I enjoy reading Peta Mathias’ weekly advice column. Her advice is practical, pragmatic and witty on subjects ranging from moving on after a relationship to getting cling wrap to adhere to pottery.
This week though, Peta’s advice to consult the Privacy Commissioner over the distinctly dodgy behaviour of an ex-girlfriend is unlikely to provide the solution the correspondent needs. In case you can’t see the picture of Peta’s column, the story is that Greg split up from his girlfriend and went to her house to pick up his stuff. Included in his belongings were diaries detailing intimate details of his life, including his sex life over 30 years. The ex-girfriend had read them and photocopied extracts and threatens to disclose them more widely.
The problem Greg faces is that the Privacy Act will not apply to the diaries in this case. The Privacy Act applies to “agencies”. Agencies have to comply with the information privacy principles and a breach of the principles that results in an interference with privacy could lead to a complaint to the Privacy Commissioner. An “agency” can be a government department, a company, or an individual. Where an agency is an individual, there is an exemption from the information privacy principles where the personal information is collected or held for in connection with their domestic or personal affairs. Greg’s ex-girlfriend is an agency, but she holds the information only because of her personal relationship with Greg, not as his employer, or dentist, or landlord, therefore the privacy principles don’t apply.
All may not be lost however. In response to concerns about cyberbullying the Government asked the Law Commission to give advice on the adequacy of the law. Its report lead to the Harmful Digital Communications Bill , which is working its way through Parliament.
When passed it will alter s.56 of the Privacy Act to say that the exemption mentioned above will not apply "if that collection, disclosure, or use would be highly offensive to an ordinary reasonable person”. So depending on which excerpts of his diaries Greg’s ex decides to disclose or post online, he might be able to get those taken down, or make a complaint to me once that amendment is passed.
Peta is right that Greg should seek legal advice though. Even though the Privacy Act might not be much help just now, he might be able to make a claim based on breach of confidence, or have some other legal remedy.