Justice Kirby on why we must fight for privacy rights

Former High Court Justice Michael Kirby recalls the one privacy principle he helped develop at the OECD in the late 1970s that was made redundant when Google emerged in 1998. Speaking at the launch of the Australian Society for Computers & Law, the society’s high profile patron Justice Kirby laid out why Australia and the world needs to fight for citizens’ privacy rights and ensure governments of today and the future keep pace with advances in technology.

Unfortunately, according to Justice Kirby, Australia has failed to update its privacy laws to suit today’s technology and is sorely lagging behind today’s gold standard in the field — Europe’s General Data Protection Regulation, which came into force in May 2018.

It’s a shame, given Australia’s and Justice Kirby’s role in shaping privacy principles that would become law in multiple democratic nations.

In 1978 to 1980, as then chairman of the Australian Law Reform Commission, Justice Kirby was sent to Paris to chair an OECD expert group that was tasked with developing guidelines on privacy protection in the context of trans-border data flows. It was an early attempt at regulating computers before the Internet would go mainstream.

In 1980 — five years before Microsoft released Windows 1.0, nine years before Tim Berners-Lee invented the World Wide Web, and nearly two decades before Google — the Council of the OECD adopted the expert group’s privacy principles.

“Those guidelines have proved very influential, not only in Australia where they formed the foundation of the Australian Privacy Principles in the Privacy Act of 1988, but also in many other countries with different legal systems,” said Justice Kirby.

“The OECD privacy guidelines were extremely influential in the basic conceptual principles that would guide the international community at the outset of trying to devise … principles that would govern the regulation of computers and the protection of basic human rights, including the right to privacy.”

Despite the success of the OECD’s privacy guidelines, Justice Kirby said there was a “fundamental problem” with one of the core principles.

“That was a principle that governed the control by the individual or by society in the use that would be made of data that would be collected,” he said.

The expert group determined that data collected should only be used for the purposes for which they’d been collected, known to and approved by the data subject or as provided by law.

“The problem with that principle, which was fair enough at the time that it was adopted by the expert group, was that along came the search engines — Google, Yahoo and others — and those engines could use data and search data most efficiently for purposes other than that the data subject had consented to and knew about, or other than those that had been specifically provided by law,” he said.

“And therefore, one of the core principles of the OECD guidelines was not really appropriate to the technology as it developed.”

Technology from Google and other tech giants flummoxed the community of scholars and officials at the time. They also failed to devise new principles in response to emerging technology.

“Unfortunately, in the meetings that were held in the OECD…

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