It can involve unmasking anonymous individuals, sharing contact or location information, or revealing sensitive data that may be harmful to their reputation.

As it currently stands, the firm noted, victims of doxxing have limited legal options and are limited to support from the Cyberbullying Scheme or Adult Cyber Abuse Scheme.

Speaking recently to Lawyers Weekly, Holding Redlich partner Elizabeth Carroll (pictured) mused that existing law in this space was not designed to address the rapidly changing online world and its impacts on our society.

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“With doxxing typically carried out online, reforms are necessary to reflect changes in technology and to bring our privacy legislation into the digital age,” she explained.

“Currently, victims have limited legal options, such as seeking assistance from law enforcement authorities if there are risks of physical harm and where doxxing breaches criminal law.”

What is being floated?

In the Australian government’s Response to the Privacy Act Review, Carroll detailed, the government agreed in principle to the introduction of a statutory tort for serious invasions of privacy, consistent with recommendations by the Australian Law Reform Commission. Under this approach, she said, the invasion of privacy would need to be either a serious intrusion into the seclusion of an individual or a serious misuse of private information.

To establish the tort, an individual would need to prove that the privacy invasion was serious, they had a reasonable expectation of privacy, the invasion of privacy was committed intentionally or recklessly, and the public interest in privacy outweighs any countervailing public interest.

“The creation of the statutory tort would give victims of doxxing the capacity to take court action seeking damages for their loss,” Carroll advised.

The Australian government has further suggested implementing other proposals from the Privacy Act Review, which would assist in addressing doxxing, including granting individuals greater control over their personal information by introducing new or stronger rights to access, erase, correct and de-index their personal information.

“Similarly, proposed legislation will progress proposals [that] will bring the Privacy Act into the digital age, uplift existing protections and raise awareness regarding obligations for safe handling of personal information,” Carroll noted.

“Recent high-profile incidents of doxxing include a case of mistaken identity in which an Australian teenager was misidentified as the author of racist online comments with significant consequences for her and her family. The potential impacts of doxxing include identity theft, physical and cyber stalking, relocation costs, and damage to personal and professional reputation, leading to social and financial disadvantage.”

“The proposed changes would recognise the impact on victims, provide an avenue to seek compensation and seek to avoid or minimise harm to victims.”

Lawyers’ duties

When asked about the role of lawyers working in this space, Carroll said that, in the face of an ever-increasing pace of technological advancement and evolutions to the online world, lawyers have an essential role in guiding clients through the shifting privacy law landscape.

“The potential for a common law tort for invasion of privacy was raised by the High Court in Australian Broadcasting Corporation v Lenah Game Meats (2001) over 20 years ago, and a statutory tort for invasion of privacy has been recommended by a number of previous Australian inquiries,” she pointed out.

“Statutory torts have been introduced in other jurisdictions such as New Zealand, the UK, the USA and Canada. The current proposal draws heavily on the UK and NZ models, and best practice would look to experience in those jurisdictions as a guide when assessing the potential impacts of the proposed changes for clients.”

There are, Carroll continued, both challenges and opportunities for practitioners in the provision of advice at this critical juncture.

“The recent consultation on doxxing reform was undertaken in the absence of exposure draft legislation which presents challenges for lawyers in assessing their scope and operation. Privacy lawyers are looking forward to the opportunity to see the proposed legislation,” she noted.

“The Privacy Act Review presented 116 proposals for reform and the Australian government has committed to implementing 38 of the proposals. The government agreed in principle with a further 68 proposals and is conducting targeted consultation focusing on small business, privacy sector employees, journalism, and research to inform further reform.”

“Lawyers will be assisting clients across a myriad of sectors to understand the potential implications.”

Ultimately, Carroll reflected, the introduction of the statutory tort for serious invasion of privacy would “mark a significant development in privacy law reform”, with potential application beyond doxxing to a range of impacts upon privacy that is not currently being addressed through the criminal law or privacy legislation.