decision-making by children and young
people, nominee arrangements, health information and greater
facilitation of research.
B. British Columbia
Report on the Privacy Act of British Columbia
BCLI Report No. 49
February 2008
This Report is concerned with the right to privacy in British
Columbia. It acknowledges that privacy is a broad subject that has
become an increasingly prominent concern in society.
A substantial body of federal and provincial legislation now
governs the collection, use and distribution of personal
information by public and private bodies. This Report, however,
is concerned specifically with the Privacy Act 1996. The Report
notes that the Privacy Act was a progressive piece of legislation at
the time of its enactment, but that it has failed to keep pace with
modern developments. It builds on responses received by
interested persons and groups to a previous Consultation Paper on
2008] Law Reform Update 195
the same matter, and proposes seven technical amendments to the
relevant legislation.
The Institute recommends the retention of the right to sue
for a violation of privacy. It further recommends that liability for
violation of privacy should be on the basis of intention and
recklessness, rather than “wilfully and without a claim of right”.
The right would not be breached where the actor honestly
believed in a state of facts under which, if they had been true, the
act or conduct would be legally justified. The Institute also
provides for a number of specific contexts, such as those
involving the use of audio-visual surveillance technology, that are
violations of privacy unless the person who has authority to give
implied or express consent has done so. Furthermore, the Institute
states that persons may have a reasonable degree of privacy with
respect to lawful activities that occur in a public setting but which
are not directed at attaching publicity or the attention of others.
The power to grant remedies other than damages is also expressly
provided for in the recommendations. The Privacy Act would also
be amended to specify that any rights and remedies that it
provides are in addition to any other rights or remedies available
to plaintiffs, and do not replace them. Any damages awarded
from the violation of privacy need not be disregarded in the
assessment of damages in other proceedings for the same
violation of privacy. Finally, the Institute recommends that rights
of action for certain violations of privacy are only conferred on
individuals, not corporations, and that the Act also contain the
statutory tort of stalking, similar to harassment under the Criminal
Code of British Columbia.
Report on Proposals for a New Society Act
BCLI Report No. 51
August 2008
In July 2006, the British Columbia Law Institute
commenced a two-year project to consider reforming the law
relating to “Societies”, i.e. incorporated not-for-profit bodies.
The first phase of the project involved the publication of a

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