Educators beware: six year old applicant brings privacy complaint against preschool and obtains suppression orders.

Key points
Regarding privacy complaints brought by a child applicant:
  • Orders seeking the suppression of personal information about the child may find favour on the basis that a refusal to grant such an order would nullify the purpose of the case, being the protection of the child; and  
  • The right to open justice may be outweighed in favour of protecting the best interests of the child.

In the case of BJP19 (as Litigation Guardian for BJQ19) v Office of the Australian Information Commissioner [2019] FCA 618, an interim suppression order was made. A 6 year old girl, referred to as BJQ19, (Applicant) made a complaint alleging that the private school she attended interfered with her privacy by:

a)    inappropriately collecting and retaining videos and photos of her and her schoolwork;

b)    publishing or displaying images of her publicly; and

c)    not providing access to all personal information the school held about her,

The Applicant’s litigation representative sought a suppression order under section 37AG(1) of the Federal Court of Australia Act 1976 (Cth) (Act). The order was sought on the ground that suppression was necessary to prevent prejudice to the proper administration of justice. In support of that request, the Applicant contended that she would feel very embarrassed and worried if information, photos and images about how she learned and played as a little child became available to the public, were commented on or even laughed at. She also feared that disclosing her identity would adversely affect her prospects of getting enrolled into private schools in the future, as it is common practice for private school enrolment to be at the sole discretion of the principal.

Under the scope of the suppression order the Applicant sought  to conceal:

a)    her identity and the identity of her immediate family;

b)    her original work;

c)    any matter that identified the Applicant or was likely to lead to her identification.

The Court held that section 37AG requires a high threshold and that mere embarrassment or inconvenience on the part of the Applicant would not suffice. However, the Court held that the order was justified given the Applicant’s age and the nature and purpose of the case. In doing so the Court ordered that the names of the Applicant and her litigation representative be:

a)    be replaced with pseudonyms;

b)    prohibited from publication; and

c)    redacted in any material that is provided to non-parties.

The Court did not find it necessary to make any broader orders as the Applicant presented no reason to anticipate that she would need to adduce or put into evidence any photographs or video material that might identify her. If subsequently, the Applicant sought to adduce such evidence, the matter should be dealt with on its merits as it arises.

The Court advances the following reasons in support of its decision:                                     

a)    A refusal to grant the suppression order would nullify the purpose of the case being the protection of the privacy of a child.

b)    There is public interest in ensuring that children, as some of the most vulnerable members of the community, receive the protection and care that the law affords. A child should not be required to sacrifice more of their privacy than is essential for the Court to undertake its judicial functions in a manner that is transparent to the public.

c)    Article 14(1) of the International Covenant on Civil and Political Rights exempts the right to open justice when the interests of the private lives of the parties so requires or where the interest of juvenile persons otherwise requires. The Court held that the privacy and delicacy of the Applicant’s case rendered it desirable to deviate from open justice.

d)    Australia has ratified the Convention on the Rights of the Child and is obliged to act consistently with the Convention. Article 3(1) states “In all actions concerning children…the best interest of the child shall be a primary consideration”. Article 16(1) states “No child shall be subject to arbitrary or unlawful interference with his or her privacy…”

The case serves as a reminder for all educators to ensure that they obtain appropriate consents before collecting or publishing information about their pupils, including their schoolwork.

Post by John Kell and Vanja Simic

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