Whether or not they are immediately recognised as such,
issues pertaining to privacy are to the fore in today's
fast-changing, connected, digital world. It need not take a
United Kingdom phone-hacking scandal to remind us of this.
Late last month, a Green Paper on child abuse was launched in
New Zealand and, in the discussions surrounding it, the issue
of information sharing between government agencies,
constrained by privacy considerations, was raised.
How often do we hear about vexatious cases involving
estranged relationships in which one party has posted
intimate photographs of the other on internet sites? And is
there a more common complaint around the water cooler than of
the plethora of direct marketing phone calls intruding on
Such examples hint at a complexity and breadth of issues not
so manifest when the Privacy Act 1993 was signed into law. So
the comprehensive Law Commission review, led by the
distinguished Prof John Burrows QC, and just completed, is
timely. It has been in train for several years and has been
divided into four parts.
Stage 1 was an overview of privacy issues, resulting in the
paper, Privacy: Concepts and Issues (2008). Stage 2 took in
the law relating to public registers; Stage 3 looked at
whether criminal, civil and regulatory law in this country is
adequate to deal with invasions of privacy, and recommended
the establishment of a new Surveillance Devices Act; and
Stage 4 has led to the just-released report, Review of the
Privacy Act 1993. The Government will now consider the
review in its entirety and formulate its response.
Legislation will almost certainly follow.
At the heart of the review, and in any consideration of
privacy issues, is the question of balancing private and
The Law Commission believes the balance is essentially in the
right place, but "other interests" can sometimes override
privacy protection. It makes a number of recommendations to
These include a new framework in the Act for the sharing of
personal information between government agencies; new health
and safety exceptions and modifications; exceptions making it
clear information derived from suspicions about criminal
activity can be disclosed to law enforcement agencies; and,
against this liberalising trend, establishing new grounds for
refusing requests by people for information about themselves
which could lead to harassment of, or distress to, other
Broader recommendations of the review canvass data breach
notifications, whereby agencies must tell people when private
information has been compromised. It believes the Privacy Act
complaints process is unnecessarily complex and argues for
simplification. It seeks better protection for individuals
against offensive online publication, and raises the possible
establishment of a "Do Not Call" register to screen out those
who do not wish to be accosted by tele-marketers.
The media are, generally, excluded from the coverage of the
Privacy Act, being regulated by their own complaints bodies.
For print media, it is the Press Council; and for
broadcasters, the Broadcasting Standards Authority (BSA).
These exclusions recognise the role than media can and do
play in the transmission of information in the public
interest, and the requirements for openness in democratic
Media are constrained by laws - contempt, and defamation for
example - and by codes of professional ethics under which
they are accountable to the Press Council and the BSA.
But the review does identify "a potential gap in privacy
protection" with respect to internet-based media which are
frequently not subject to either a code of ethics or a
A large number of "blog-sites" would fall into this category
and the commission's view they should be subject to the
Privacy Act makes good sense. It will be some time before
these recommendations - those which survive the select
committee process - arrive on the statute books.
In the meantime, the thorough and reasoned nature of the
report is a timely reminder of the growing opportunities for
invasion of privacy, and also of the need to maintain
mechanisms to override blanket protections under the Act
where necessary. Privacy in an increasingly public world is a
precious commodity. The trick is to balance that with
requirements of the public good.