E-mail privacy: can I send a copy without permission?

This is not an extensive review of the field, nor is it legal advice.

I wanted to inform myself of the limits of what I could do with an email that had come into my possession. One of the parties, known from the content to be very aggressive and sometimes threatening, I wasn't prepared to approach for permission, whilst the other, when I did, was happy to publish the interchange on-line.

These are my notes.

There is no "Right to Privacy" in Australia, but that doesn't mean there are no rights and what are available aren't clear cut. There is a long-running Australian Law Reform Commission (ALRC) into this.

The 'interception' of a real-time or stored electronic communication is a serious crime, but that's not what we're dealing with, nor is it hacking.

Nor does an interpersonal communication come under the Privacy Act or the SPAM Act.

There could be 3 causes of Action for an unauthorised disclosure of an electronic communication.

• Defamation, [state laws harmonised in 2006]
• Copyright, and
• "Breach of Confidence" [a wide catch-all].

I think the key consideration is "did he have an expectation of confidentiality".

I think not: if he'd meant for it to be absolutely private/confidential, he'd have tagged it so.

On Copyright, I do not need permission from him to summarise/paraphrase (because the form of words, not the ideas are copyright) and Oz copyright law has "fair dealing provisions". Short quotes for the purpose of criticism and comment are allowed.

BREACH OF CONFIDENCE
I came across a great little quote, something like "in todays' world, we don't have an expectation of on-line privacy", but failed to snip it and lost it.
But there are very well known, long-standing comments from large Internet companies in the USA of the form:

"There is no privacy on-line, get over it."

We don't have here a media outlet releasing private images (think Lara Bingle in the shower),
nor are we disclosing "personal information". This is "can I publish a personal email".

This old discussion says something useful:

http://www.cyberlawcentre.org/genl2032/07_privacy.htm

An action for breach of confidence can be used to protect personal information if the required elements of the action are present.
 The information imparted must be confidential and imparted in circumstances imposing an obligation of confidence.

if there was an expectation of Privacy/non-disclosure, it's unequivocal - you're not allowed to copy without explicit permission.

http://www.cyberlawcentre.org/ipp/publications/papers/ALRC_DP72_UPPs_final.pdf

Obligations of confidence – role in limiting use and disclosure
The law of breach of confidence can play a role in determining the purpose of collection and subsequent use and disclosure options (assuming circumstances of confidence apply and the information is confidential). The relationships to which confidentiality attaches is (surprisingly) still uncertain for many modern commercial and professional relationships beyond the well known relationships such as banker/customer and doctor/patient.

That this is still need for clear laws is this White Paper reacting to the ALRC recommendations is clearly stated:
http://www.dpmc.gov.au/privacy/causeofaction/docs/issues%20paper_cth_stat_cause_action_serious_invasion_privacy.pdf

There is currently no statutory action for invasion of privacy in any Australian jurisdiction, and there is scant common law, with no appellate court recognising a tort of invasion of privacy.

Another excellent review is at:
http://fortnightlyreview.info/2011/12/12/keeping-secrets-in-times-of-weak-law-2/

The first commentator, David Brennan, engaged in a fuller discussion of remedies for breach of confidence.
He highlighted the remedial uncertainties arising from the equitable jurisdiction of breach of confidence — remedies were at the court’s discretion, and equity provided weak guidance on the assessment of quantum.

and

The first speaker, Professor Megan Richardson framed the panel discussion around the future direction of privacy law in Australia – does Australia need a statutory cause of action for invasion of privacy, or should the common law protecting privacy interests (breach of confidence, defamation) be left to develop on its own? 

 She noted the ‘careful silence’ of the federal government on the issue, only recently broken by the publication in September 2011 of an issues paper recommending the introduction of a statutory cause of action – a reaction, perhaps, to the resurgence of interest in the ever-expanding News of the World phone-hacking scandal.

Another useful discussion of privacy and the media is here:
http://theconversation.edu.au/breaching-confidence-do-we-need-a-privacy-tort-2477


COPYRIGHT

The copyright council has 3 FAQ answers containing 'email'

About libraries and archival copies of email containing copyright material. [not applicable]

http://www.copyright.org.au/find-an-answer/faq-details/id/425/

Can I forward part of the text I've seen on an interesting site to other people?
http://www.copyright.org.au/find-an-answer/faq-details/id/464/
[Unless explicitly permitted on the website, seek permission.]

Can I forward an email I have received to someone else? [applies]
http://www.copyright.org.au/find-an-answer/faq-details/id/465/

15.6.2008
Copyright issues arise when an email is forwarded because a reproduction will be made on the computer used by the recipient and a copy may also be stored as a sent item in your email account. 

 Where emails are sent in a business or educational context (or any context other than between family and friends), the sending will also constitute a “communication to the public”. 

In many situations, however, there will be an implied permission from the copyright owner to forward an email.
For example, in the context of an organisation, business or government department, it would generally be relatively easy to argue that there was an implied permission to forward an email received by the organisation to relevant people in the organisation (such as administrative staff and the people who might be expected to deal with the issues raised in the email).

And my conclusion:

Copyright permission is separate from Disclosure/Confidentiality permission,
but 'fair-use' provisions do apply.

DEFAMATION

Defamation [with 2006 law included]
http://www.qpilch.org.au/resources/factsheets/Defamation.htm

"Defamation Laws & the Internet" [pre 2006]
http://www.efa.org.au/Issues/Censor/defamation.html

Truth is now a defence. 1 year time limit applies (3yr 'special case')

Useful Resource.
The UNSW Cyberspace Law Centre:
http://www.cyberlawcentre.org/