JESSIE PORTEUS
Submission to the Department of
Prime Minister and Cabinet
2 November 2011
The time is ripe for a statutory cause of action
for invasions of privacy in Australia
The recent News of the World phone-hacking scandal has brought into sharp
focus a number of questions surrounding the scope and parameters of privacy
rights for individuals in Australia and around the world. With the Gillard
government announcing its intention to create a federal statutory action for
serious invasions of privacy, this area of law now necessitates comprehensive
analysis and review. This dissertation argues that the fragmented state of
Australian law does not currently provide sufficient or direct protection of
privacy. It surveys the gaps in privacy law previously canvassed in the 2008
Australian Law Reform Commission Report ‘For Your Information’ and the
2009 New South Wales Law Reform Commission Report ‘Invasion of Privacy’,
and evaluates the proposed reforms in light of recent developments. This
dissertation examines the reluctance of the common law and the inadequacy
of equity to stitch up the unravelling fabric of the current privacy framework,
and draws upon both domestic Commission Reports and best-practice
approaches in overseas jurisdictions to propose a statutory cause of action
which aims to strike a balance between the right to privacy in a technology
and media-driven world, and the fundamental right to freedom of speech.
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TABLE OF CONTENTS
TABLE OF CONTENTS......................................................................................................................2
INTRODUCTION..................................................................................................................................4
1. THE NEED FOR PRIVACY..........................................................................................................7
1.1.
Definitional Difficulties............................................................................................................7
1.2.
The Ripening of the Fruit......................................................................................................13
1.3.
The [Anti] Social Network.....................................................................................................15
1.4.
News of the World and the Phone-Hacking Scandal...........................................................21
1.5.
The Need for Privacy.............................................................................................................23
2. THE CURRENT PRIVACY LAW FRAMEWORK: AUSTRALIAN AND OVERSEAS
APPROACHES..............................................................................................................................25
2.1. The Missing Cause of Action.................................................................................................25
2.2. Tort: A Negligent Approach?...............................................................................................27
2.2.1.
The Case of New Zealand…………………………………………………………...………27
2.2.2.
The Case of The United States………………………………………………………………28
2.2.3.
A Privacy Tort in Australia?……………………………………………………………….29
2.3. Equity: The New Fusion Fallacy?.........................................................................................30
2.3.1.
The Case of the United Kingdom…………………………………………………………...30
2.3.2.
Extending breach of confidence in Australia?……………………………………………31
2.4. A Statutory Solution..............................................................................................................34
2.4.1.
The Case of North America……………………………………………………………....…34
2.4.2.
A Statutory Approach in Australia…………………………………………………………36
3. PREVIOUS ATTEMPTS AT REFORM…................................................................................37
3.1. The Australian Law Reform Commission Report..............................................................38
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3.2. The New South Wales Law Reform Commission Report..................................................42
3.3. The Australian Government’s Response.............................................................................46
4. REFORM PROPOSALS: THE INVASION OF PRIVACY ACT 2011 (CTH)........................48
4.1. New Federal Statute...............................................................................................................49
4.2. Objects Clause........................................................................................................................49
4.3. Definition.................................................................................................................................52
4.4. Entitlement.............................................................................................................................54
4.5. General Cause of Action........................................................................................................55
4.5.1.
Threshold……………………………………………………………………………………...55
4.5.2.
Test……………………………………………………………………………………………..56
4.5.3.
Mental Element……………………………………………………………………………….59
4.5.4.
Factors to be Taken into Account………………………………………………………..…60
4.5.5.
Consent………………………………………………………………………………………...61
4.5.6.
Limitation Period……………………………………………………………………………..63
4.6. Defences...................................................................................................................................64
4.7. Remedies.................................................................................................................................66
4.8. Education Campaign............................................................................................................67
4.9. A Familiar Inertia.................................................................................................................70
4.10. Future Application of the New Framework......................................................................71
CONCLUSION....................................................................................................................................73
APPENDIX...........................................................................................................................................75
Table 1: Current Legal Protection of Privacy...................................................................................75
Table 2: Elements, Defences and Remedies in Overseas Privacy Statutes.....................................81
Table 3: Comparison of Recommendations for a Statutory Cause of Action in Australia...........86
BIBLIOGRAPHY................................................................................................................................93
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INTRODUCTION
I do not pretend that it is easy to safeguard privacy in the current age. But surrendering the
endeavour as just too difficult to achieve is not an option.1
Most Australians are under the mistaken belief that they have a right to privacy. 2 At the same
time, Australians are increasingly willing to disclose private feelings, information and
photographs everyday on social networking websites and through other technological media
such as smart phones. Public knowledge about the realm of privacy protection is lessening,
yet, and somewhat paradoxically, Australians are lamenting the erosion of their privacy rights
as the ‘inevitable result of technological advance’,3 and are outraged by the recent scandal
surrounding widespread media phone-hacking.
The fabric of the privacy law framework is unravelling. The recent unveiling of surreptitious
behaviour by News of the World and other media organisations overseas has pulled the last
remaining thread, and has called into question the currently fragmented and ad-hoc approach
to protecting the various notions of personal privacy in Australia.
Darwin’s theory of evolution states that life’s forms evolve as Mother Nature’s forces
respond to new pressures exerted by changes in the environment. ‘The more dramatic the
change, the greater the pressure, the faster the evolution.’4 The law develops in much the
The Honourable Michael Kirby AC CMG, ‘Privacy, MySpace, YouTube and Facebook: Can the Law Cope?’
(Speech delivered at the Victorian Privacy Commission Privacy Oration, Melbourne, 1 September 2009) 11.
2
New South Wales Law Reform Commission, Invasion of Privacy, Report No. 120 (2009) 7 [3.1].
3
Ibid.
4
Dr Robert Dean, ‘A right to privacy?’ (2004) 78 Australian Law Journal 114.
1
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same way, as an organic and ever-changing life-form, responding to social, political and
economic changes around it.
A new wave of privacy regulation is now in an embryonic5 stage as a result of recent
developments. In 2011, there is an overwhelming need to change the currently defective
privacy framework, and to strike a flexible and common-sense balance6 between the privacy
interests of individuals and public concerns such as freedom of speech, national security and
freedom of information.
The purpose of this paper is to fill a gap in the academic literature by responding directly to
the recent phone-hacking scandal and other contemporary challenges to privacy by offering a
new legislative proposal. In formulating the proposal, this paper addresses the need for
general privacy protection in Australian law, given the current socio-economic climate,
advancements in technology, the domination of social networking in the everyday lives of
Australians, and the clandestine behaviour by major media organisations, brought to the
widespread attention of the public particularly over the last twelve months. This paper draws
upon the 2008 Australian Law Reform Commission Report For Your Information and the
2009 New South Wales Law Reform Commission Report Invasion of Privacy, and statutory
causes of action operating in Canada and other jurisdictions, which provide sound statutory
models upon which the proposed legislation is based.
This paper firstly considers why the issue of privacy should pervade current legal and
academic thinking. Chapter One evaluates the contemporary arguments as to why Australia
requires privacy protection and how modern threats to private life provide the impetus for
5
Carolyn Doyle and Mirko Bagaric, Privacy Law in Australia (Federation Press, 2005) 178.
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No
108 (2008) vol 1, 105-110 [1.82-1.93].
6
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legal reform in 2011. The Chapter pays particular attention to the explosion of social
networking, the free flow of information, and the News of the World phone-hacking scandal.
Secondly, the paper surveys the currently fragmented state of privacy law in Australia.
Chapter Two examines the fact that privacy is only incidentally protected under Australian
law. There is no general law protecting privacy. The chapter then evaluates the different
legal methods of privacy protection utilised in overseas jurisdictions such as New Zealand,
United Kingdom, Canada and the United States, and applies each approach to the Australian
legal landscape. By demonstrating the reluctance of the common law and the inadequacies of
equity to protect privacy, the chapter concludes that privacy is best protected through statute.
Thirdly, this paper reviews existing academic and legal literature on privacy law reform.
Chapter Three assesses and compares the previous models of reform put forward by the
Australian and New South Wales Law Reform Commissions in 2008 and 2009. The chapter
considers those recommendations in light of recent developments in order to plug the gap in
privacy laws and literature in 2011.
Finally, this paper will explain how to address the problems and gaps in privacy protection
canvassed in the previous chapters by proposing a new model for reform. Chapter Four
recommends new federal legislation that creates a statutory cause of action for invasions of
privacy. The proposed legislation draws upon the value of individual autonomy, the need for
national consistency and the delicate balancing process between individual privacy interests
and the public interest in freedom of expression. The chapter also recommends a
comprehensive education campaign aimed at improving social norms and expectations
relating to privacy.
This paper will illustrate that there is urgent need for Australia to build a new privacy
framework that adapts to contemporary concerns and values. The time is ripe for statutory
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protection of privacy.
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1. THE NEED FOR PRIVACY
In our overexposed world, is anything private anymore? Currently, the law recognises as
private only information that is completely secret. Information exposed to others is public.
Privacy, however, is far more complicated, as it involves a cluster of nuanced expectations of
accessibility, confidentiality and control. If we are to protect privacy today, we need to
rethink our understandings of privacy.7
1.1.
Definitional Difficulties
In order to understand why protection of privacy is needed in Australia and how it should be
protected, the intricacies and complexities within the meaning of privacy should first be
acknowledged.
‘Privacy seems to encompass everything, and therefore it appears to be nothing in itself.’8
While privacy law authors may disagree on the scope and parameters of privacy protection
and how it should be reformed, the one thing they can agree on is that there is no satisfactory
definition of privacy. Rhetoric such as: ‘[n]obody knows what that thing means. But you
have to define it; you have to define it. And the Court has not given it definition’,9 has
played a somewhat critical part in the Australian Government’s failure to develop a coherent
and uniform system of privacy laws.10 This essential first step has also been avoided by the
7
Daniel J Solove, The Future of Reputation: Gossip, Rumour, and Privacy on the Internet (Yale University
Press, 2007) 161.
8
Daniel J Solove, Understanding Privacy, (Harvard University Press, 2008) 7.
9
Nomination of Robert H. Bork to be an Associate Justice of the United States Supreme Court, Report of the
Committee on the Judiciary, US Senate, Washington: 13 Oct 1987, 32; cited in Raymond Wacks, Personal
Information: Privacy and the Law (Clarendon Press, 1993) 1.
10
Doyle and Bagaric, above n 5, 6.
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Law Reform Commissions in the past, defining privacy as something that should ‘speak for
itself’.11
Some authors have attempted to define privacy’s parameters, despite the commonly-held
belief that privacy is ‘beyond the scope of the law’. 12 In 1979, the Australian Law Reform
Commission described privacy as ‘material which so closely pertains to a person’s innermost
thoughts, actions and relationships that he [or she] may legitimately claim the prerogative of
deciding whether, with whom and under what circumstances he [or she] will share it’.13
Westin defined privacy as ‘the claim of individuals, groups, or institutions to determine for
themselves when, how and to what extent information about them is communicated to
others.’14 Cooley simply described it as the ‘right to be let alone’.15
The judicial definition proposed by Gleeson CJ in Lenah also appears to be widely accepted,
even finding endorsement by the Irish Working Group on Privacy:16
Certain kinds of information about a person, such as information relating to health, personal
relationships or finances, may be easy to identify as private; as may certain kinds of activity,
which a reasonable person applying contemporary standards of morals and behaviour, would
understand to be meant to be unobserved. The requirement that disclosure or observation of
information or conduct would be highly offensive to a reasonable person of ordinary
sensibilities is in many circumstances a useful practical test of what is private.17
11
New South Wales Law Reform Commission, Report No. 120, above n 2, 21 [4.16].
R F Hixson, Privacy in a Public Society: Human Rights in Conflict (Oxford University Press, 1987) 98.
13
Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, Report No 11 (1979) 109
[206].
14
Alan Westin, Privacy and Freedom (Atheneum, 1970) 7.
15
Thomas M. Cooley, Cooley on Torts 29 (2nd ed, 1888).
16
Irish Working Group on Privacy, Report of Working Group on Privacy (2006) 12.
17
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 226 [42] (Gleeson
CJ).
12
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The legal definition of privacy however remains elusive,18 particularly as social norms
change. The concept is ambiguous on at least three levels – status, features and coherence.19
Firstly, the status and value of privacy is uncertain. Privacy is not a recognised right in
Australia. Indeed, Australia has international obligations to protect people’s privacy. Article
12 of the Universal Declaration of Human Rights 1948 and Article 17 of the International
Covenant on Civil and Political Rights [‘ICCPR’] both provide that ‘no one shall be
subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and reputation.’20
Despite ratifying the ICCPR on 13 August 1980, Australia’s domestic approach follows a
traditional trend of reticence towards rights.21 In 1988, the Office of the United Nations High
Commissioner for Human Rights announced that Article 17 was to apply to states, natural
persons and legal persons, and that ‘all member states are required to adopt legislative and
other measures to give effect to the prohibition against such interferences and attacks as well
as to the protection of this right’.22 The Australian government passed the Privacy Act 1988
(Cth) as a way to implement the ICCPR obligations. However, the Act only relates to
information privacy and therefore only partially implements Article 17. Furthermore,
Australia does not have a Bill of Rights (although ACT23 and Victoria24 have rights
legislation), which is another possible method of implementing Article 17 and other rights.
As a result, privacy is not a wholly-recognised right in Australia.
18
Raymond Wacks, Personal Information: Privacy and the Law (Clarendon Press, 1993) 13.
Ibid, 13-14.
20
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, (entered into
force 13 March 1976) [1980] ATS 23, Article 17; and Universal Declaration on Human Rights, GA Res 217A
[III], UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) Article 12.
21
David Lindsay, ‘An Exploration of the Conceptual Basis of Privacy and the Implications for the Future of
Australian Privacy Law’ (2005) Melbourne University Law Review 4, 5.
22
Office of the United Nations High Commissioner for Human Rights (1988) General Comment Number 16.
23
Human Rights Act 2004 (ACT) s12.
24
Charter of Human Rights and Responsibilities Act 2006 (Vic) s13.
19
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Secondly, the features of privacy are unformulated. In 1890, American writers Warren and
Brandeis argued that there should be a general right to privacy in the United States.25 This
spawned the development of four types of privacy invasion, which were authoritatively stated
by Prosser in 1960 as intrusion upon seclusion, public disclosure of embarrassing private
facts, appropriation of the plaintiff’s name and likeness, and publicity which puts the plaintiff
in false light.26 However, Prosser’s features of privacy do not wholly represent all of the
types of privacy interests valued by individuals, nor do they reveal the only ways in which
privacy can be invaded. Wacks argues that by addressing the issue of privacy in terms of
personal information only, the definitional strait-jacket is removed, resulting in a ‘less
artificial and more effective legal resolution’.27 However, restricting the concept to
information privacy limits the boundaries of the concept. What about some less traditional
features of privacy such as sexual orientation, gender identity or a woman’s decision to use
contraceptives or abort a foetus?28 On the one hand it would be impractical to list every
conceivable invasion of privacy. On the other hand, there is merit in arguing that privacy
must have value to be effective. The worth and features of privacy must therefore derive
from social values and norms. The definition is heavily reliant on context.
