ALRC Discussion Paper 72 - Review of Australian Privacy Law

December 2007

The Australian Library and Information Association (ALIA)

ALIA represents Australia's library and information staff and their industry. It has strong commitments to both privacy, and to the free flow of information.

ALIA has a clear policy relating to privacy which governs its own activities as an organisation – http://www.alia.org.au/alianet/privacy.html - and also provides guidelines to Australian libraries developing their own policies; see http://www.alia.org.au/policies/privacy.guidlines.html.

These guidelines are based on the principle that libraries and information services shall protect each user's right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted. [Taken from The Glasgow Declaration on Libraries, Information Services and Intellectual Freedom, Proclaimed by the Council of IFLA 19 August 2002, Glasgow, Scotland.]

On the other hand, it is a major principle for ALIA that Australians have the right to access the information they need. Libraries exist to provide access to other peoples' information. ALIA strongly opposes any measure which will restrict access to information, unless that restriction is clearly justified in terms of other rights. ALIA acknowledges that courses of action which involve these two principles need to be undertaken carefully.

ALIA core values, set out at http://www.alia.org.au/policies/core.values.html, include as the first value, "Promotion of the free flow of information and ideas through open access to recorded knowledge, information, and creative works."

ALIA's policy on free access to information is set out at http://www.alia.org.au/policies/free.access.html and includes these statements:

The Australian Library and Information Association believes that library and information services have particular responsibilities in supporting and sustaining the free flow of information and ideas including:

1. Asserting the equal and equitable rights of citizens to information regardless of age, race, gender, religion, disability, cultural identity, language, socioeconomic status, lifestyle choice, political allegiance or social viewpoint;
2. Adopting an inclusive approach in developing and implementing policies regarding access to information and ideas that are relevant to the library and information service concerned, irrespective of the controversial nature of the information or ideas;
3. Ensuring that their clients have access to information from a variety of sources and agencies to meet their needs and that a citizen's information needs are met independently of location and an ability to pay;
4. Catering for interest in contemporary issues without promoting or suppressing particular beliefs and ideas;
5. Protecting the confidential relationships that exist between the library and information service and its clients;
6. Resisting attempts by individuals or groups within their communities to restrict access to information and ideas while at the same time recognising that powers of censorship are legally vested in state and federal governments;
7. Observing laws and regulations governing access to information and ideas but working towards the amendment of those laws and regulations which inhibit library and information services in meeting the obligations and responsibilities outlined in this Statement.

Comments on the Review

ALIA urges caution in imposing new limitations on the use of photographs. Australian library collections include millions of photographs, many of them now available online. Photographs are a major documentary source, and the primary mode of access to them is now to digital or digitised online images. Digitisation of these photographs provides the opportunity for Australians to access them to support their research, study and community activities. The benefit to the community through digitisation is significant, supporting access to our documentary heritage.

ALIA also urges caution in imposing any new levels of protection or regulation in relation to deceased people.

The ALRC proposes to retain an exemption from some privacy provisions for the media, but to be clearer when it applies. "The ALRC accepts that there needs to be a balance between privacy protection and the free flow of information to the public through the media." ALIA suggests that the concept of "the media" is changing quite rapidly as the kind of reach once only available to the print and broadcast media is now available to a much wider range of people. It might be argued that the free flow of information is not a media privilege but something wider. There is a proposal is to narrow the definition of journalism so that it only applies to "news, current affairs or documentary material or commentary, opinion or analysis of news, current affairs or a documentary" and ALIA suggests that protection may need to be widened rather than narrowing. Certainly, libraries of record which once collected print journalism now also archive blogs and a very wide range of "media."

ALIA endorses the submission of the Australian Digital Alliance, as noted below.

The ALRC proposes that a general right to privacy be recognised and that an individual should have the right to take action in court where "there has been interference with an individual's home or family life" or "an individual has been subject to unauthorised surveillance", for example.

ALIA is sceptical of such a right, and believes that it needs further justification in detail. We believe that there is a likelihood that it would be used to block access to information for which there was a legitimate right of access, through vexatious litigation or use of the law as a deterrent. The introduction of such a law would change the current balance by placing new restrictions on the right of access to information.

ALIA supports the submission made by the Australian Digital Alliance, which deals with issues of privacy as they relate to digital rights management and information held by internet service providers. In particular, issues such as the scope of personal information, bundled consent and related information collection, and the small business exception.

Thank you for the opportunity to comment on these issues, and best wishes for further deliberations.