As a society we are reliant on the records and stories captured by artists to understand and connect to our past and present. Think of a poignant image taken by a photographer which sums up a moment in our history so perfectly. Without these records our ability to tell our nation’s stories could be irreparably eroded.
To ensure the rights of artists are not overlooked in the current Australian Law Reform Commission (ALRC) privacy inquiry, Arts Law recently made a submission to the ALRC in response to Issues Paper 43, Serious Invasions of Privacy in the Digital Era.
The ALRC’s inquiry into the protection of privacy in the digital era is looking at both the prevention of, and remedies for, serious invasions of privacy. This inquiry comes after the ALRC broadly considered the right to protect and sue for breach of privacy in 2008 and the Department of Prime Minister and Cabinet undertook public consultation in 2011. In the current inquiry, the ALRC has been asked to make recommendations to the Federal Government regarding:
- Innovative ways in which the law may reduce serious invasions of privacy;
- The necessity of balancing the value of privacy with other fundamental rights of expression and open justice; and
- A detailed legal design for a statutory cause of action for a serious invasion of privacy.
To begin its consultation process, the ALRC released an Issues Paper on 8 October 2013 seeking input from the general community to help inform the development of draft recommendations. Submissions closed 11 November 2013.
ARTS LAW’S POSITION
Arts Law does not agree that a cause of action for serious invasions of privacy in Australia is necessary. We did say, however, that if one is introduced, it is very important that the sorts of activities which artists engage in, such as photography, journalism, documentary filmmaking, are excluded so that artists can continue to take photographs in public, for example. Arts Law is very concerned that a right to take legal action for an invasion of privacy could limit freedom of expression and thus inhibit the creative expression of the artistic community. We are also concerned that a new right to privacy could have a very serious chilling effect on creativity as, in our experience, artists generally avoid undertaking any activity that may come within the scope of such laws.
The draft recommendations for reform are to be released by the ALRC in a Discussion Paper due at the end of February 2014. The final report is due to be delivered to the Attorney-General by 30 June 2014.
Anika Valenti is a Solicitor at the Arts Law Centre of Australia.