Privacy and reputation

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2017 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the prohibition on interference with privacy and attacks on reputation?

The prohibition on interference with privacy and attacks on reputation prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. It also prohibits unlawful attacks on a person's reputation. It provides that persons have the right to the protection of the law against such interference or attacks.

Where does the prohibition on interference with privacy and attacks on reputation come from?

Australia is a party to seven core international human rights treaties. The prohibition on interference with privacy and attacks on reputation is contained in article 17 of the International Covenant on Civil and Political Rights (ICCPR).

See also article 16 of the Convention on the Rights of the Child (CRC) and article 22 of the Convention on the Rights of Persons with Disabilities (CRPD).

When do I need to consider the prohibition on interference with privacy and attacks on reputation?

The prohibition on interference with privacy and attacks on reputation has an impact on a wide range of government legislation, policies and programs, such as those that:

  • involve the collection, storage, security, use, disclosure or publication of personal information
  • regulate information held on a public register
  • restrict access by individuals to their own personal information
  • create or change confidentiality or secrecy provisions relating to personal information
  • create an identification system, such as a national identity card
  • provide for sharing of personal information across or within agencies
  • relate to the use of personal information for statistical purposes
  • authorise powers of entry to premises or search of persons or premises
  • authorise surveillance (for instance by closed-circuit television)
  • provide for compulsory physical intervention on a person (for instance to collect fingerprints, a DNA sample or biometric information)
  • provide for mandatory disclosure or reporting of information (for instance by a doctor in relation to a patient)
  • regulate matters pertaining to the family, such as the recognition of close or enduring personal relationships, the removal of children from a family by a public authority, adoption or guardianship
  • authorise the compulsory occupation or acquisition of a home or regulate planning or environmental matters that may affect a person's home
  • authorise the interception of communications, including written, verbal, electronic or telephonic
  • affect the law relating to defamation, or
  • affect the exemptions relating to disclosure of personal information under freedom of information legislation.

This list should not be regarded as exhaustive.

Under the Privacy Act 1988, personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable

  1. whether the information or opinion is true or not; and
  2. whether the information or opinion is recorded in a material form or not.

Laws that affect privacy should be precise, and not give decision-makers too much discretion in authorising interferences with privacy. They should provide proper safeguards against arbitrary interference. To avoid being considered arbitrary, any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances.

What is the scope of the prohibition on interference with privacy and attacks on reputation?

Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. It also prohibits unlawful attacks on a person's reputation. It provides that persons have the right to the protection of the law against such interference or attacks.

The UN Human Rights Committee has not defined 'privacy'. It should be understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. In a case involving Australia, the Committee stated that laws that criminalised homosexual conduct between consenting adults in private violated the right to privacy.

Attacks are prohibited when they are unlawful. However, interferences authorised under domestic law may still be found to be arbitrary under international law. For further discussion on these terms, see the below discussion regarding the limitations on the prohibitions.

The Committee has stated that the term family should be given a broad interpretation to encompass the varied conceptions of the family as understood in different societies (see also the Guidance Sheet on Right to respect for the family). In relation to Indigenous Australians, it is important that family be understood to include kinship structures, which encompass an extended family system often including distant relatives.

The Committee has given a liberal interpretation to the term home, which includes a person's workplace. The Committee states that searches of a person's home should be restricted to those necessary to gather evidence and should not amount to harassment. Searches of a person should be carried out in manner consistent with the dignity of the person.

Interceptions of communications are not prohibited if they are authorised by law and not arbitrary. They are less likely to be regarded as arbitrary if they are subject to oversight by independent, preferably judicial, bodies.

The Committee has stated that countries have an obligation to adopt legislative and other measures to give effect to the prohibitions in article 17, including the prohibition on attacks on reputation. Laws should provide effective remedies.

Can the prohibition on interference with privacy and attacks on reputation be limited?

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from their obligations under the Covenant, including the prohibitionon interference with privacy and attacks on reputation 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.'

Limitations

Article 17 of the ICCPR does not set out the reasons for which the guarantees in it may be limited. However, limitations contained in other articles, for example, those which are necessary in a democratic society in the interests of national security, public order, the protection of public health or the protection of the rights and freedoms of others might be legitimate objectives in appropriate circumstances in respect of the prohibition on interference with privacy and attacks on reputation. In any event, limitations on privacy must be authorised by law and must not be arbitrary. The term unlawful means that no interference can take place except as authorised under domestic law. The law should be precise, and not give decision-makers too much discretion in authorising interferences with privacy.

The use of the term arbitrary in the ICCPR means that any interferences with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. An interference that is authorised under domestic law may still be arbitrary, and consequently prohibited under article 17. For example, the UN Human Rights Committee has stated that a law that precluded persons from changing their names to accord with their religion was not reasonable and accordingly constituted an arbitrary interference with privacy. In another case, the Committee found that a law that enabled the censoring of the mail of prisoners was reasonable on the basis that it was restricted to mail that posed a threat to the staff or the operation of the prison.

Which domestic laws relate to the prohibition on interference with privacy and attacks on reputation?

The Privacy Act 1988 (Privacy Act) provides for the protection of personal information collected and held by Australian Government agencies and certain private sector organisations. The Privacy Act sets out Australian Privacy Principles (APPs) which deal with all stages of the information lifecycle setting out standards for the collection, storage, security, use, disclosure and quality of personal information. They also create obligations on agencies and organisations regarding access to, and correction of, an individual's own personal information.

The Australian Information Commissioner, through the Office of the Australian Information Commissioner (OAIC), is responsible for monitoring and enforcing compliance with the Privacy Act and can investigate complaints.

Other Commonwealth legislation may also affect privacy, for instance in the fields of telecommunications, medical and pharmaceutical benefits, government data-matching, criminal records, anti-money laundering and healthcare identifiers. There are also secrecy and confidentiality provisions that protect various types of personal information held by Commonwealth agencies.

The Australian Information Commissioner is also the independent regulator of freedom of information. The Commissioner conducts reviews, investigates FOI complaints and promotes the objects of the Freedom of Information Act 1982 (FOI Act) by issuing guidance for agencies and members of the public. The FOI Act provides for access to information held by the government and sets out a legally enforceable mechanism for ensuring this access. The right to access is subject to certain limitations that ensure that sensitive information, including information unreasonably affecting personal privacy is properly protected. Protections also apply to other classes of documents, including those affecting national security, defence or international relations.

The FOI Act includes a web-based Information Publication Scheme that provides a framework for agencies to proactively disclose more information to the public.

Section 121 of the Family Law Act 1975 provides for an offence of publication of details of family law matters that identify the parties to a proceeding, balancing the need for openness of court proceedings with the need for privacy in family law matters.

What other rights and freedoms relate to the prohibition on interference with privacy and attacks on reputation?

Circumstances which give rise to the consideration of the prohibition on interference with privacy and attacks on reputation may also be relevant to:

  • the protection of families and children in articles 23 and 24 (ICCPR)
  • the right to freedom of opinion and expression in article 19 (ICCPR)
  • the right to a fair hearing and certain rights in criminal proceedings under article 14 (ICCPR).

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 17

  • No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
  • Everyone has the right to the protection of the law against such interference or attacks.

See also: CRC article 16; CRPD article 22.

Where can I read more about the prohibition on interference with privacy and attacks on reputation?