Recent publications by law reform bodies worldwide

• Author: Eilionóir Flynn - Joe Mcgrath
• Position: B.C.L., (NUI), PhD Candidate (NUI), Government of Ireland Scholar, (IRCHSS) - B.C.L., (NUI), PhD Candidate (NUI), Government of Ireland Scholar, (IRCHSS)
• Pages: 193-225

2008] Law Reform Update 193

RECENT PUBLICATIONS BY

LAW REFORM BODIES WORLDWIDE

COMPILED BY

EILIONÓIR FLYNN & JOE MCGRATH†

A. Australia

For Your Information: Australian Privacy Law and Practice

Final Report (ALRC 108)

August 2008

http://www.austlii.edu.au/au/other/alrc/publications/reports/107/1.

pdf

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,

(IRCHSS).

† B.C.L., (NUI), PhD Candidate (NUI), Government of Ireland Scholar,

(IRCHSS).

Judicial Studies Institute Journal [2008:2

194

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

http://www.bcli.org/sites/default/files/Privacy_Act_Report_Webs

ite.pdf

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

http://www.bcli.org/sites/default/files/BCLI_Report_on_Proposal

s_for_a_New_Society_Act.pdf

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