Demarcating between what is private and what is public is also an indeterminate exercise. ‘A
strict public/private divide is unsustainable - or at least is a very blurred ideal. Not only is the
boundary between public and private constantly shifting but it is inherently political.’29 A
broad interpretation of the meaning of private life is expounded in Von Hannover v Germany
[2004] ECHR 294, which held that any publication of an unauthorised photograph taken of a
particular person engaged in everyday activities outside their public duty will constitute a
Samuel D. Warren and Louis D. Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193, 196.
William L. Prosser, ‘Privacy’ (1960) 48 California Law Review 383, 389.
27
Wacks, above n 18, 10.
28
Brett Mason, Privacy without Principle: The Use and Abuse of Privacy in Australian Law and Public Policy
(Australian Scholarly Publishing, 2006) 16.
29
Ibid, 3.
25
26
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violation of the right to privacy under Article 8 of the European Convention on Human
Rights [‘ECHR’].30 In Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, the Court
held that the 19-month old son of the writer of the Harry Potter books, JK Rowling, had an
action for invasion of privacy as a result of a photograph being taken of the family walking
down a public street. The Court reasoned that Big Pictures UK Ltd would not have taken the
photograph if he was the child of ordinary parents.31 Drawing a line between public and
private spheres is therefore a highly context-dependent exercise. An activity is not private
simply because it is not done in public, and at the same time, an activity does not lose its
private nature simply because it occurs in a public place.32
Furthermore, in the modern world of technology and social networking, it may not be
possible to enforce a binary view of public versus private spheres. Rather, a more nuanced
view may need to be adopted, given the ease in which something that takes place in public
can be made permanent and widespread simply by uploading a photo to the internet or
sending photos via mobile phone technology, by members of the public or the members of
what has become known as the ‘citizen media’.33 Other modern developments also highlight
the blurring of the private and public spheres and the increased intrusion upon individual
privacy, such as full body scanners at airports, identification-card scanners and facial
recognition at nightclubs, smart cards, telemarketing, debt recovery, anti-terrorism checks,
Google Earth and WikiLeaks. How can we deal with an increasingly invasive and globalised
world where nothing is sacred anymore? A flexible definition of privacy will allow the law
to adapt to these invasions.
30
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4
November 1950, 213 UNTS 221 (entered into force 3 September 1953).
31
Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446.
32
New South Wales Law Reform Commission, Report No 120, above n 2, 20 [5.27].
33
Solove, above n 7, 7-8.
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Thirdly, protection of privacy is incoherent. The Australian legal system only protects
privacy indirectly through protecting some of the values underpinning it, such as property
rights, human dignity and reputation. This parasitic34 approach means that the current
framework fails to achieve direct and effective legal privacy protection. These difficulties are
further ‘exacerbated when a precise definition of the term is sought for legal purposes’.35
Ultimately, the concept currently does not have a consistent core36 capable of providing hard
and fast answers to what is private and what is not. This is further illustrated in Chapter Two
of this paper.
What makes the meaning of privacy even more difficult to characterise is the fluidity of the
concept. The concept changes according to generational norms, particularly in relation to the
dissemination of personal information:
It does appear that young people are more comfortable than their parents, and certainly their
grandparents, in sharing personal information, photos and other material on social networking
websites. The question is whether this represents the beginnings of an enduring cultural shift, or
simply the eternal recklessness of youth, played out in a new medium and utilising new
technology. Put another way, will today’s teenagers be horrified in a decade’s time when
prospective employers—and prospective partners and in-laws—can easily ‘google up’ intimate
and potentially embarrassing images and information?37
There exist immense difficulties for lawmakers and academic writers in arriving at a
definition of privacy. However, the common element that unites the literature is that
privacy’s meaning is contextually-relative. The following discussion identifies the current
legal and social context that should inform the meaning of privacy, which demonstrates why
it is necessary to give legal recognition to privacy interests in Australia.
34
Mason, above n 28, 18. See also Chapter 2 and Appendix: Table 1.
New South Wales Law Reform Commission, Report No 120, above n 2, 11 [4.2].
36
Mason, above n 28, 6.
37
Australian Law Reform Commission, Report No 108, above n 6, vol 1, 108.
35
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1.2.
The Ripening of the Fruit
Privacy is a key policy issue facing our legal system.38 There is an overwhelming need for
protection of personal privacy. The exigencies of modern day living, our media-driven
society, the connectedness resulting from the forces of globalisation and the advent of social
networking have coalesced to create a world where there appears to be only one domain – the
public domain. The News of the World phone-hacking scandal should represent the last
remaining sensationalist disclosure39 to spark the privacy debate in Australia. It is time to
reform the law.
A decade has elapsed since Justice Callinan advocated for change to the privacy law
framework in the landmark case of Australian Broadcasting Commission v Lenah Game
Meats (2001) 208 CLR 199 [‘Lenah’]:
Having regard to current conditions in this country, and developments of law in other
common law jurisdictions, the time is ripe for consideration whether... the legislatures should
be left to determine whether provisions for a remedy for [a tort of invasion of privacy] should
be made...40
Is the time still ripe in 2011? Or has the proverbial privacy fruit gone bad with age?
The Prime Minister, Julia Gillard, believes it is picking season. On 21 July 2011, the Prime
Minister announced ‘[w]hen people have seen telephones hacked into, when people have
seen individuals grieving have to deal with all of this, then I do think that causes them to ask
Simon Chester, Jason Murphy and Eric Robb, ‘Zapping the paparazzi: is the tort of privacy alive and well?’
(2003) 27 Advocates’ Quarterly 357, 358.
39
Raymond Wacks, Privacy and Press Freedom (Blackstone Press Limited, 1995) 1.
40
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 328 at [335]
(Callinan J).
38
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some questions here in our country.’41 A consultation period for privacy reform was
launched following this announcement, with Federal Privacy and Freedom of Information
Minister Brendan O’Connor explaining that the Government is ‘very serious about having
this discussion’ following the News of the World scandal, and that ‘there are two ideals we
uphold as a government - freedom of speech, and people’s right to have a private life’.42 In
September 2011, the Government released an Issues Paper, confirming this rationale and
expressing support for a statutory cause of action for serious invasions of privacy.43
While Lenah left the door open for the common law to develop a cause of action for breach
of privacy, a judicial majority is yet to take the bold step44 in developing the action.
Moreover, despite the best efforts and recommendations of the Australian and New South
Wales Law Reform Commissions, Australia has succumbed to both political inertia and
conservatism by refusing to recognise a right to privacy and by failing to provide a statutory
cause of action for privacy invasion.
The time is ripe45 for a cause of action for invasions of privacy, and Australian lawmakers
must take this step using a legislative framework. This is a logical and desirable step,46 given
the current social, political and technological environment. Privacy laws have not kept pace
with changes in society. The following discussion analyses two broad concerns underpinning
the current debate on privacy reform; the boundless flow of information on the internet, and
the underhanded behaviour by media organisations, both of which seriously threaten personal
privacy.
Julia Gillard, quoted in Katharine Murphy, ‘Canberra to move on Privacy Law’, The Age (online) July 21
2011 <http://www.theage.com.au/national/canberra-to-move-on-privacy-law-201107201hp19.html#ixzz1T58aRPfx>.
42
Ibid.
43
Commonwealth, A Commonwealth Statutory Cause of Action for Invasions of Privacy, Issues Paper (2011).
44
Grosse v Purvis [2003] QDC 151 (16 June 2003) (Skoien J).
45
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 328 at [335]
(Callinan J).
46
Grosse v Purvis [2003] QDC 151 (16 June 2003) (Skoien J).
41
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1.3.
The [Anti] Social Network
Each era in human history faces new threats in the battle for privacy. The cause stays the
same. It is only the weapons that change. From freedom from government intrusion in the
18th century to phone-hacking and Facebook stalking in the 21st Century, the pendulum
constantly swings between the right to privacy and the right to freedom of expression and
never quite seems to reach equilibrium. The inability to achieve a comfortable balance
between privacy and free speech continues unabatedly.
The explosion of new technology represents an advanced set of weaponry, threatening
personal privacy in a way never anticipated. However, it is not just the technology to blame.
We are, somewhat, authors of our own demise; our own worst enemy. We’re invading each
other’s privacy and our own47 almost every day, particularly by what we expose on the
internet. Network sharing sites such as YouTube, Twitter, Flickr and LinkedIn, and social
media sites such as MySpace and Facebook, invite us to share our most private and intimate
thoughts and feelings, our name, our hometown, our workplace, our marital status and our
image. Online services such as Cheaterville allow individuals to post the name, picture and
details of others who have been unfaithful in romantic relationships, in order to warn others
against engaging in relationships with those individuals.48 The website does not check the
accuracy of the allegations, and only provides a comment section so that the identified
individuals can respond. Facebook’s Check-In service allows users to post on their page
where they are and who they’re with. Google’s new Hangouts and Circle services provide
similar features. However, Google claims to allow users to share information with the people
that are authorised to access such information:
47
48
Solove, above n 7, vii.
Cheaterville, Cheaterville Home (5 October 2011) Cheaterville < http://cheaterville.com/>.
P a g e | 17
You share different things with different people. But sharing the right stuff with the right
people shouldn’t be a hassle. Circles make it easy to put your friends from Saturday night in
one circle, your parents in another, and your boss in a circle by himself, just like real life.49
Almost every era has seen technology increase the flow of information; with the penny press
in the 1830s, the telephone in 1876, the snap camera in 1884, radio in 1900s, modern
television in the 1950s, the internet in the mid 1990s and smart phones within the last ten
years. The Gillard Government’s current commitment to build the National Broadband
Network [‘NBN’] means that 93% of Australians will have access to the internet via a high
speed fibre network once roll-out of the network is completed,50 and Australia will be among
the world’s leading digital economies by 2020.51 Yet the internet poses different challenges
than its technological predecessors. It is a developing technology, potentially without limits.
In the offline world, people had their fifteen minutes of fame and were forgotten the next day.
The internet’s boundless and omnipresent nature means that people’s stories are always
accessible. In a matter of milliseconds, that embarrassing thing you did last night is just a
Google search away,52 accessible to the entire world, saved as personal chronicles for
infinity, and remaining permanent ‘digital baggage’.53
With the click of a button, information can be instantaneously uploaded online and shared
with others, whether from a mobile phone, computer, webcam, Ipad or other electronic
device. With an increasingly-evolving ecosystem of interconnected networks developing
online, the free flow of information has reached enormous levels never before seen by
humankind. To illustrate, there are 750 million active users on Facebook, who collectively
49
Google, A Quick Look at Google+ (28 September 2011) Google <https://www.google.com/intl/en/+/
learnmore/index.html#circles>.
50
Commonwealth, Issues Paper, above n 43, 10.
51
Department of Broadband, Communications and the Digital Economy, The Vision (23 October 2011) National
Broadband Network < http://www.nbn.gov.au/the-vision/>.
52
Ruben Rodrigues, ‘Privacy on Social Networks: Norms, Markets and Natural Monopoly’ in Saul Levmore
and Martha C Nussbaum (eds), The Offensive Internet (Harvard University Press, 2010) 237.
53
Solove above n 7, 10.
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spend over 700 billion minutes on the site a month.54 Facebook is the second most-visited
site in Australia.55 Twitter boasts over 100 million active users.56 Around 3 billion YouTube
videos are viewed everyday.57 This represents a phenomenal flow of information globally.
Online information can be a cash-cow for advertisers and online businesses, and also for the
social networking sites that provide the information. For instance, when a user ‘likes’ a page
on Facebook, such as a certain clothing brand or a confectionary product, Facebook can sell
ads to those businesses targeted at the users who like the page. Facebook receives data from
advertisers when users visit their sites, even if the user’s profile is set to private. Facebook
then sells the user’s endorsement, ‘with no payment other than the continued use of its
website’.58 Facebook made $2 billion last year, which was a 157% increase from 2009.59
With one click on an online advertisement, Facebook assumes it to be an endorsement worth
sharing. ‘Listen to a music app, and every song will appear in ‘tickers’ of your friends… Go
for a run using Nike Plus, an electronic distance calculator, your effort is logged for all to
critique. Watch a movie, its title is broadcast to all you know.’60 Guvera, a music-sharing
service, provides free music downloads to individuals in exchange for personal information
such as their likes and dislikes, which are used by the company’s advertising partners.61
Individuals may therefore be more inclined to provide personal information if they perceive
that some tangible benefit will arise from the disclosure.
54
Facebook, Statistics (14 September 2011) Facebook <http://www.facebook.com/press/info.php?statistics>.
Tim Dick, ‘From private life to public knowledge’, News Review, Sydney Morning Herald (Sydney) 1
October 2011, 7.
56
Twitter, ‘One hundred million voices’ on Twitter, Twitter Blog (8 September 2011) <http://blog.twitter.com>.
57
YouTube, Statistics (14 September 2011) YouTube <http://www.youtube.com/t/press_statistics>.
58
Dick, above n 55.
59
eMarketer.com, cited in Dick, above n 55.
60
Dick, above n 55.
61
Michelle Star, ‘Guvera music site uses guerrilla advertising tactics’, C Net (15 March 2010) <http://www.
cnet.com.au/ guvera-music-site-uses-guerrilla-advertising-tactics-339301774.htm>.
55
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Critics also argue that Facebook cookies, which are packets of data used to track user
behaviour, keep sending information to Facebook even after the user logs out, resulting in
‘silent total surveillance’.62 Facebook bluntly responded to these criticisms: ‘we don’t share
information we receive about you with others’.63 However, Facebook’s privacy policy, under
the heading ‘how we share information’, provides large exceptions to this rule. Facebook
shares users’ information in a range of situations. For example, when it has the user’s
permission, a user invites a friend to join, or for advertising and offering services.
Significantly, a search engine can gain access to the name and profile picture of a user, and
anything else which is set to the ‘Everyone’ setting.64 Such frictionless sharing of
information is beyond individual control, unless the user leaves the site.
YouTube and social networking sites have meant that the media also has access to this public
and voluntarily-provided information, which has led to the creation of internet sensations,
celebrities and scandals. In 2008, Olympic swimmer Stephanie Rice caused controversy over
raunchy photographs of her in a police costume on her Facebook page. The photos were
removed from Facebook but were then reproduced on the Daily Telegraph’s website,
receiving 1.7 million hits in one week.65 In 2009, 19 year old Sydney woman Claire
Werbeloff became known as the Chk-Chk-Boom-girl when her eye-witness account of a
Kings Cross shooting went viral on YouTube and was later exposed as an elaborate lie. The
story was covered by the Australian media, including A Current Affair. She was hounded by
the press and turned to a Public Relations agency to handle the attention it caused.66 In
March this year, fifteen year old Casey Haynes fought back against a schoolyard bully, with
62
Dick, above n 55.
Dick, above n 55.
64
Facebook, Data Use Policy (September 2011) Facebook <http://www.facebook.com/full_data_use_policy>.
65
Angela Saurine, ‘Stephanie Rice Facebook pictures censored’, Daily Telegraph (online), April 2 2008
<http://www.dailytelegraph.com.au/news/rice-facebook-pics-censored/story-0-1111115947818>.
