Landmark decision about privacy and protesters

The Victorian Civil and Administrative Tribunal has handed down its decision in Lisa Caripis v Victoria Police, an important case about protesters and their rights to privacy.

The EDO acted for Lisa Caripis, a researcher and writer on climate change law, who had been filmed by Police attending a peaceful protest.  Lisa argued that the Police’s retention of the footage infringed her privacy under Victoria’s privacy law, and interfered with her human rights to privacy, freedom of expression and peaceful assembly.

In a landmark decision, the Tribunal decided that the law does not protect Lisa’s privacy and human rights in the way she had hoped.  While the case did not have a successful outcome for Lisa, the Tribunal’s decision shows what an important public interest case it was, and points to the ways in which Victoria’s privacy laws could be improved.

What was the case about?

In 2010, Lisa attended a protest at the Hazelwood Power Station to raise awareness about the possibilities for transitioning out of dirty energy sources like brown coal to cleaner renewable energies.  The protest was a peaceful, family-friendly day, and was attended by around 250 people – and about as many police.

Throughout the day the Police filmed protesters, including Lisa – an experience that was disconcerting for her.  After the protest, despite Lisa’s requests, the Police refused to destroy the footage of her.

Lisa, represented by the Environment Defenders Ofice, brought an action against Victoria Police in the Tribunal under the Information Privacy Act 2000, arguing that the Act required the Police to destroy the footage, given the peaceful nature of the protest, they no longer had any need for it.

Lisa gave evidence that the Police’s continued retention of the footage was unsettling and concerning. She argued that by retaining the footage of her, the Police were breaching her right to privacy and her rights to freedom of expression and peaceful assembly, protected by the Charter of Human Rights and Responsibilities Act 2006.  The Police gave evidence that even though the protest was peaceful, the footage was still needed for, among other things, intelligence purposes: “the climate in which [the Police] work is so affected by climate change that all information is potentially relevant”.

What was the Tribunal’s decison?

The Tribunal ultimately found that the Police’s retention of the footage did not breach Lisa’s privacy or her human rights.  The Tribunal accepted the Police’s evidence that the footage was needed for intelligence purposes, for the purposes of planning for future protests and to comply with the Public Records Act 1973, which required the Police to retain footage for a certain period of time.

Why is the decision important?

While Lisa was unsuccessful, the case was clearly an important one.

Firstly, the decision provided some much needed clarity on the meaning of the Information Privacy Act, and the Charter.  These Acts are relatively new, and have not been subject to much scrutiny by Courts or the Tribunal.  In particular, the Information Privacy Act’s rules about retaining personal information suggest that such information can be retained as long as it is ‘needed for any purpose’.  The Tribunal clarified that this does not mean ‘any purpose’ – instead, reference must be had to the purposes for which the personal information was collected, as well as related secondary purposes.

Secondly, the decision underlined that Victoria’s privacy laws have some way to go.  While the Tribunal suggested that actions that create a ‘chilling effect’ on public protest could amount to a breach of the rights to freedom of expression and peaceful assembly, it found that in this case there was no such chilling effect.  Nonetheless, Lisa’s evidence to the Tribunal in the case was clear – the Police’s retention of footage of her attending a peaceful protest made her feel like her privacy was being infringed, and that her rights to freedom of expression and peaceful assembly were being interfered with.  For many who believe in the importance of protest, this will be an understandable sentiment.  The case underlines that those in a similar position to Lisa are not protected by Victoria’s privacy and human rights laws, and that perhaps these laws need review.

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