The New South Wales Council for Civil Liberties provides this submission with a view to highlighting the inadequacies of the multi-pronged approach to combatting doxxing, which contextualises the need for a statutory tort for invasions of privacy.

The NSWCCL’s core submissions are:

• Privacy is a fundamental human right that is central to the maintenance of democratic societies and achieving respect for human dignity. However, many Australians are concerned about gaps and ambiguities in the existing privacy regime that undermine the right to privacy. This is especially important in the context of unprecedented integration of digital technology in our everyday lives, which in turn has increased the risk of doxxing. Indeed, the growth of online platforms has also expanded the network of people able to harass, humiliate or attack someone once their identifying details have been revealed.
• Existing measures (including legal options) to safeguard individuals right to privacy against doxxing provide inadequate legal recourse and fail to deter others from engaging in doxxing.
• Consistent with the Commonwealth Government’s response to proposal 27.1 of the Privacy Act Review Report, the NSWCCL supports the introduction of the form of statutory tort of privacy proposed by the ALRC in Report 123[1] to address the harms caused by serious invasions of privacy, including the practice of doxxing.
• The NSWCCL considers the introduction of a statutory tort for serious invasions of privacy and concomitant court remedies would be sufficient in safeguarding against the risk of harm posed by doxxing. Principally, this statutory tort would require proof of a reasonable expectation of privacy; intent or recklessness on the part of the defendant; a serious invasion of privacy; a public interest test; and no proof of actual damage, although the NSWCCL proposes that monetary remedies be available for plaintiffs who suffer from emotional distress. We submit that this measure alone would be sufficient for addressing the multitudes of harm that doxxing can cause to a person’s life, both online and offline.
• To supplement a statutory tort for serious invasions of privacy, the NSWCCL submits that the adoption of further safeguards will ensure a holistic approach to protection against doxxing. Importantly, the right to erasure should be adopted to enable individuals to request the erasure of personal information in prescribed circumstances, thereby minimising the need to seek judicial intervention. This should be adopted in conjunction with the right to object to collection which would require entities to take reasonable steps to cease collecting, using or disclosing an individual’s information.

To this end, the NSWCCL sets out in our detailed submission, the substantive arguments in support of its abovementioned arguments. Read our submission here.

[1]     Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era (Report No 123, September 2014) (‘ALRC Report’)