66
Daily Telegraph, ‘Chk Chk Boom girl Clare Werbeloff flees as Facebook fury erupts’, Daily Telegraph
(online), 25 May 2009 < http://www.dailytelegraph.com.au/news/chk-chk-boom-girl-claire-werbeloff-flees-asfacebook-fury-erupts/story-e6freuy9-1225715728133>.
63
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the fight being caught on camera and posted on YouTube,67 which also created a media
frenzy. Currently, these individuals have no redress for invasion of their privacy.
On the other hand, online anonymity has proved fatal in a number of cases. In the United
States, a thirteen year old girl committed suicide after the mother of one of her school friends
purported to be her boyfriend, and then told her that the world would be better off without
her.68 This and other situations of cyber-bullying indicate that the law currently offers no
effective solution to privacy issues online.
The explosion of online information and interconnectedness therefore necessitates a
comprehensive and effective education campaign so that individuals may be informed and
warned about the long-term consequences of their behaviour online. A US study has
revealed that 20 million Facebook users are under eighteen years of age. Over 7.5 million
users are under thirteen,69 which is the stipulated minimum age of users under Facebook’s
Statement of Rights and Responsibilities.70 Five million are under 10 years.71 These
worrying statistics indicate that young people are placing themselves at risk of dangerous
online behaviour such as cyber-bullying, and could be targeted by sexual predators.
Furthermore, young people fail to appreciate the implications that online information can
have for the future.
67
YouTube, Victim fights back in NSW Sydney school (16 March 2011) YouTube, <http://www.youtube.com
/watch? v=isfn4OxCPQs>.
68
Mail Online, ‘Girl, 13, commits suicide after being cyber-bullied by neighbour posing as teenage boy’, Daily
Mail (online) 19 November 2007 <http://www.dailymail.co.uk/news/article-494809/Girl-13-commits-suicidecyber-bullied-neighbour-posing-teenage-boy.html>.
69
Dawn.com, ‘7.5 million Facebook users are under 13’, Dawn.com (online), 12 May 2011 <http://www.dawn.
com/2011/05/12/7-5-million-facebook-users-are-under-13-study.html>.
70
See Rule 4.5 in Facebook, ‘Statement of Rights and Responsibilities’ Facebook.com (online), 26 April 2011
<http://www.facebook.com/terms.php>.
71
Dawn.com, above n 69.
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These scenarios and studies pose the question, has the free flow of information made us less
free?72 The long-term consequences may be dire for people whose personal image or
information is found online and spread further by the media. Employment opportunities and
personal and family relationships may be adversely affected. An interesting exercise
illustrating the extent of availability of this type of information occurred at Fordham
University in the United States, where a Law Professor, angered by Justice Scalia’s
reluctance to support protection of personal information, set his students the task of collecting
as much information about the judge as they could. The students turned in fifteen pages of
information, which included his Honour’s home address, telephone number, value of his
home, his wife’s personal email address, photos of his grandchildren and even his personal
movie and food preferences.73 His Honour’s response was that the project was ‘perfectly
legal’ but it showed ‘abominably poor judgment’.74 This type of project illustrates that once
information is in the public space, it becomes public property and is therefore beyond
individual control.75 The value of individual autonomy is diminished.
However, this paper is not arguing that such technological advances are all negative within
contemporary society. The internet provides extraordinary possibilities and limitless
advantages for human welfare and collective knowledge. Some technological advancements
that might impinge on privacy may in fact facilitate the common good and the public interest,
for example the iPhone Application which captures a photo of anyone who tries to unlock a
stolen phone and sends it to the nominated email address of the phone’s owner.76 However,
there is potential for technology to be abused. For example, in August this year a male
72
Solove, above n 7, 2.
Marta Neal, ‘Fordham Law Class Collects Personal Info about Scalia’ American Bar Association Journal
(online) 29 April 2009 <http://www.abajournal.com/news/article/fordham_law_class_collects_scalia_
info_justice_is_steamed>.
74
Ibid.
75
Kirby, above n 1, 7.
76
CBS News, ‘Say Cheese! iPhone App catches thief’, CBS News (online), 8 October 2011 <http://www.
cbsnews.com/stories/2011/10/08/scitech/main20117622.shtml>.
73
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Australian Defence Force Academy cadet was charged with indecency and suspended from
training after he used his mobile phone to film a female cadet in the shower.77 This paper
brings into sharp focus the main challenges and policy issues raised by such technological
advancements, which should be addressed by law and education.
Even before the birth of the internet, American writers Warren and Brandeis acknowledged
the increasing importance of privacy to the individual in modern day life:
The intensity and complexity of life, attendant upon advancing civilisation, have rendered
necessary some retreat from the world, and man [or woman], the refining influence of culture,
has become more sensitive to publicity, so that solitude and privacy have become more
essential to the individual; but modern enterprise and invention have, through invasions upon
his [or her] privacy, subjected him [or her] to mental pain and distress, far greater than could
be inflicted by mere bodily injury.78
In 1976, after the adoption of the ICCPR, the United Nations [‘UN’] recommended that
‘States… adopt legislation, or bring up to date existing legislation, so as to provide protection
for the privacy of the individual against invasions by modern technological devices’.79 As
the Honourable Justice Michael Kirby noted, the amount of publicly-available personal
information is likely to increase rather than decrease: ‘Access to this information is what
occasions the contemporary fragility of privacy – a human attribute that has been steadily
eroded over the last century’.80 The development of modern technology and communication
therefore provide very strong reasons to protect privacy and provide redress for those whose
privacy is invaded.
ABC News, ‘ADFA cadet suspended over shower scandal’, ABC News (online), 27 August 2011
<http://www.abc.net.au/news/2011-08-27/adfa-cadet-suspended-after-shower-scandal/2858408>.
78
Warren and Brandeis, above n 25, 196.
79
United Nations Secretary General, Respect for the privacy and integrity and sovereignty of nations in the light
of advances in recording and other techniques, UN Doc E/CN.4/1116 (1976).
80
The Honourable Justice Michael Kirby, ‘Privacy in Cyberspace’ (1998) 21 University of New South Wales
Law Journal 323, 325.
77
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1.4.
News of the World and the Phone-Hacking Scandal
While we voluntarily reveal personal information everyday in the online realm, there are
many situations in modern life where invasions of our privacy are out of our control. The
recent behaviour by the now-defunct News of the World sent shockwaves throughout the
globe when serious allegations of phone-hacking were made against the newspaper.
Involved in illegal voicemail interception, News of the World engaged in ‘lawbreaking on an
industrial scale.’81 Individuals’ private and innermost feelings were essentially ‘bought and
sold for commercial gain.’82 Subsequent investigation of the newspaper’s actions revealed
that the practice of phone-hacking was widespread within the organisation, and was openly
discussed in editorial conferences, until the Editor, Andy Coulson, banned explicit reference
to the term.83
News of the World hired private investigators to hack into the phones of not only the Royal
family and celebrities, such as Hugh Grant and Scarlett Johansson, but also the phones of
private citizens. The voicemails of victims and families of the victims of the 9/11 terrorist
attacks in New York were allegedly targeted, which would have likely included ‘harrowing
messages from desperate loved ones trying to make contact with their relatives’.84 News of
the World was also found to have hacked into the voicemail of murdered school girl from the
United Kingdom, Milly Dowler, and allegedly deleted some of Milly’s voicemails, which
Australian Broadcasting Corporation, ‘Bad News’, Four Corners, 29 August 2011 (Gordon Brown).
Ibid.
83
Julia May, ‘Letter reopens hacking scandal’, Sydney Morning Herald (online) 17 August 2011 <http://www.
smh.com.au/world/letter-reopens-hacking-scandal-20110816-1iwka.html >.
84
Sydney Morning Herald, ‘9/11 victims ‘targeted’ by tabloid phone hackers’, Sydney Morning Herald (online),
11 July 2011 < http://www.smh.com.au/world/911-victims-targeted-by-tabloid-phone-hackers-201107111ha90.html>.
81
82
P a g e | 24
gave her family hope that she was alive.85 Furthermore, the Murdoch press was recently
investigated for hacking into the computers of competitors and for engaging in industrial
espionage.86 The case settled out of court for an estimated $500 million.87
Although there has been no evidence to suggest that this sort of behaviour is occurring in
Australia, such events ‘put the spotlight on whether there should be a [right to privacy]’,88
and have led to widespread concern in the community.89 The phone-hacking scandal has
brought into sharp focus the need for adequate privacy protection in Australia so that this
kind of behaviour is discouraged and prevented. Indeed, if an Australian media organisation
acted in the same fashion, they would be guilty of an offence under section 7 of the
Telecommunications (Interception and Access) Act 1979 (Cth).90 However, looking more
broadly and outside the phone-hacking scandal, there are major deficiencies in privacy laws
in Australia, particularly where the privacy of individuals are being invaded by the media.
The News of the World situation simply sheds light on the need for a closer examination of
the gaps and unravelling threads in Australia’s privacy framework.
1.5.
The Need for Privacy Protection
Nick Davies and Amelia Hill, ‘Missing Milly Dowler’s voicemail was hacked by News of the World’, The
Guardian (online) 4 July 2011 <http://www.guardian.co.uk/uk/2011/jul/04/milly-dowler-voicemail-hackednews-of-world>.
86
Scott Zamost, Todd Schwarzschild and Drew Griffin, ‘Exclusive: Videos detail News America tactics against
competitors’ CNN US (online) 14 October 2011 <http://articles.cnn.com/2011-10-14/us/us_news-corpamerica_1_world-phone-hacking-scandal-news-corp-british-newspaper?_s=PM:US>.
87
CNN, ‘Tapes show News Corp. subsidiary tactics’ CNN (online) 14 October 2011 <http://edition.cnn.com/
video/#/video/crime/2011/10/13/pkg-griffin-newscorp-hacking.cnn?hpt=hp_t2>.
88
Brendan O’Connor, A Right to Privacy in Australia (21 July 2011) Attorney General <http://www.ag.gov.au/
www/ministers/oconnor.nsf/Page/MediaReleases_2011_ThirdQuarter_21July2011-ArighttoprivacyinAustralia>.
89
For example, 51% in an online poll said they had become more concerned about phone-hacking following the
scandal: ‘Aussies concerned about phone-hacking’ The Age (online) 25 July 2011 <http://news.theage.com.au/
breaking-news-national/aussies-concerned-about-phone-hacking-20110725-1hwuc.html>.
90
See also Chapter Two and Appendix Table One.
85
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Privacy provides individual autonomy, emotional security, the sharing of confidences and
intimacies, and enhances the ability to reflect on personal values.91 Privacy is integral to an
individual’s social and intimate relationships, mental health, employment, freedom and
creativity.92
Invasions of privacy can occur in a myriad of ways in contemporary society. The methods by
which others can invade privacy will only increase as technology advances. The law must
therefore adapt continually to changes and developments in the surrounding environment.
Social networking, globalisation and the free flow of information have operated to increase
the amount of personal information available in the public domain, and events such as phonehacking this year have drawn attention to the failure of the law to protect personal privacy
and the ease in which privacy can be invaded. Telemarketing, reality TV shows like Big
Brother, the Bill Henson photography scandal93 and the prospect of introducing an Australia
Card94 also indicate that privacy is a large and topical issue.95 While these situations ‘pose
new and difficult issues, they are variations on the same immemorial tensions in the law in
Australia: the tension between privacy and free speech, the nature of privacy, [and] the
virtues and vices of gossip and shaming.’96
The means used to intrude upon individual privacy will continue to change. The reasons for
privacy protection will remain the same. The law, as it stands currently, does not address
these concerns.
91
Westin, above n 14, 33.
Wacks, above n 18, 11.
93
Wendy Frew, ‘Artists may face classification to counter nudity’, The Age (online), 18 April 2011
<http://www.theage.com.au/entertainment/art-and-design/artists-may-face-classification-to-counter-nudity20110417-1djrv.html>.
94
Australia Card Bill 1986 (Cth).
95
The invasion of the author’s privacy has further informed the views expressed in this paper. The author’s
wallet was stolen in 2010 by a drug-addicted thief at a supermarket, and later the author’s identity was stolen
through posing as the author to a bank teller to take money from the author’s accounts and to take a car for a
test-drive.
96
Solove, above n 7, 205.
92
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2. THE CURRENT PRIVACY LAW FRAMEWORK:
AUSTRALIAN AND OVERSEAS APPROACHES
Do humans actually have a right to privacy? If so, where does it come from? What is
its scope? How does it rank in comparison to other rights? Legal discourse has not
sufficiently addressed these issues. Most privacy advocates simply assume that the right to
privacy has a sound foundation.97
2.1.
The Missing Cause of Action98
Privacy is a multifaceted concept which is currently protected in a piecemeal and patchy
fashion, developing at different rates and in different jurisdictions, devoid of an overarching
rationale.99 This is visibly evident in Appendix Table 1: Current Legal Protection of
Privacy,100 which shows how different components of privacy are currently protected under
Australian law. The table illustrates that privacy in general is, at best, protected incidentally.
For example, criminal law and tort protect some aspects of territorial privacy101 and bodily
privacy.102 Defamation law protects reputation, but only to the extent that the information
published is untrue.103 Equity protects information imparted under the obligation of
confidence.104 Certain statutes prevent phone-tapping and surveillance without authority.105
97
Doyle and Bagaric, above n 5, 13.
New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper 1 (2007) 56 [2.85].
99
Doyle and Bagaric, above n 5, 98.
100
See page 75.
101
Inclosed Lands Protection Act 1901 (NSW) s4; Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR
457, 465.
102
Summary Offences Act 1988 (NSW), Crimes Act 1900 (NSW); Wilkinson v Downton [1897] 2 QB 57.
103
Defamation Act 1974 (NSW).
104
Coco v AN Clark (Engineers) Ltd. [1969] RPC 41.
105
Telecommunications (Interception and Access) Act 1979 (Cth).
98
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While the most highly regulated protection of privacy occurs in the information privacy
realm,106 even this statutory scheme is ‘complex, uneven, often overlapping and far from
uniform throughout the country’.107
Significantly, there is no general action for breach of privacy in Australia. This creates
uncertainty and inconsistency, particularly because the common law is developing at different
rates and in different ways across the states and territories. This poses large difficulties for
individuals and corporations who need to ‘assess the effect of the law on their operations and
to implement appropriate policies to minimise their potential liability’ under the law.108
Furthermore, as exemplified by Table 1 of the Appendix, invasions of privacy by the media
or other individuals would only be covered peripherally and partially by the current
framework. There is essentially no one-stop-shop for privacy protection. The fabric of the
Australian privacy law system is therefore inadequate.
For the reasons examined below, and through evaluation of the approaches used in overseas
jurisdictions, this paper argues that a statutory cause of action is the preferred method of
protection for privacy. This is also generally supported by the ALRC109 and NSWLRC.110
Extending existing common law or equitable actions is not appropriate for the kind of privacy
protection envisaged by this paper. This Chapter examines the inadequacies of those
methods.
106
Privacy Act 1988 (Cth).
Doyle and Bagaric, above n 5, 98.
108
Australian Law Reform Commission, Report 108, above n 6, vol 3, 2536, [74.2].
109
Ibid, vol 3, 2564 [74.116].
110
New South Wales Law Reform Commission, Report No 120, above n 2, 21-22 [4.16]-[4.17].
107
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2.2.
