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Australia: OVIC releases updated guidance on assessing compensation claims for loss in privacy complaints

The Office of the Victorian Information Commissioner ('OVIC') published, on 3 May 2022, updated guidance regarding assessing compensation claims for loss in privacy complaints. In particular, the OVIC confirmed that the updated guidance assists parties in privacy complaints where an interference with privacy has been established and the individual seeks compensation to resolve the complaint. Furthermore, the guidance highlights that the two main categories of harm that have resulted in awards of compensation following privacy complaints are:

  • economic loss; and
  • non-economic loss.

As such, the guidance notes that the Victorian Civil and Administrative Tribunal ('VCAT') may award compensation where a privacy breach has caused a complainant to suffer economic loss, which involves a complainant suffering loss of a financial nature caused by a breach. Moreover, the guidance specifies that awards for economic loss seek to restore an individual to 'the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'.

Further to the above, the guidance confirms that non-economic loss, sometimes described as emotional harm, is the most commonly claimed type of harm in privacy complaints but can be the most difficult to grapple with given its nature. In this regard, the guidance clarifies that non-economic loss should be assessed by looking at the particular complainant's reaction and not to the perceived reaction of the majority of the community, or of a reasonable person in similar circumstances. Similarly, the guidance adds that it is the effect of the conduct which should be examined, rather than the conduct itself.

Moreover, the guidance states that all cases will turn on their specific circumstances and it is impossible to establish an absolute metric for determining amounts of compensation. Resultantly, the guidance elaborates that not all privacy breaches will warrant compensation, as it is expected that that a complainant first demonstrate that they have suffered harm as a result of the breach. As such, the guidance notes that this reflects that compensation is aimed at redressing harm, rather than punishing an organisation. However, the guidance adds that the VCAT has noted that where harm has been established, 'the legislation contemplates some form of redress in the ordinary course'.

You can access the guidance here.