2014 Volume 19 Issue 3
Articles
Privacy in fact and fiction: Histories of English and Australian intelligence archives
Jake Goldenfein
Abstract
In light of recent exposures as to the scope of intelligence surveillance occurring world wide, privacy’s ability to protect individuals has been increasingly called into question. While privacy law has had some success in limiting the scope of ordinary ‘administrative’ law enforcement surveillance, it has been less effective at restraining intelligence surveillance. Privacy jurisprudence around intelligence often acquiesces to state secrecy and the needs of national security, leaving a wide ‘margin of discretion’ for states. This article looks at the history of Anglo and Australian intelligence surveillance, with particular focus on the origins of the surveillance archive and practices of dossier keeping. That analysis suggests privacy may be a more appropriate concept for establishing the limits of certain liberal policing practices than increasingly illiberal intelligence surveillance. Consequently, it is argued access and correction rights over the intelligence archive may be more important than restraining the scope of surveillance at first instance. This is because the proper limits to intelligence surveillance are better established by reducing the sphere of state secrecy than enhancing the individual’s private sphere.
In light of recent exposures as to the scope of intelligence surveillance occurring world wide, privacy’s ability to protect individuals has been increasingly called into question. While privacy law has had some success in limiting the scope of ordinary ‘administrative’ law enforcement surveillance, it has been less effective at restraining intelligence surveillance. Privacy jurisprudence around intelligence often acquiesces to state secrecy and the needs of national security, leaving a wide ‘margin of discretion’ for states. This article looks at the history of Anglo and Australian intelligence surveillance, with particular focus on the origins of the surveillance archive and practices of dossier keeping. That analysis suggests privacy may be a more appropriate concept for establishing the limits of certain liberal policing practices than increasingly illiberal intelligence surveillance. Consequently, it is argued access and correction rights over the intelligence archive may be more important than restraining the scope of surveillance at first instance. This is because the proper limits to intelligence surveillance are better established by reducing the sphere of state secrecy than enhancing the individual’s private sphere.
Injunctions and the right to privacy in the United Kingdom
Emma Gran
Abstract
This article seeks to dissect ‘privacy’ in a theoretical and legal context. It addresses the conceptualisation of the private realm, and why it is deemed valuable or necessary in terms of what it seeks to protect. In this context, the article focuses on the proliferation in the United Kingdom of the use of injunctions (particularly super- and anonymised injunctions) as remedies in that jurisdiction to address breaches of privacy. The Max Mosley case will be examined as a way of contemplating whether the private realm is in fact under threat. Finally, some of the efforts made in the United Kingdom to address these threats will be canvassed. The article argues that super- and anonymised injunctions actually increase speculation and interest in the matters they are relevant to, and reflect fundamental changes to UK law that, in turn, demonstrate distinctly European notions of rights and privacy (embodied in the Human Rights Act 1988 (UK)). It also canvases other possible avenues of law reform, such as the implementation of statutory regimes. The article concludes that invoking or introducing a ‘right’ to privacy is not appropriate for the legal frameworks and traditions of the United Kingdom.
This article seeks to dissect ‘privacy’ in a theoretical and legal context. It addresses the conceptualisation of the private realm, and why it is deemed valuable or necessary in terms of what it seeks to protect. In this context, the article focuses on the proliferation in the United Kingdom of the use of injunctions (particularly super- and anonymised injunctions) as remedies in that jurisdiction to address breaches of privacy. The Max Mosley case will be examined as a way of contemplating whether the private realm is in fact under threat. Finally, some of the efforts made in the United Kingdom to address these threats will be canvassed. The article argues that super- and anonymised injunctions actually increase speculation and interest in the matters they are relevant to, and reflect fundamental changes to UK law that, in turn, demonstrate distinctly European notions of rights and privacy (embodied in the Human Rights Act 1988 (UK)). It also canvases other possible avenues of law reform, such as the implementation of statutory regimes. The article concludes that invoking or introducing a ‘right’ to privacy is not appropriate for the legal frameworks and traditions of the United Kingdom.
Abstract
Up until 2013, few people, if any, had paid any attention to s 313 of the Telecommunications Act 1997 (Cth) which authorises carriage services to block internet addresses upon request from law enforcement. Of course, there was a good reason for this — the use of the section only came to notice in the aftermath of the failure to legislate for a mandatory internet filtering scheme, when existing sources of power for filtering were sought. This article explores a brief history of the mandatory internet filter plan, examines the current semi-voluntary scheme, and looks at ways that s 313 of the Telecommunications Act 1997 (Cth) is being used to justify blocking access to addresses on the internet.
Up until 2013, few people, if any, had paid any attention to s 313 of the Telecommunications Act 1997 (Cth) which authorises carriage services to block internet addresses upon request from law enforcement. Of course, there was a good reason for this — the use of the section only came to notice in the aftermath of the failure to legislate for a mandatory internet filtering scheme, when existing sources of power for filtering were sought. This article explores a brief history of the mandatory internet filter plan, examines the current semi-voluntary scheme, and looks at ways that s 313 of the Telecommunications Act 1997 (Cth) is being used to justify blocking access to addresses on the internet.
Abstract
This article examines the Chinese court’s application of two defences (qualified privilege and public opinion supervision) to a claim for injury to reputation in the context of publication in the written media, and considers the implications of different applications for freedom of expression in China. For the media to effectively utilise the qualified privilege defence, China’s Supreme People’s Court needs to clarify that the publication of a follow-up or correction report by the media should be triggered by the alleged victim’s notification. The lack of legal rigour effectively deems the defense of public opinion supervision meaningless, as no special protection to the right has been consistently granted. The issue for Chinese law and the judiciary administering that law is to establish a clear, specific and coherent legal framework governing the protection of the right to reputation and the right to freedom of expression, which will operate to guide the courts and limit their discretion.
This article examines the Chinese court’s application of two defences (qualified privilege and public opinion supervision) to a claim for injury to reputation in the context of publication in the written media, and considers the implications of different applications for freedom of expression in China. For the media to effectively utilise the qualified privilege defence, China’s Supreme People’s Court needs to clarify that the publication of a follow-up or correction report by the media should be triggered by the alleged victim’s notification. The lack of legal rigour effectively deems the defense of public opinion supervision meaningless, as no special protection to the right has been consistently granted. The issue for Chinese law and the judiciary administering that law is to establish a clear, specific and coherent legal framework governing the protection of the right to reputation and the right to freedom of expression, which will operate to guide the courts and limit their discretion.
Case Note
The high price of defamation by social media in Mickle v Farley
Michael Douglas