Tort: a ‘Negligent’ Approach
2.2.1. The Case of New Zealand
New Zealand takes a common law approach to protection of privacy. The privacy tort
established by Hosking v Runting [2005] 1 NZLR 1 [‘Hosking’] requires two fundamental
requirements to be proved – firstly, the existence of facts in which there is a reasonable
expectation of privacy and secondly, the publicity of those facts are considered highly
offensive to an objective reasonable person.111 The Court has regard to the particular facts of
the case and the use of the offending material in the circumstances.112
However, the approach in New Zealand is narrow. In fact, the Court of Appeal in Hosking
held that any all-encompassing action for breach of privacy should be ‘at the instigation of
the legislature, not the courts’.113 The common law action is restricted only to invasions of
privacy where the defendant gives publicity to private and personal information of the
plaintiff.114 The tort does not cover intrusions upon a plaintiff’s seclusion. The tort does not
protect situations where the private act or information is not publicised, for example in a
peeping-Tom scenario where privacy is invaded by a neighbour looking into the home of
another and viewing intimate acts or conversations. The tort also does not provide a simple
test for determining what a private fact is.115
Only fifteen people have taken action under this tort, many of them without a public
profile.116
111
Hosking v Runting [2005] 1 NZLR 1, [117] (Gault P and Blanchard JJ).
Rogers v TVNZ [2007] NZSC 91, [59] (Tipping J).
113
Hosking v Runting [2005] 1 NZLR 1, [110] (Gault P and Blanchard JJ).
114
Hosking v Runting [2005] 1 NZLR 1, [148] (Gault P and Blanchard JJ), and [244] (Tipping J).
115
Hosking v Runting [2005] 1 NZLR 1, [110], [119] (Gault and Blanchard JJ); see also Amanda Stickley,
‘Common Law Tort of Privacy – Faltering Steps?’ (2004) 25 Queensland Lawyer 81, 82.
116
This includes lower court decisions before Hosking: Professor John Burrows, ‘Privacy and the Courts’
(Speech delivered to the Privacy Forum, Wellington New Zealand, 27 August 2008).
112
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2.2.2. The Case of the United States
A majority of American states provide common-law privacy protection.117 However, the
original complex-of-four torts put forward by Prosser in 1960 (seclusion, appropriation,
publicity and false light)118 have proved of limited effect in the United States. 119 The torts
‘failed to provide effective protection of privacy,’ 120 because of the priority afforded to free
speech under the First Amendment of the United States Constitution. Whilst the privacy torts
were not originally anchored in any constitutional guarantees, the Courts have since
developed zones of privacy121 within a penumbra of guarantees under the Bill of Rights, in
order to provide constitutional protection of privacy. 122
Despite this, constitutional privacy laws only cover narrow issues such as marriage, the
family, procreation and abortion, and do not extend to information and seclusion privacy.123
This is largely due to the strength of the constitutionally-entrenched right to freedom of the
press,124 and the low threshold requirement for disclosure of information: If information is
newsworthy, it is generally held to be of legitimate public concern and may be published.125
117
Only Virginia, Minnesota, Rhode Island and Wisconsin do not protect privacy: see New South Wales Law
Reform Commission, Consultation Paper 1, above n 98, 94 [4.7].
118
Prosser, above n 26, 389.
119
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2540 [74.19].
120
David A Anderson, ‘The Failure of American Privacy Law’ in Basil S Markensis (ed) Protecting Privacy:
The Clifford Chance Lectures Volume 4 (Oxford University Press, 1999) 151.
121
New South Wales Law Reform Commission, Consultation Paper 1, above n 98, 97-98 [4.15].
122
Griswold v Connecticut 381 US 479 (1965).
123
Mason, above n 28, 47.
124
United States Constitution First Amendment.
125
Restatement (Second) of Torts § 652D.
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2.2.3. A Privacy Tort in Australia?
A common law tort for invasion of privacy is not an adequate avenue for protecting privacy
in Australia. Statute is preferred over common law development. Minister for Privacy and
Freedom of Information, Brendan O’Connor, announced in July 2011 that the government
supports a statutory right to sue for serious privacy invasions, ‘rather than letting the system
of privacy regulation evolve in an ad-hoc way through court decisions.’126 Simply plugging
the gaps in Australian privacy law by extending existing common law causes of action is not
preferred.127
Furthermore, the Courts are unwilling to allow such a development. For sixty years,
Australian Courts rejected the proposition that there was a tortious action for invasion of
privacy.128 In 2001, the High Court in Lenah held that the authority in Victoria Park
Racing129 did not stand in the way of developing a tort for invasion of privacy, therefore
extending an invitation130 to the common law to create the action. However, no Court has yet
taken this bold step.131 The District Court of Queensland and Victorian County Court
represent some of the only Courts to hold that such a step is a logical and desirable one to
take.132 Yet, in the latter Court, the decision was appealed and eventually settled, therefore
providing no definitive precedent.133 Other Courts continue to reject tortious claims for
invasion of privacy.134
Murphy, Katharine, ‘Canberra to move on Privacy Law’, The Age (online) July 21 2011 <http://www.theage.
com.au/national/canberra-to-move-on-privacy-law-20110720-1hp19.html#ixzz1T58aRPfx>.
127
New South Wales Law Reform Commission, Report No 120, above n 2, 19 [4.11].
128
Victoria Park Racing and Recreation Grounds Company Limited v Taylor (1937) 58 CLR 479.
129
Victoria Park Racing and Recreation Grounds Company Limited v Taylor (1937) 58 CLR 479, 496.
130
Amanda Stickley, ‘Personal Privacy: Boldly Going Where No Australian Court Has Gone Before: Part I’
(2003) 24 Queensland Lawyer 72.
131
Grosse v Purvis [2003] QDC 151 (16 June 2003) (Skoien J).
132
Grosse v Purvis [2003] QDC 151 (16 June 2003) (Skoien J) [442].
133
Australian Broadcasting Commission v Jane Doe [2007] VCC 281.
134
See, eg, Giller v Procopets [2004] VSC 113; Kalaba v Commonwealth of Australia [2004] FCA 763; Milne v
Haynes [2005] NSWSC 1107; Moore-Mcquillan v Work Cover Corporation SA [2007] SASC 55;
126
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The Lenah High Court had the opportunity to create a tort for invasion of privacy. However,
given this chance, it refused recognition, therefore failing ‘on all counts’135 to protect privacy
generally. The reluctance of the common law to find a cause of action for invasion of privacy
therefore exemplifies why the common law is inadequate to protect privacy in any concrete
and measurable way.
2.3.
Equity: the new fusion fallacy
2.3.1. The Case of the United Kingdom
Like Australia, the United Kingdom ‘knows no common law tort of invasion of privacy’.136
Furthermore, previous attempts at legislative reform in the UK failed at the first hurdle.137
However, without a general or ‘freestanding’ right to privacy, the UK’s equitable action for
breach of confidence138 evolved instead, representing a rights-based approach to privacy
protection.139 This was driven partly by the heavy hand of international privacy obligations
contained in Article 8 of the ECHR,140 which was ratified to some extent in the Human
Rights Act 1998 (UK).141 Significantly, however, the Act also upholds the right to freedom of
expression,142 which is manifested within Article 10 of the ECHR.143 Both rights are
135
New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper 1, above n 98, 55
[2.80].
136
OBG v Allan; Douglas v Hello! Ltd [2007] 2 WLR 920, [272]; see, eg, in Australia, Victoria Park Racing
and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 and the decline of the High Court in Lenah to
create a tort for invasion of privacy.
137
See, eg, Right of Privacy Bill 1961 (UK), Right of Privacy Bill 1967 (UK), Right of Privacy Bill 1969 (UK),
Right of Privacy Bill 1987 (UK), Right of Privacy Bill 1989 (UK).
138
Which traditionally is comprised of the elements from Coco v AN Clark (Engineers) Ltd [1969] RPC 41,
which require the information to be confidential, imparted in circumstances where there is an obligation of
confidence, and the unauthorised use of that information is detrimental.
139
Lindsay, above n 21, 4.
140
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4
November 1950, 213 UNTS 221 (entered into force 3 September 1953) Article 8.
141
Human Rights Act 1998 (UK) ss2, 6.
142
Human Rights Act 1998 (UK) s12.
143
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4
November 1950, 213 UNTS 221 (entered into force 3 September 1953) Article 10.
P a g e | 32
considered to be prima facie equal and are weighed against each other by the courts using a
proportionality test.144
However, such an extension within the traditional interpretation of the equitable cause of
action represented an attempt to fit a square peg in a round hole. The second element for
breach of confidence – that the information was imparted in circumstances giving rise to an
obligation of confidence145 – finds no solace in privacy protection. This is because many
instances of privacy violation occur where there is no pre-existing relationship of confidence.
Media organisations, for example, do not have fiduciary duties to ordinary members of the
public. The obligation of confidence would have to arise once the defendant has unlawfully
or surreptitiously acquired the information that he or she should have known was ‘not free to
use’,146 which is counter-intuitive and would represent a significant leap for Courts of Equity
to make.
2.3.2. Extending breach of confidence in Australia?
The idea that the equitable action for breach of confidence can protect privacy interests in
Australia is not new.147 Rivette argues that the case of Giller v Procopets (2008) 40 FamLR
378 gives breach of confidence the ‘teeth to respond to invasions of privacy arising from the
non-consensual disclosure of personal information’.148 Read with Lenah, Rivette argues that
there may be an actionable breach of confidence in the case of a secretly-obtained photograph
or piece of information by the media, where that material is considered private if its
144
Ash v McKennitt [2007] 3 WLR 194, [46].
Coco v AN Clark (Engineers) Ltd [1969] RPC 41.
146
Ash v McKennitt [2007] 3 WLR 194, [8].
147
There are a large number of academic articles on the overlap between breach of confidence and privacy,
which are beyond the scope of this paper.
148
Michael Rivette, ‘Litigating privacy cases in the wake of Giller v Procopets’ (2010) 15 Media and Arts Law
Review 283.
145
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disclosure would be highly offensive to a reasonable person of ordinary sensibilities.149
While at first blush, this approach may seem to adequately address the concern, such an
approach in reality is a toothless tiger for several reasons.
To begin with, confidentiality and privacy are ‘simply different concepts. While most
confidential acts and information could arguably be described as private, not all private
activity is necessarily confidential.’150 To reconcile the two would entail trying to fit a square
peg in a round hole.151 Plaintiffs would be left without redress.152 Breach of confidence is
traditionally used to protect information imparted under the fiduciary obligation of
confidence. Breach of confidence is not, under its current construction, suited to all
situations where one person invades the privacy of another, particularly when the parties
involved are strangers and do not hold obligations of confidence to one another. Only
intrusions of privacy which result in actual publication are actionable under the current test
for breach of confidence, no matter how ‘strong and understandable may be the feeling of
harassment of a person who is hounded by photographers’153 or the media. This would mean
that the plaintiff in Australian Broadcasting Commission v Jane Doe [2007] VCC 281 would
have an equitable action in breach of confidence, because she was identified on television as
a victim of rape.154 Conversely, the plaintiff in Grosse v Purvis [2003] QDC 151 would not,
because the privacy action related to stalking and other acts that were not publicised by the
149
Ibid, 289.
New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper 1, above n 98, 54
[2.80].
151
Johnston, Mark, ‘Should Australia force the square peg of privacy into the round hole of confidence or look
to a new tort?’ (2007) 12 Media and Arts Law Review 441.
152
New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper 1, above n 98, 56
[2.84].
153
R Toulson, ‘Freedom of Expression and Privacy’ (Paper presented at Association of Law Teachers Lord
Upjohn Lecture, London, 9 February 2007), 7; quoted in Australian Law Reform Commission, Report No 108,
above n 6, 2564.
154
In this case, the ABC had reported on a court case concerning the plaintiff’s husband. The television
broadcasts identified his name, the offence of rape within marriage which he was convicted with, the suburb in
which they lived, and the victim’s name (which included her maiden name, which she reverted to after the rape).
The plaintiff took action against the Australian Broadcasting Corporation (ABC) for, amongst other claims,
breach of privacy and breach of confidence, and was successful in obtaining compensation.
150
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media.155 This approach would thereby create inconsistency if it were applied in Australia,
particularly given the reticence of the courts toward providing equitable privacy protection at
the present time.
Additionally, confidentiality actions are creatures of equity. Equitable protection of privacy
would therefore only attach to information that ought not to be disclosed, without any real
regard for the intrinsic value of the information itself.156 Furthermore, not all privacy actions
are information-related. Interference with personal bodily privacy157 would not be covered
under an extension of the breach of confidence doctrine.
Finally, mere emotional distress will often be the only damage for which a plaintiff claims as
a result of an invasion of privacy. However, there appears to be no Australian authority to
support equitable damages or equitable compensation to be awarded for mental distress
alone. While Neave and Ashley JJA relied upon English authority to support a finding of
equitable compensation in Giller v Procopets,158 this is an approach that is simply not
applicable in Australia.159 Moreover, Australia does not have a Bill of Rights statute upon
which to base that action.
Extending the breach of confidence action to cover privacy cases is inappropriate, and
stretches the limits such that the core of both actions is compromised. The two actions
should be separate.
155
In this case, the plaintiff claimed breach of privacy, amongst other claims, for acts of stalking, intimidation,
abusive phone calls and other acts by the defendant.
156
New South Wales Law Reform Commission, Report No 120, above n 2, 55 [2.82].
157
See, eg, Wainwright v Home Office [2004] 2 AC 406.
158
Giller v Procopets (2008) 40 Fam LR 378.
159
Michael Tilbury, ‘Remedies for breach of confidence in privacy contexts’ (2010) 15 Media and Arts Law
Review 290, 291.
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2.4.
A Statutory Solution
A small number of jurisdictions have created statutory protection for privacy. Australia is
therefore in a unique position to draw upon the benefits of the jurisdictions with successful
legislation, and also to learn from and avoid failures of other jurisdictions. For example,
some provinces of Canada and some American states provide general statutory protection for
privacy; however the laws are not uniform across the countries. Ireland160 and Hong Kong161
have considered passing legislation which create causes of action for invasions of privacy,
however both countries’ respective parliaments have not yet passed any laws. Appendix
Table Two: ‘Elements, Defences and Remedies in Privacy Statutes from Overseas
Jurisdictions’ compares these jurisdictions.162 Consideration of these approaches is essential
to creating the most successful proposal in the Australian context.
2.4.1. The Case of North America
The Canadian Provinces of Saskatchewan,163 Manitoba,164 Newfoundland165 and British
Columbia166 each passed privacy legislation creating statutory torts for violation of privacy.
All four jurisdictions create a tort, actionable without proof of damage, for a person who
wilfully and without claim of right, violates the plaintiff’s privacy without their consent or
lawful authority.167
160
161
Ireland Working Group on Privacy, Report of Working Group on Privacy (2006).
Hong Kong Law Reform Commission, Civil Liability for Invasion of Privacy (2004) 139 [Recommendation
2].
162
See page 81.
Privacy Act 1978 RSS (Saskatchewan) c P-24.
164
Privacy Act 1987 CCSM (Manitoba).
165
Privacy Act 1990 RSNL (Newfoundland and Labrador).
166
Privacy Act 1996 RSBC (British Columbia).
167
British Columbia also creates a tort for unauthorised use of name or portrait.
163
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Manitoba utilises a higher threshold for the elements of the action by requiring the violation
to be substantial, unreasonable and without a claim of right.168 However, even in the other
three Canadian jurisdictions maintaining lower thresholds, there have been few actions for
violation of privacy, and plaintiffs have successfully instituted such actions in only 25% of
the cases.169 Furthermore, nominal damages and exorbitant litigation costs have meant that
‘the tort of privacy has achieved little’170 in terms of social utility.
Each province, except for British Columbia, provides a non-exhaustive list of examples of the
types of violations of privacy which would come under the tort, including auditory
surveillance, listening to conversations, using a person’s name or likeness in advertising, and
use of personal documents.
Each province lists defences171 for the tort, which include consent, lawful right, public
interest, exercising duties of peace officers, reasonable news gathering172 and defamation
privileges. Each province, except for British Columbia, also provides a range of remedies,
including damages, injunctions, account of profits and destruction of the offending material.
There is limited statutory protection of privacy in the United States, however this is also
piecemeal. Some states simply recognise or alter the common law torts through statute. 173
The California Civil Code creates a range of statutory torts. For example, the tort of entering
land with the intent to capture images, sound recordings or physical impressions of the
plaintiff engaging in a personal or familial activity, which is proved in situations where
physical invasion occurs in a manner that is offensive to a reasonable person.174 The
168
Privacy Act 1987 CCSM (Manitoba) s 2(1).
New South Wales Law Reform Commission, Consultation Paper 1, above n 98, 84 [3.49].
170
Chester, Murphy and Robb, above n 38, 359.
171
British Columbia uses the term ‘exception’ instead of ‘defence’.
172
Only in Saskatchewan.
173
See, eg, Code of Virginia §§ 8-650, c671; 765 Illinois Consolidated Statutes 1075/10 9; New York State
Consolidated Laws, Civil Rights §50.
174
California Civil Code 1998 §1708.8(a).
169
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Massachusetts General Law also provides that a person has ‘a right against unreasonable,
substantial or serious interference with his privacy. The superior court shall have jurisdiction
in equity to enforce such right and in connection therewith to award damages.’175 However,
like Australia, the United States has a piecemeal and patchy framework for protection of
privacy. Such an approach lacks consistency and uniformity – two factors that are highly
valued in any legal system. Australia can and should learn from the successes and failures in
overseas jurisdictions in order to formulate the best possible approach to privacy protection.
2.4.2. A Statutory Approach in Australia
This paper strongly endorses a statutory approach to the protection of privacy. The
reluctance of the common law to develop, and the inadequacy of equity to formulate the
action for invasion of privacy, provides the impetus for statutory reform within the privacy
law area. A statutory cause of action ‘avoids the problems inherent in attempting to fit all the
circumstances that may give rise to an invasion of privacy into a pre-existing cause of
action.’176 Moreover, a statutory scheme provides a more ‘flexible approach to defences and
remedies’,177 is not constrained by rules or assumptions of torts or equity, and allows for
explicit consideration of competing public interests.178 While the Canadian and United States
statutes provide some guidance as to the wording of legislation relating to invasions of
privacy, the fact that they are inconsistent nationwide means that the Australian approach
should be uniform and dependent on the unique Australian legal, social and political context.
The following two chapters will explore the Australian statutory reform options in detail.
175
Massachusetts General Laws, Part III Courts, Judicial Officers and Proceedings in Civil Cases, Title I Courts
and Judicial Officers, Chapter 214 Equity Jurisdiction, Section 1B.
176
Australian Law Reform Commission, Report No 108, above n 6, 2564 [74.116].
177
Ibid.
178
Ibid, vol 3, 2565 [74.117]-[74.118].
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3. PREVIOUS ATTEMPTS AT REFORM
The pattern is familiar. Private lives are made public spectacle by the tabloids. A general
sense of unease ensues. Politicians appear to fret. Judges lament the incapacity of the
common law to help. Committees are established. ‘Privacy’ legislation is proposed. Alarms
are sounded by the quality press about the onslaught against freedom of speech. Inertia
settles on politicians, reluctant to offend newspaper editors. The debate subsides until the
next series of sensationalist disclosures.179
The call for privacy reform in Australia is well established. Both the ALRC and NSWLRC
recently recommended the overhaul of the privacy law framework and the creation of a
statutory cause of action for invasions of privacy. The Victorian Law Reform Commission
also recommended privacy reform; however it proposed two narrow causes of action;180 one
related to misuse of private information181 and the other related to intrusion upon seclusion.182
This paper focuses on the federal and NSW proposals.
In 2008 and 2009, the ALRC and NSWLRC worked together with the common aim of
creating a statutory cause of action for invasions of privacy, to be introduced under a uniform
legislative framework. The NSWLRC took primary responsibility of formulating the
proposals.183 Nonetheless, there are some differences in approach between the federal and
State Commissions, and these are illustrated in Appendix Table 3: ‘Comparison of
179
Wacks, above n 39, 1.
Victorian Law Reform Commission, Surveillance in Public Places, Report No 18 (2010) 149
[Recommendation 22].
181
Ibid, 150 [Recommendation 23].
182
Ibid, 151 [Recommendation 24].
183
Australian Law Reform Commission, Review of Australian Privacy Law, Discussion Paper 72 (2007) 26-28,
[Proposals 5-1 – 5-7].
180
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Recommendations for a Statutory Cause of Action in Australia’.184 Ultimately, both
recommended change to Australian privacy law in the form of a statutory cause of action for
invasion of privacy. This chapter examines, compares and evaluates these
recommendations185 in light of recent developments.
3.1.
The Australian Law Reform Commission Report
The ALRC’s 2008 Report, For Your Information: Australian Privacy Law and Practice, was,
amongst numerous other aims,186 designed to create a statutory cause of action for serious
invasions of privacy. Chapter 74 of the Report contains 7 recommendations related to the
statutory cause of action.187
The ALRC recommended that the cause of action be contained in a separate federal statute.188
This aimed to reduce inconsistencies and confusion, particularly surrounding the Privacy Act
1988 (Cth) which already deals with information privacy. The ALRC recommended that all
other common law actions for invasion of privacy (if any) be abolished, in order to ensure the
consistency and primacy of the legislation.189 A new statute would also result in national
uniformity, as the statute would cover federal, state and territory jurisdictions. However, the
ALRC noted that it would be a matter for government to decide how best to achieve
consistency if the states and territories enacted mirror legislation.190
184
See page 86.
The proposals of the VLRC are not dealt with in detail in this paper.
186
There were 295 recommendations in the Report. For example, the ALRC sought to redraft the Privacy Act in
order to create Unified Privacy Principles that apply to public and private sector agencies.
187
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2535-2586.
188
Ibid, vol 3, 2583 [74.195].
189
Ibid, vol 3, 2586 [Recommendation 74-6].
190
Ibid, vol 3, 2582 [74.191].
185
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The ALRC took a conservative approach to the cause of action. The cause of action relates to
serious invasions of privacy,191 thereby importing a higher threshold for actionability than the
NSWLRC, which recommended a cause of action for invasions of privacy without the need
for the invasion to be serious.192 This was consciously intended by the ALRC to ensure that
privacy’s concomitant, the public interest in freedom of expression, was not unjustifiably
curtailed.193 The ALRC also recommended that the requisite mental element be limited to
intentional or reckless acts by the respondent.194 This means that accidental invasions are not
actionable under the statute, for example through photography or street art.195
The test to establish a serious invasion of privacy requires both a reasonable expectation of
privacy in all the circumstances, and the act must be ‘highly offensive to a reasonable person
of ordinary sensibilities’.196 Consent is also an essential element of the cause of action at this
stage of the inquiry.197 Notably, privacy is not defined by the ALRC.
The ALRC specified that the court take into account ‘whether the public interest in
maintaining the claimant’s privacy outweighs other matters of public interest’,198 including
matters of public concern and freedom of expression, when determining whether there has
been an invasion of privacy. This reflects the need to balance the public interest in
maintaining the claimant’s privacy with the public interest in freedom of expression, which is
a delicate process. By placing consideration of public interest at the forefront as an element
of the cause of action, and not as a defence to the action, the ALRC places the competing
191
Cf New South Wales Law Reform Commission, which recommended an action for invasion of privacy
without the need for a degree of seriousness: New South Wales Law Reform Commission, Report No 120,
above n 2, 8 [3.2].
192
See page 42 under the heading: 3.2 ‘New South Wales Law Reform Commission Report’.
193
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2568 [74.135].
194
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2585 [Recommendation 74-3(c)].
195
Ibid, vol 3, 2569 [74.136]. See also SBS, ‘Privacy’, Insight Program, 25 October 2011 (Cherine Fahd).
196
Ibid, vol 3, 2568 [74.133]-[74.135]; Australian Broadcasting Corporation v Lenah Game Meats (2001) 208
CLR 199 at [42] (Gleeson CJ).
197
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2575 [74.159].
198
Ibid, vol 3, 2584 [Recommendation 74-2].
P a g e | 41
rights on equal footing.199 This contrasts with the Canadian approach, which identifies
reasonable news gathering200 and the public interest and fair comment201 as defences to the
cause of action.
The ALRC recommended including a non-exhaustive list of the types of invasion that might
fall within the cause of action. These comprise of factual scenarios in which there has been
a) interference with home or family life; b) unauthorised surveillance; c) interference, misuse
or disclosure of an individual’s correspondence; and d) disclosure of sensitive facts about an
individual’s private life.202 This is a useful method to indicate legislative intention, and
assists courts with developing the scope of the action.203 This mirrors the Canadian statutory
approach, which also provides a non-exhaustive list of examples.204
The ALRC recommended that the cause of action be brought only by natural persons, 205 on
the basis that the ‘desire to protect privacy is founded on notions of individual autonomy,
freedom and dignity’,206 which are values that do not extend after death.
The ALRC recommended providing an exhaustive list of the possible defences to the action.
The list contains three main defences: acts or conduct incidental to the exercise of a lawful
right of defence or person or property, conduct required or authorised by law, and the
199
Ibid, vol 3, 2572 [74.147].
Privacy Act 1978 RSS (Saskatchewan) c P-24 s4(1)(e).
201
Privacy Act 1978 RSS (Saskatchewan) c P-24 s4(2); Privacy Act 1987 CCSM (Manitoba) s5(f)(i), (iii);
Privacy Act 1990 RSNL (Newfoundland and Labrador) s5(2)(a); Privacy Act 1996 RSBC (British Columbia)
s2(3)(a).
202
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2584 [Recommendation 74-1].
203
Ibid, vol 3, 2565 [74.119].
204
Privacy Act 1978 RSS (Saskatchewan) c P-24 s3; Privacy Act 1987 CCSM (Manitoba) s3; Privacy Act 1990
RSNL (Newfoundland and Labrador) s4.
205
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2585 [Recommendation 74-3(a)].
206
Ibid, vol 3, 2576 [74.160].
200
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publicised information was privileged under the law of defamation.207 The ALRC took a
restrictive approach to defences, choosing not to include defences such as consent, rebutting
an untruth or information already being in the public domain. The defences are unnecessary
because the public interest and consent are both addressed in the elements of the cause of
action.208
The ALRC recommended that a Court be empowered to choose the most appropriate remedy
to the factual circumstances before it, free from jurisdictional constraints.209 The proposed
legislation provides a non-exhaustive list of remedies. These include, but are not limited to,
damages (including aggravated but not exemplary damages), account of profits, injunctions,
apology orders, correction orders, destruction orders, and declarations (for example a
declaration stating that an invasion of privacy has occurred).210 The ALRC further
recommended that the cause of action be actionable without proof of damage.211 This
enables individuals to claim damages for humiliation, insult212 and emotional distress they
have suffered as a result of invasion of their privacy.213
Finally, the ALRC recommended that the Office of the Privacy Commissioner provide
information to the public concerning the cause of action,214 so that the public may be
informed of their rights and responsibilities under the statute.
207
Ibid, vol 3, 2585 [Recommendation 74-4].
Ibid, vol 3, 2578 [74.174].
209
Ibid, vol 3, 2579 [74.176].
210
Ibid, vol 3, 2585 [Recommendation 74-5].
211
Ibid, vol 3, 2585 [Recommendation 74-3(b)].
212
Ibid, vol 3, 2577 [74.167].
213
See also Privacy Act 1978 RSS (Saskatchewan) c P-24 s2; Privacy Act 1987 CCSM (Manitoba) s2(2);
Privacy Act 1990 RSNL (Newfoundland and Labrador) s3(1); Privacy Act 1996 RSBC (British Columbia)
s1(1), which provide the statutory tort is actionable without proof of damage.
214
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2586 [Recommendation 74-7].
208
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3.2.
The New South Wales Law Reform Commission Report
In 2009, the NSWLRC released its Report, Invasion of Privacy. The Report was solely
dedicated to formulating a cause of action for invasions of privacy, unlike the ALRC Report
which made 288 recommendations that were unrelated to the cause of action. The appendix
to the NSWLRC Report contained a draft of the wording of the proposed legislation, called
the Civil Liability Amendment (Privacy) Bill 2009,215 expressed as a Schedule to the Civil
Liability Act 2002 (NSW). This differs to the ALRC’s proposal, which recommended a
separate statute.
Significantly, the NSWLRC recommended an objects clause. The ALRC did not. The clause
recognises the importance of protecting privacy and the need to balance the right against
other interests. The clause also identifies the aims of the legislation, which are to create a
statutory cause of action and to provide remedies to individuals for invasions of privacy.216
The objects clause therefore provides clear legislative intent. This is essential given that the
cause of action is a new concept, and Courts may require assistance with interpreting and
applying the statute.
The NSWLRC expressed support for a lower threshold than the ALRC to establish a prima
facie case for a statutory cause of action. The action simply requires an invasion of privacy,
215
Civil Liability Amendment (Privacy) Bill 2009, cited in New South Wales Law Reform Commission, Report
No 120, above n 2, 84-92.
216
Civil Liability Amendment (Privacy) Bill 2009 s72, cited in New South Wales Law Reform Commission,
Report No 120, above n 2, 84.
P a g e | 44
therefore not restricting liability to serious invasions.217 This is a favourable approach given
the:
[A]bsence of any broad protection of privacy in civil law; the detrimental effects on privacy of an
increasingly invasive social environment; the desirability of giving effect to Australia’s
obligations under international law; the need for more general protection of privacy suggested by
consideration of the law of other jurisdictions… and the recent weakening of privacy protection in
defamation law.218
The test states that an individual’s privacy is invaded ‘if the conduct of another person
invaded the privacy that the individual was entitled to expect in all the circumstances having
regard to any relevant public interest,’219 which includes the interest of the public in being
informed of matters of public concern. This is a wider formulation than the ALRC’s
qualified test. However, its objective nature still restricts trivial and unduly sensitive220
claims from being brought before the courts.221 Like the ALRC, the NSWLRC recommends
that only natural persons can bring actions under the statute,222 and that consent will vitiate
actionability.223
The issue of balancing the right to privacy with the public interest is dealt with as an element
of the action, similar to the ALRC’s approach. Fundamental social values and norms, such as
free speech, safety, security, health and justice, are weighed up against the asserted interest in
217
New South Wales Law Reform Commission, Report No 120, above n 2, 8 [3.2].
Ibid, 11 [4.1].
219
Civil Liability Amendment (Privacy) Bill 2009 s74(2), cited in New South Wales Law Reform Commission,
Report No 120, above n 2, 85.
220
Campbell v MGN Ltd [2004] 2 AC 457 at [94] (Lord Hope).
221
New South Wales Law Reform Commission, Report No 120, above n 2, 27 [5.9].
222
Ibid, 71 [10.1].
223
Ibid, 46 [5.46]; and see Civil Liability Amendment (Privacy) Bill 2009 s74(4) at page 86 of the Report.
218
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privacy in order to determine which is to be preferred in the circumstances.224 At the same
time, the NSWLRC acknowledges that those interests are not always at loggerheads. Indeed,
the values that underpin freedom of expression such as autonomy and liberty may also
underpin some privacy interests. Courts must therefore perform incisive and targeted
analysis with regard to the facts of the case.225 Importantly, competing interests are of equal
weight, with no interest necessarily trumping another one. The Courts must therefore engage
in exercises of proportionality.226
Like the ALRC, the NSWLRC did not attempt to define privacy, instead opting for a
statutory cause of action which identifies the ‘general conditions in which an invasion of
privacy is actionable’.227 However, the NSWLRC does not list the types of invasion of
privacy which might come under the statute,228 instead leaving this entirely up to the courts.
Despite this, the court is guided through eight matters which must be taken into account in
determining actionability: the nature of the subject matter; nature of the invasion; the
relationship between the parties; whether the claimant has a public profile and whether it
affects actionability; vulnerability; conduct before and after the invasion; the effect of the
invasion on health, welfare and emotional wellbeing; whether the conduct contravenes an
Australian law; and any other matter that the court considers relevant in the circumstances.229
This facilitates flexibility in the common law interpretation of the statute, and ensures that
each case turns upon its own merits.
The NSWLRC’s proposal neither specified the requisite mental element for the action, nor
specified the proof of damage required. The ALRC’s proposal was clear on these points.
224
New South Wales Law Reform Commission, Report No 120, above n 2, 31 [5.15].
Ibid, 21 [4.15].
226
Ibid, 33 [5.17].
227
Ibid, 6 [1.8].
228
However the initial Consultation Paper did recommend providing a non-exhaustive list of the types of
invasions of privacy, similar to the ALRC.
229
New South Wales Law Reform Commission, Report No 120, above n 2, 34-46; and see Civil Liability
Amendment (Privacy) Bill 2009 s74(3) at pages 85-86 of the Report.
225
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The NSWLRC argued that specification was not required because the cause of action is
statutory and not tortious.230 The same reasoning applies to the NSWLRC’s remedies
recommendation, proposing the term ‘compensation’ instead of damages because it reflects a
more statutory approach.231
The NSWLRC recommended very similar defences to the ALRC, but added two more.
Clause 75(1)(d) of the proposed legislation provides a defence where the defendant publishes
the matter as an agent or employee of a subordinate distributor, and the defendant ought not
to have known (but not through any negligence) that publication of that matter constituted an
invasion of privacy.232 Secondly, it is a defence under clause 75(1)(e) of the legislation that
the defendant had a corresponding duty to give and have the published information.233 This
defence mirrors the qualified privilege defence in defamation law and would cover the
situation where, for example, a defendant publishes, to a prospective employer, personal
information about the plaintiff, in a reference, that is relevant to the job.234 The NSWLRC
therefore takes a less restrictive approach to excusing actionability under the statute and
places more focus on defamation defences than the ALRC.
Clause 76 of the NSWLRC draft legislation lists a range of remedies available to a Court to
grant in the event of an invasion of privacy under the statute. The Court is also given
discretion to consider any other relief that would be necessary in the circumstances,235 which
the NSWLRC identifies as possibly including asset preservation orders, search orders and
230
New South Wales Law Reform Commission, Report No 120, above n 2, 50-51 [5.56]-[5.57].
Ibid, 49 [5.54].
232
Civil Liability Amendment (Privacy) Bill 2009 s75(1)(d); in New South Wales Law Reform Commission,
Report No 120, above n 2, 86-87.
233
Civil Liability Amendment (Privacy) Bill 2009 s75(1)(e); in New South Wales Law Reform Commission,
Report No 120, above n 2, 87.
234
New South Wales Law Reform Commission, Report No 120, above n 2, 55-56 [6.12].
235
Civil Liability Amendment (Privacy) Bill 2009 s76(1)(e); in New South Wales Law Reform Commission,
Report No 120, above n 2, 88.
231
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variation of contract.236 The remedies are largely parallel to the ALRC recommendations,237
although the NSWLRC prefers prohibitory orders over injunctions, because of the statutory
nature of the cause of action.238 There is also a significant monetary restriction under the
NSWLRC Report which is absent in the ALRC’s proposal. The NSWLRC recommends a
$150,000 cap on compensation for non-economic loss.239
While the ALRC is silent on the limitation period for the action, the NSWLRC’s proposal
specifies a one year limitation period, accruing from the date of the defendant’s conduct. 240
The period may be extended for up to three years if reasonable in the circumstances. 241
Unlike the ALRC, the NSWLRC does not recommend an education campaign.
3.3.
The Australian Government’s Response
The Australian Government has only embarked upon Stage One of its response to the
changes proposed by the ALRC, addressing 197 of the 295 recommendations made in the
ALRC’s Report.242 However, Stage One did not include the recommendations surrounding
the statutory cause of action that are under consideration in this paper. The Government
decided to postpone addressing those particular recommendations until the Second Stage
236
New South Wales Law Reform Commission, Report No 120, above n 2, 58 [7.7].
Civil Liability Amendment (Privacy) Bill 2009 s76; in New South Wales Law Reform Commission, Report
No 120, above n 2, 87-88.
238
New South Wales Law Reform Commission, Report No 120, above n 2, 63 [7.17].
239
Civil Liability Amendment (Privacy) Bill 2009 s77; in New South Wales Law Reform Commission, Report
No 120, above n 2, 88; and see New South Wales Law Reform Commission, Report No 120, above n 2, 61-62
[7.13].
240
Amendment of Limitation Act 1969 (Cth) s14C; in New South Wales Law Reform Commission, Report No
120, above n 2, 91.
241
Amendment of Limitation Act 1969 (Cth) s56E; in New South Wales Law Reform Commission, Report No
120, above n 2, 91.
242
Commonwealth, Australian Government First Stage Response to the Australian Law Reform Commission
Report 108 For Your Information: Australian Privacy Law and Practice, Cabinet, October 2009, 5 (Joe
Ludwig).
237
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Response due to the ‘complexity and sensitivity’243 of the proposals to particular interest
groups in Australian society. This is also so that the foundations of privacy reform could be
laid down first.
Despite this delay, an Issues Paper released in September 2011 has called for submissions
and comments from the Australian public244 on the elements, defences and remedies of the
proposed cause of action.245 This provides renewed support for the statutory cause of action
to be enacted in Stage Two of the Government Response.
243
Ibid, 14.
The author has submitted this dissertation for consideration by the Department of Prime Minister and Cabinet,
following the release of the Issues Paper.
245
Commonwealth, above n 43, 51.
244
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4. REFORM PROPOSALS: THE INVASION OF PRIVACY ACT
2011 (CTH)
It is most surprising that the Australian courts have yet to develop common law or equitable
principles for breach of privacy in Australia. Australia is becoming increasingly out of step
with other common law jurisdictions in this regard. It may well be that the courts would be
amenable to such a development, should the right case come before them. In the absence of
common law or equitable protection, there is good justification for the development of
legislation to fill the void.246
Disappointingly, progress in the privacy law area tends to fall idle to media pressure and
political inertia. This is due in part to the eagerness of politicians247 to continue good
relations with the papers that portray them so as to avoid the enmity of the two main players
in the Australian press – Fairfax and Murdoch. This is particularly pertinent because the
Murdoch press controls 68% of capital city and national newsprint in Australia.248 In 2011,
Australia faces new challenges. Potential phone-hacking and the explosion of social network
use in Australia now threaten the value of privacy further. This has led to a gap in the
246
Centre for Law and Genetics, PR 127 to Australian Law Reform Commission, For Your Information:
Australian Privacy Law and Practice, 16 January 2001.
247
There are many sex scandals involving politicians that are featured heavily in the media, for example NSW
Transport Minister David Campbell using his ministerial car to visit gay sex clubs while he was married with
children [see McDonald, Timothy, ‘Campbell sex scandal sparks privacy debate’, ABC News (online), 22 May
2010 <http://www.abc.net.au/news/2010-05-21/campbell-sex-scandal-sparks-privacy-debate/836580>]. Another
example which occurred this year is Federal Member for Labor, Craig Thompson, who has been accused of
using a union credit card to pay for prostitutes [see Steve Lewis et al, ‘Craig Thompson scandal deepens with
allegations of a $70,000 spending spree on a union credit card’, Daily Telegraph (online), 22 August 2011
<http://www.dailytelegraph.com.au/news/craig-thomson-scandal-deepends-with-allegations-of-a-70000spending-spree-on-a-union-credit-card/story-e6freuy9-1226119221232>].
248
Kim Jackson, Media Ownership Regulation in Australia, (19 October 2011) Parliamentary Library
<http://www.aph.gov.au/library/intguide/sp/media_regulations.htm>.
P a g e | 50
literature. While the previous Law Reform Commission Reports form the academic literature
upon which this paper is based and canvass the steps to be taken to formulate the cause of
action, the emerging threats and developments in contemporary Australian society require
further analysis and review in order to adapt the cause of action to the climate in 2011 and
beyond.
Reform to the privacy area requires a back to basics approach.249 This involves creating a
new cause of action from the ground up, without recourse to the existing plethora of laws that
might incidentally protect privacy or those which could be extended to cover privacy in a
limited way.
4.1.
New Federal Statute
As discussed in Chapter Two, common law and equitable solutions are not appropriate ways
to tackle the issue of privacy in Australia. This paper strongly recommends creating new
federal legislation. A new statute would reduce public confusion and would avoid the
incidental and patchy protection currently provided by a range of laws and forms of law, as
exemplified in Appendix Table 1. A name such as the Invasion of Privacy Act 2011 (Cth)250
would communicate the legislation’s purpose effectively, and would also differentiate it from
the Privacy Act 1988 (Cth).
4.2.
249
Objects Clause
Doyle and Bagaric, above n 5, 178.
The author acknowledges that an Invasion of Privacy Act 1971 (Qld) is still in force in the State of
Queensland.
250
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Australian privacy laws currently lack coherence, consistency and an overarching rationale.
A core rationale that sets out the reasons why the legislation is in force and how it will
achieve those goals should therefore be included in the objects clause of the proposed
legislation. ‘This involves a consideration of the justification for the right to privacy and
what we as a community seek to achieve by giving legal recognition and protection to such a
right’.251
The core rationale of the legislation proposed in this paper is to protect the privacy of
individuals, and recognise that privacy protection is important in modern society. Doyle and
Bagaric suggest that privacy protection creates a supportive context for the development of
individual autonomy, which plays an essential role in the pursuit of happiness.252 The authors
argue that individuals ought to be protected where decisions are made on the basis of
information about them without any opportunity to comment or respond to the information.253
They also argue that individuals should be able to enjoy situations of solitude and control the
circumstances in which they are observed. For example, these instances would include
privacy inside the home, and particularly when showering, going to the toilet, and engaging
in sex.254 This paper supports the value of individual autonomy as a core rationale for the
protection of privacy. The need for privacy to be weighed against the public interest should
also be identified in the objects clause. 255
The objects clause should also explain how it will achieve individual autonomy and a balance
between the right to privacy and the public interest. The clause should clearly state that the
legislation intends to create a statutory cause of action for invasion of privacy and provide
251
Doyle and Bagaric, above n 5, 178.
Ibid, 179.
253
Ibid.
254
Ibid, 180.
255
Civil Liability Amendment (Privacy) Bill 2009 s72; cited in New South Wales Law Reform Commission,
Report No 120, above n 2, 84.
252
P a g e | 52
remedies to individuals whose privacy has been invaded.256 The clause should also explain
that the legislation intends to educate the public on their rights, responsibilities and liabilities
that are created under the statute, and inform the public of how to protect their own private
information and conduct. The education campaign is an important feature of the proposed
legislation. Furthermore, the objects clause should make it clear that the Act is to be enacted
uniformly throughout the states and territories.
By clearly stating the objectives and aims of the new legislation, the Courts and the
Australian public should be adequately informed about their rights and liabilities, which will
facilitate and enhance the effectiveness of the new framework.
RECOMMENDATION 1: OBJECTS CLAUSE
1 Object of Act
The objects of this Act are:
(a) To create national uniform legislation;
(b) To recognise that it is important to protect privacy in order to protect individual
autonomy and the right to the pursuit of happiness;
(c) To recognise that it is important to balance privacy against other interests,
including public interest, in appropriate circumstances;
(d) To create a statutory cause of action for the invasion of an individual’s privacy;
(e) To provide a number of different remedies to enable a court to redress any such
invasion of privacy; and
(f) To educate the public on their rights, responsibilities and liabilities under this
legislation and to inform the public on how they can protect their privacy and
prevent invasions of privacy.
4.3.
256
Definition
This is in line with the NSWLRC recommendations. See Civil Liability Amendment (Privacy) Bill 2009
s72(b), (c); cited in New South Wales Law Reform Commission, Report No 120, above n 2, 84.
P a g e | 53
This paper acknowledges the difficulties involved in arriving at a satisfactory definition of
privacy.257 Fluidity and adaptability should be essential features of the proposed legislation,
rather than searching for a fixed definition.
It is a ‘perennial fallacy that because something cannot be cut and dried or lightly weighed or
measured therefore it does not exist.’258 The concept of privacy is value-laden and
complex.259 The definition is culturally and historically relative,260 and must be adaptable to
modern developments and the value which privacy is given at the time. . Wacks argues that
‘[i]nstead of pursuing the false god of “privacy”, attention should be paid to identifying what
specific interests of the individual we think the law ought to protect’.261 Similarly, Doyle and
Bagaric believe that ‘[t]o define a term or concept is to set out the necessary and sufficient
conditions which demarcate the correct usage of the term or concept’.262 ‘Bearing in mind
the impossibility of arriving at a satisfactory definition’,263 and the ‘danger of gaps in privacy
protection’264 resulting from a fixed definition, the meaning of privacy under the proposed
legislation should be canvassed in a way which lists the types of invasions of privacy and the
conditions which require protection in the circumstances. This allows the judiciary to
develop the concept over time and take into account ‘the need of individuals for privacy in an
evolving technological environment’.265
See page 7 of this paper under the heading: 1.1. ‘Definitional Difficulties’.
Ridge v Baldwin [1964] AC 40.
259
Lindsay, above n 21, 8.
260
Ibid.
261
Wacks, above n 18, 10.
262
Carolyn Doyle and Mirko Bagaric, ‘The Right to Privacy and Corporations’ (2003) 31 Australian Business
Law Review 237, 238.
263
New South Wales Law Reform Commission, Report No. 120, above n 2, 3 [1.1].
264
New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper 1, above n 98, 57
[2.87].
265
Australian Law Reform Commission, Report No 108, above n 6, 19 [1(f)].
257
258
P a g e | 54
In line with the ALRC and NSWLRC recommendations, this paper proposes that there be no
definition per sé.266 Rather, there should be a workable classification of the types of
invasions of privacy that would be protected by the statute. This is similar to the ALRC’s
proposal.267
In addition, and as will be discussed in further detail later in this chapter,268 there should be
explicit reference to the ability for family members to take action for invasion of privacy of
their deceased relatives. This refers directly to the News of the World scandal where murder
victims’ voicemails were allegedly intercepted, which caused significant distress to family
members. Reference should also be made to invasions of privacy occurring online such as on
social networking sites, or through websites and email, in order to tackle the various online
privacy issues discussed in Chapter One. The other examples proposed in Recommendation
2 follow those of the ALRC. In addition, a catch-all provision ensures that other situations of
privacy invasion are not limited to the factual matrix contained in the section.
RECOMMENDATION 2: NON EXHAUSTIVE LIST OF TYPES OF PRIVACY INVASION
2 Types of Privacy Invasion under this Act
An invasion of privacy may occur in (but is not limited to) the following circumstances:
(a) Where there has been an interference with an individual’s home or family life, which
includes the situation where a deceased family member’s privacy has been invaded and
this causes distress or harm to the living relatives which the court deems to be an
invasion of privacy under the Act; or
(b) An individual has been subjected to unauthorised surveillance; or
(c) An individual’s correspondence or private written, oral or electronic communication
has been interfered with, misused or disclosed without the permission of such individual;
or
(d) Sensitive facts relating to an individual’s private life have been disclosed; or
266
See Australian Law Reform Commission, Report No 108 above n 6, vol 3, Chapter 74; and New South
AnReform
individual’s
activity
online,
which
but is not limited to social networking
Wales(e)
Law
Commission,
Report
No 120,
aboveincludes
n 2, 21 [4.16].
267
sites, is Law
interfered
misused
or disclosed
without
the3,individual’s
consent; 74-1].
Australian
Reform with,
Commission,
Report
No 108, above
n 6, vol
2584 [Recommendation
268
See page 54 under the heading: 4.3. ‘Entitlement’.
(f) Under any other circumstances which the court determines is an invasion of privacy.
P a g e | 55
4.4.
Entitlement
Who is entitled to bring an action under the statute is important, particularly in light of the
News of the World phone-hacking scandal. The proposed legislation therefore takes a slightly
different approach to the recommendations of the ALRC269 and NSWLRC in this regard.
This paper acknowledges that generally, deceased individuals have no privacy interests. 270
This paper agrees with the recommendation that natural persons are entitled to bring the
action, however extends this concept to where natural persons are directly affected by
invasion of a deceased individual’s privacy, and that the action also invades the privacy of the
natural person bringing the action, particularly in instances where there is a prior relationship,
whether familial or fiduciary, between the deceased and the individual seeking relief for
invasion of privacy.
Recommendation 2(a) therefore specifically states that relational actions are within the ambit
of privacy invasions envisaged by the statute. By extending the concept of home or familylife privacy invasions to include invasions relating to deceased individuals,271 the statute
responds directly to the fear created by News of the World’s alleged phone-hacking of 9/11
269
However the ALRC recommended that personal information relating to deceased individuals should be
protected for up to thirty years following death, in order to prevent mishandling of information after death, to
allow living relatives to access appropriate information and to prevent distress to the families: Australian Law
Reform Commission, above n 6, vol 1, 367 [8.44].
270
Paul Roth, ‘Privacy Proceedings and the Dead’ (2004) 11 Privacy Law and Policy Reporter 50.
271
In any respect, such an invasion would likely be captured under the provision in s2(a) contained in
Recommendation 2 above in regards to interference with home or family life, and would still need to meet the
threshold requirements of the cause of action.
P a g e | 56
victims and murder victims. Family members in similar situations should be able to seek
remedies and redress for the distress they suffered from media phone-hacking or any other
kind of invasion, as long as the invasion of privacy satisfies the elements of the cause of
action and is not subject to any defences or other limitations.
4.5.
General Cause of Action
4.5.1. Threshold
The cause of action under the new legislation should be general and statutory. It should not
be a tort, because tortious actions ‘do not generally require the courts to engage in an overt
balancing of relevant interests’,272 which would be required in the case of privacy invasions.
The cause of action should relate to invasions of privacy, which is in line with the NSWLRC
recommendation. The higher threshold test suggested by the ALRC, which requires the
conduct to be of sufficient seriousness and ‘highly offensive to a reasonable person of
ordinary sensibilities’273 is too high a bar for claimants to meet. This would undermine the
effect of the legislation in protecting privacy. Many claimants would be precluded from
taking action for invasions of their privacy, if they had a reasonable expectation of privacy
but it was not considered by the court as objectively serious or highly offensive enough to
warrant liability.274 For example, where an intimate conversation between husband and wife
following their involvement in a car accident involving drink-driving is filmed and broadcast
on television, they would have a reasonable expectation of privacy in those traumatic
circumstances. However, the conversation is not likely to be objectively serious or highly
272
New South Wales Law Reform Commission, Report No 120, above n 2, 50 [5.55].
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2584 [Recommendation 74-2].
274
See, eg, Andrews v TVNZ (Unreported, High Court of New Zealand, Allan J, 15 December 2006), where a
husband and wife took action against Television New Zealand for broadcasting an intimate conversation
between them following a motor accident. The claimants met the reasonable expectation of privacy
requirement, but failed to prove that the publication of the conversation was highly offensive to the reasonable
person of ordinary sensibilities.
273
P a g e | 57
offensive to the reasonable person.275 A high threshold of seriousness therefore does not give
adequate protection to individuals’ right to privacy.
Instead, as is made clear below, the test should balance the privacy interest against the other
interests in question on the particular facts of the case, and take into account a range of
factors to assist the court in making a determination.
4.5.2. Test
The test for the statutory cause of action should be flexible, adaptable, reasonably accessible
to individuals, and fair to other competing interests, which is likely to include the interest of
Australian media organisations in delivering news. Most importantly, the test should be
applied by the courts through an intense focus on the facts,276 and should assist in developing
social norms and expectations of privacy in modern society.277
The public interest and freedom of speech issue is a difficult one to reconcile statutorily. A
traditional view is that there will ‘always be a clash of rights, which must be resolved either
in favour of the privacy right or of the right to freedom of speech’.278 Privacy is deemed to
be the arch-nemesis to public interest, the right to know and freedom of expression. Law
reform submissions, primarily from media organisations, urged the freedom of speech right to
275
This example is based on the facts of Andrews v TVNZ (Unreported, High Court of New Zealand, Allan J, 15
December 2006).
276
Re S (a child) [2005] 1 AC 593 at [17] (Lord Steyn).
277
New South Wales Law Reform Commission, Report No 120, above n 2, 25 [5.5].
278
Eric Barendt, ‘Privacy and freedom of speech’ in Andrew T Kenyon and Megan Richardson (eds), New
Dimensions in Privacy Law: International and Comparative Perspectives (Cambridge University Press, 2006)
11.
P a g e | 58
be a concomitant279 to the right to privacy, given that Australia does not have a constitutional
or statutory right to freedom of speech or freedom of the press, even though Australian
Constitutional law already implies a right to freedom of political communication.280 There is
currently limited protection for privacy under Australian law. The way that privacy and
freedom of expression should interact is therefore left uncertain under the current legal
framework.
The notion of privacy, and its conceptual rivalry with freedom of expression, does not occur
in a vacuum. Society’s attitudes towards the correct balance will change according to
expectations281 relating to technology, artistic tastes, the commercial environment and
demographic changes. The key to a contextual and workable test is therefore adaptability and
proportionality. Courts should be able to apply a sophisticated balancing test to the specific
facts of the case. The proposed legislation should therefore be specific about how to balance
these competing rights.
Interestingly, Barendt argues that in limited cases, the two rights will not be in conflict. He
cites a pertinent example. The right to privacy and the right to free speech would both be
violated if there was interception of electronic or social communications between individuals
or a small group on the internet.282 However, this creates complexity for reform. For
example, if a claimant’s Facebook profile is set to private, but a Facebook friend of the
claimant publishes the information contained in the claimant’s status, should that information
be protected as private information? The explosion of social media has posed difficult
questions relating to defining the realm of what is private and what is public.
279
Australian Press Council, Submission PR 411 to Australian Law Reform Commission, For Your
Information: Australian Privacy Law and Practice, 7 December 2007.
280
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
281
Australian Law Reform Commission, For Your Information, Report No 108 (2008) vol 3, 2572 [74.146].
282
Barendt, above n 278, 12-16.
P a g e | 59
Furthermore, the blurring and shifting of the line between public and private life necessitates
a flexible approach. There is no expectation of privacy in public places generally, such as
public transport, shopping centres, bars and restaurants. However, cultural norms exist which
require privacy in public toilets, change rooms and hotel rooms, despite the ‘absence of a
right to exclusive possession or control of [the] immediate surroundings’.283 On the one
hand, if a line is not drawn between the public and private spheres of life, then ‘there will be
virtually no aspect of [a person’s] life which cannot be characterised as private’.284 On the
other hand, regard should be given to the degree of privacy reasonably expected in the
circumstances of the particular case.285 A cause of action should not draw such a line in
advance.
The legislation should assist Courts in reshaping those norms in order to reflect the current
challenges to individual privacy, particularly in the face of sly media behaviour and the
exponential increase of information flow on the internet.
As a result, the test recommended in this paper combines some elements of the ALRC and
NSWLRC recommendations. As drafted in Recommendation 3 below, the test combines a
subjective and objective element. The test requires the individual to have a reasonable
expectation of privacy in the circumstances, but that privacy interest is considered in light of,
and on balance with the relevant public interests, which are presumed to start from an equal
footing. This paper initially considered placing the public interest consideration as a defence
instead of an element of the test, which is the approach used in Canada.286 However, the
former option fails to recognise the value of open justice, accountability and free speech.
However, there should be a clear demarcation between public interest and public curiosity. A
283
Doyle and Bagaric, above n 5, 180.
Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, [14].
285
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2566 [74.124].
286
Privacy Act 1978 RSS (Saskatchewan) c P-24; Privacy Act 1987 CCSM (Manitoba); Privacy Act 1990
RSNL (Newfoundland and Labrador); Privacy Act 1996 RSBC (British Columbia).
284
P a g e | 60
fair balancing process would ensure that interest groups on either side of the fence could have
their say. The test also explicitly provides that the cause of action is actionable without proof
of damage, which is important in the privacy context given that most actions will involve
emotional and/or mental distress, as opposed to economic loss or physical damage.
4.5.3. Mental Element
This paper recommends not specifying the mental element. While the ALRC recommended
that the cause of action only apply to intentional and reckless acts, the NSWLRC did not find
it necessary to lay down an absolute rule,287 as the cause of action is not a tort and does not
import a requirement for a particular mental element. By leaving mental element out of the
equation, courts should still be able to effectively determine liability by applying the
threshold test to the particular facts at hand. This way, accidental invasions of privacy may
still be actionable under the statute, if they occur in the appropriate circumstances.
RECOMMENDATION 3: TEST FOR STATUTORY CAUSE OF ACTION
3 Invasion of Privacy Actionable
(1) An individual (the claimant) has a cause of action against a person under this Act
if that person’s conduct invades the individual’s privacy.
(2) An individual’s privacy is invaded for the purpose of this Act if:
(a) the conduct of another person invaded the privacy that the individual was
reasonably entitled to expect in all of the circumstances, and
(b) the individual’s privacy interest, when considered on balance, outweighs any
relevant public interest in the circumstances of the case.
(3) To avoid doubt, privacy interests and public interests are to be considered from an
equal standing point.
287
(4)South
Invasion
privacy
this Act
is actionable
without
New
Walesof
Law
Reformunder
Commission,
Report
No 120, above
n 2, 50proof
[5.56].of
damage.
P a g e | 61
4.5.4. Factors to be Taken into Account
This paper recommends providing statutory guidance to courts, in order to assist them in
determining actionability and balancing the privacy interest with other competing interests.
In this way, this paper largely supports the approach of the NSWLRC. By directing the
attention of the court to matters such as the nature of the private act or information, nature of
the invasion, relationship between the parties and other relevant matters, the court is
encouraged to decide each case on the specific facts presented to them. Importantly, courts
are given wide discretion under the catch-all provision to consider any other relevant matter,
which further facilitates fact-specific decisions and development of comprehensive common
law interpretations.
RECOMMENDATION 4: FACTORS TO BE TAKEN INTO ACCOUNT
4 Factors to be Taken into Account
Without limiting the factors that a Court may take into account in determining whether
an invasion of privacy has occurred under section 3, the Court may take into account the
following factors:
(1)
(2)
(3)
(4)
(5)
(6)
The nature of the alleged private matter;
The nature of the conduct concerned;
The relationship between the claimant and the alleged wrongdoer;
The extent to which the claimant has a public profile;
The extent to which the claimant was in a position of vulnerability;
The conduct of the claimant and the alleged wrongdoer both before and after the
conduct concerned;
(7) Whether an apology has been made by the alleged wrongdoer or any other
attempt to make amends is made;
(8) The effect of the conduct on the health, welfare and emotional wellbeing of the
claimant and any other reasonably-affected individual;
(9) Whether the conduct concerned contravened a provision of an Australian statute;
(10)
Whether the conduct concerned was consented to, expressly or impliedly, by
the claimant but only to the extent of the consent given; and
P a g e | 62
4.5.5. Consent
Consent becomes complicated when applied to social networking and online privacy
invasions. For example, person X posts a status update on their Facebook profile, which is
set to private, complaining about their employer. Person Y, who is a Facebook friend of X,
prints the status and gives it to X’s employer, E, who terminates X’s employment and tells
other employers of the Facebook status via the company Twitter account, warning others not
to hire X. When does liability end?
If an individual such as X consents to some information sharing within a certain circle of
friends, which include Y, and the information goes beyond what was consented to, and others
such as E continue to spread that information, are both Y and E liable? Social networks
theory suggests that even if a large group of people (e.g. X’s Facebook friends) know the
P a g e | 63
private information and one person causes that information to leap the boundary, this is still a
privacy violation.288 Y would be liable in this case.
However, once information is on the internet, it would be very impractical to hold others
liable who simply spread the information. A line must be drawn, and this may mean that E
would not be liable in the above example. Notably, X is not precluded under the statute from
taking action against E, and X’s success would depend on the circumstances, particularly the
nature of the comment.289 X however would not be likely to satisfy the public interest
balancing test if he or she admitted to stealing money or equipment from the workplace,
where it would likely be in the public interest that the public, in particular other employers,
be informed of criminal behaviour. Nevertheless, this is where the education campaign will
assist. As discussed below, informing the public on the dangers of online information sharing
is an effective method in preventing these events from occurring.
Another problem with consent occurs in other situations such as newsgathering, where an
individual might consent to an interview with a particular media organisation. If the media
organisation goes beyond interviewing and begins trespassing, photographing and
surveillance operations on that individual, beyond the consent that was originally given, this
should be actionable under the statute, despite the original consent being given.
This paper recommends that consent be included as a factor to be taken into account in
determining actionability under the statute, under Recommendation 4(10) above, but only to
the extent that the consent, express or implied, was given to that particular conduct. Conduct
288
Solove, above n 7, 181.
Employment law may also assist in this example. See, eg, Fitzgerald v Smith t/a Escape Hair Design [2010]
FWA 735, where the employee was terminated due to a Facebook status she posted which related to her
Christmas bonus and holiday pay.
289
P a g e | 64
beyond this is potentially liable. Onus should be placed upon the claimant to disprove
consent.
4.5.6. Limitation Period
The limitation period should be fairly short so that individuals are encouraged to take prompt
action, but also subject to discretional extensions of time, so that leniency can be afforded in
appropriate circumstances. The limitation period put forward by the NSWLRC provides
guidance on this matter. This comprises a one year period from the date on which the
invasion of privacy occurred, plus a discretionary element which the court can use to extend
the period by up to three years.290 This is not satisfactory to claimants, as many invasions of
privacy may go unnoticed for a long period of time, and well after the damage is done. For
example, becoming aware of the sharing of personal information on the internet once it has
been spread,291 or phone-hacking by the media.
This proposal recommends that the date of accrual be the date that the claimant becomes
aware of the circumstances giving rise to the cause of action. This reflects the nature and
type of privacy invasions that may be actionable under the statute, many of which have longterm consequences. The proposed wording would most likely be inserted into the Limitation
Act 1969 (Cth).
This paper acknowledges that the limitation period for protection of personal information of
deceased individuals under the current legislative framework varies across states, from five
290
Amendment of Limitation Act 1969 (Cth) ss14C, 56E; in New South Wales Law Reform Commission,
Report No 120, above n 2, 91.
291
For example spreading intimate sexual details on an internet blog: see Solove, above n 7, 52.
P a g e | 65
years in the Northern Territory, thirty years in NSW and Victoria, and unlimited in the
ACT.292 However, these limitation periods and associated laws that relate to personal
information and confidentiality of deceased individuals held by organisations should not be
affected293 by the limitation period for invasions of privacy under the proposed legislation in
this paper.
RECOMMENDATION 5: LIMITATION PERIOD
Limitation Period: Invasion of Privacy
(1) An action on a cause of action under section 3 of the Invasion of Privacy Act 2011
(Cth) is not maintainable if brought after the period of one year from the date on
which the cause of action accrues.
(2) A cause of action accrues when the claimant becomes aware of the circumstances
giving rise to the cause of action.
(3) A claimant may apply to the Court for an order extending the limitation period for
the cause of action.
(4) The Court must, if satisfied that it was not reasonable for the claimant to have
commenced an action in relation to the matter complained of within one year from
the date that the cause of action first accrued, extend the limitation period
mentioned in sub-section (1) but only by a period of up to three years running
from that date.
4.6.
Defences
This paper supports the recommendations of the ALRC and NSWLRC in relation to two
defences: the defence of lawful requirement and authorisation, and the defence of lawful
defence of person or property. Importantly, these defences allow governments to perform
statutory functions, and would not inhibit national security or law enforcement.294 This paper
however inserts the words ‘reasonably in the circumstances’ under both sub-sections so that
292
Australian Law Reform Commission, Report No 108, above n 6, vol 1, 359 [8.15].
Ibid, vol 1, 360 [8.18].
294
New South Wales Law Reform Commission, Report No 120, above n 2, 52 [6.3].
293
P a g e | 66
Courts may determine whether the defence is proved, having regard to the particular facts of
the case.
This paper disagrees with the ALRC and NSWLRC recommendations in relation to the
defamation defences and recommends a more restrictive approach to excusing liability. The
proposal put forward in this paper removes the need for the defamation defences to be spelt
out in the statute, given that such defences would already be covered under the lawful
requirement and authorisation provision.
However, Courts will need to take particular care where parliamentary privilege applies.
This year Senator Nick Xenophon utilised his parliamentary privilege to accuse a Catholic
chaplain of allegedly raping a young man 45 years ago.295 Despite the legality of the
accusation under s49 of the Australian Constitution and the Parliamentary Privileges Act
1987 (Cth), parliamentary privilege has the potential to invade individuals’ privacy,
particularly where the accusation is spread by the media and the matter has not been dealt
with in the criminal justice system. Publicity also creates difficulties for empanelling jurors
who might have pre-conceived ideas about the accused person.296 However, unless
parliamentary privilege is abolished, the actions of parliamentarians are not likely to be
actionable under the statute.
RECOMMENDATION 6: DEFENCES
5 Defences
It is a defence to an action under this Act for the invasion of an individual’s privacy if the
defendant proves any of the following:
(1) That the conduct of the defendant was required, authorised or otherwise enabled
reasonably in the circumstances:
By or
under a overstepped
State, Territory
oron
Commonwealth
law; orSydney Morning Herald
295
Phillip (a)
Coorey,
‘Xenophon
the mark
parliamentary privilege’,
(b)September
By an Australian
court or tribunal or a process of such a court or tribunal.
(online), 15
2011 <http://www.smh.com.au/opinion/politics/xenophon-overstepped-the-mark-onparliamentary-privilege-20110915-1kao0.html>.
296
ABC,
speech puts
privilege
in spotlight’,
Report,
September
2011
(2) ‘Xenophon
That the conduct
of parliamentary
the defendant
was done
for the7.30
purpose
of29lawfully
defending
or
(Professor Greg Craven) < http://www.abc.net.au/news/2011-09-14/the-row-over-the-naming-of-an-allegedprotecting a person or property reasonably in the circumstances, which includes the
rapist/2899618>.
prosecution or defending of civil or criminal proceedings.
P a g e | 67
4.7.
Remedies
‘Remedies do not exist in isolation from the substantive rights and obligations to which they
give effect’.297 Regard must therefore be given to the nature of privacy cases and the impact
that invasions of privacy have on potential claimants. For example, interlocutory injunctive
relief will be an essential remedy for those whose privacy interests have been invaded,
because once privacy is lost, it is irretrievable. An injunction would restrain unlawful
conduct as well as provide relief which cannot be adequately addressed in final relief after the
conduct has occurred.298 An apology should also be an option in the legislation, as it can be a
powerful and effective remedy in certain circumstances.
In addition to those proposed by the ALRC and NSWLRC, this paper recommends that
correction orders should be explicitly listed as a remedy and should be proportionate to the
original publication. ‘[The correction] should be placed in the same place, in the same type
face and on the same page as the original story… If it was significant enough to command
splashing across the front page… then any apology should receive the same importance’.299
This remedy may assist claimants to restore their sense of individual autonomy and may go
some way to repair emotional distress and other damages caused by the publication.
297
Tilbury, above n 159, 294.
Tilbury, above n 159, 294.
299
P Youngman, Submission PR 394 to Australian Law Reform Commission, For Your Information: Australian
Privacy Law and Practice, 7 December 2007.
298
P a g e | 68
This paper disagrees with the compensation cap recommended by the NSWLRC on actions
for emotional and mental distress alone. This paper proposes a compensation remedy without
monetary restriction, particularly because privacy invasions, by their nature, will often result
in emotional and mental distress. The appropriate level of compensation should be reached
by a Court on its own discretion and analysis according to the facts at hand and with regard to
social and legal norms operating at the time.
RECOMMENDATION 7: REMEDIES
6 Remedies
In an action under this Act for the invasion of an individual’s privacy, the court may (subject
to any jurisdictional limits of the court) grant any one or more of the following remedies,
whether on an interim or final basis, as the court considers appropriate:
(1) An order for the payment of compensation;
(2)
An order prohibiting the defendant from engaging in conduct (whether actual,
apprehended or threatened) that the court considers would invade the privacy of the
claimant;
(3)
An order declaring that the defendant’s conduct has invaded the privacy of the
claimant;
(4)
An order that the defendant deliver to the claimant any articles, documents or
other material, and all copies of them, concerning the claimant or belonging to the
claimant that:
(a) Are in the possession of the defendant or the defendant is able to retrieve; and
(b) Were obtained or made as a result of the invasion of the claimant’s privacy or
were published during the course of conduct giving rise to the invasion of privacy;
(5)
An order that the defendant apologise to the claimant for the conduct;
(6)
A correction order, which is proportionate to the original publication;
(7)
Such other relief as the court thinks appropriate in the circumstances.
4.8.
Education Campaign
Education should play an essential role in this reform. The ALRC recommended that the
Office of the Federal Privacy Commissioner should have a role in educating the public about
P a g e | 69
the recommended statutory cause of action.300 However, privacy education should pervade
the school system as well as in the wider community.
Personal information and photographs now find themselves uploaded within seconds and
immediately form part of the public domain via Facebook, MySpace and Twitter. Young
people in particular are unaware of the consequences of these actions and may find that their
‘private’ information is no longer private, which could have serious consequences in the
future.301 Widespread education campaigns should operate within the ideal that prevention is
better than a cure, particularly in relation to private information that is voluntarily, but
unknowingly, entered into the public arena via the online medium.
Rodrigues argues that social norms can often be more effective than legal rules at regulating
online behaviour.302 The power of individual reputation operates as a disincentive for people
to, for example, post derogatory comments on someone’s Facebook for fear of backlash from
the individual and/or his or her friends. An education programme, aimed at young people in
different stages of their development, should be integrated into school and university
curriculum in order to improve knowledge and wariness about the consequences of online
behaviour. However, it is not just online privacy norms that need to be changed. Society’s
acceptance of reality television shows such as Big Brother and Biggest Loser also indicate
that we are voyeurs of privacy intrusions as an acceptable norm, particularly for
entertainment. The legislation proposed in this paper should assist in shaping the ‘norms that
govern the circulation of information’,303 and the education campaign should facilitate the
creation of those norms from society’s expectations of privacy.304 If individuals are taught
from a young age about the importance of controlling self-exposure, particularly on the
300
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2586 [Recommendation 74-7].
See Chapter One generally for discussion of the privacy issues that arise online.
302
Rodrigues, above n 52, 238.
303
Solove, above n 7, 113.
304
Solove, above n 7, 167.
301
P a g e | 70
internet, then the desired outcome is a society which values and respects privacy, which
should manifest itself in fewer actions under the Invasion of Privacy Act.
However, it is not only members of the public who need to change the way they behave.
Companies like Facebook should be at the forefront of privacy innovation, despite their
seminal role in information sharing. When a new user joins Facebook, the default settings
should be private.305 Currently they are not. This means that complacent users may not think
to change their settings to ‘private’ and might inadvertently be subjecting themselves to
invasions of privacy. Changes to Facebook services have created public concern about
privacy in the past.306 For example, in 2006 Facebook created News Feeds, which alert users
of recent activity by other Friends on their Home Page. In September 2011, Facebook
announced the roll-out of the Timeline function, which provides users with a chronological
timeline of their status updates, employment, relationship status and photos.307 Creators of
technology and the media, should be at the forefront of responsible sharing of information.
Not only should the education campaign inform the public about the changes to the law, the
campaign should filter into the primary, secondary and tertiary education sectors as part of
online privacy and security awareness. Such an approach would enhance predictability in the
law – a fundamental tenet valued in most legal systems. The campaign should inform the
public, in particular young people, about the dangers of online behaviour and information
sharing via technology such as Facebook and mobile cameras. The campaign will also
inform the public of their right to privacy, and what they should do if their privacy is invaded.
RECOMMENDATION 8: EDUCATION CAMPAIGN
7 Education
The relevant government department shall create an education campaign relating to the
Solove, above n 7, 200-201.
following:
306
Solove, above n 7, 169.
305
307
Jill Duffy, 10 things you should know about Facebook Timeline (23 September 2011) PC Mag <http://www.
(1)
Informing the public of their rights, responsibilities and liabilities under this
pcmag.com/article2/0,2817,2393464,00.asp#fbid=ZuMPxUB4XV5>.
Act;
(2)
Educating young people in the primary, secondary and tertiary education
systems on a range of issues relating to protecting private information and other
private conduct, particularly online and through other technologies; and
P a g e | 71
4.9.
A Familiar Inertia
Radical reform such as the proposed legislation in this paper will undoubtedly be opposed.
The legislation effectively creates a human right – the right to privacy – because individuals
can now take action where that right is interfered with. Groups in society whose interest is in
opposition to privacy interests, such as the Australian media, will be strongly advocating
against the legislation. In the past, the media have already argued that a statutory cause of
action would threaten freedom of expression and freedom of the press.308
This is the point where inertia often settles upon Australian politicians, and the privacy
debate subsides again. 309 However, the pendulum must swing from ‘supreme, total power’310
currently held by the media, back to equilibrium where the law respects both the right to
privacy and the right to freedom of expression. The legislation will therefore need to strike
the right balance in order to pass through the House of Representatives and Senate
successfully.
However, there is a risk that the legislation is challenged in the High Court by an interested
party such as the media. This paper would argue that the Government has the Constitutional
308
New South Wales Law Reform Commission, Report No 120, above n 2, 9 [3.3].
Wacks, above n 39, 1.
310
The Honourable Michael Kirby, in Milanda Rout, ‘Kirby says both rights can co-exist’, The Australian
(online), 23 July 2011 <http://www. theaustralian.com.au/national-affairs/kirby-says-both-rights-can-coexist/story-fn59niix-1226100083272>.
309
P a g e | 72
power to enact the legislation under the external affairs power,311 because the legislation
intends to implement some of Australia’s obligations under international treaties such as the
ICCPR, which states that individuals have the right to privacy312 and the right to freedom of
expression.313 Alternatively, the Government could rely on other constitutional heads of
power as the basis for legislating on privacy.314 However, the real challenge lies at the
negotiation stage, where passionate advocates on both sides of the debate will argue the value
and utility of such reform. In the past, privacy reform has fallen at this hurdle.
However, the current framework is ineffective and inefficient. A comprehensive and wellthought out proposal, an effective education campaign and a strong government should
ensure that the privacy framework is not simply patched up, but is created from scratch
according to the fundamental value of individual autonomy. These features should ensure the
success and longevity of the legislation in Australia.
4.10. Future Application of the New Framework
‘Complete privacy does not exist in this world except in a desert.’315 The Act is not built on
such unrealistic goals or vacuum-like contexts. The success of the legislation for aggrieved
individuals will depend highly on the privacy invasion cases that come before the courts, the
long-term social impact of the education campaign and the willingness of organisations such
as the media to comply with their obligations under the Act.
311
Australian Law Reform Commission, Report No 108, above n 6, vol 1, 196 [3.20].
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, (entered into
force 13 March 1976) [1980] ATS 23, Article 17.
313
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, (entered into
force 13 March 1976) [1980] ATS 23, Article 19.
314
See, eg, Australian Constitution ss51(i), 51(xiii), 51(xiv), 51(xx).
315
Restatement (Second) of Torts §652D comment c; cited in NSWLRC Consultation Paper 1, above n 98, 102
[4.28].
312
P a g e | 73
The cost of litigating the action will also be indicative of the legislation’s accessibility and
success. The particular forum chosen by the parties will largely determine the costs of
litigating invasions of privacy. While the appropriate court will depend on the particular
circumstances of the case and the remedies sought, the ALRC acknowledges that district and
county courts will be the most commonly used due to the extent of their jurisdiction and
expertise on such matters, and importantly because of lower costs.316 The legislation should
be accessible to everyone, not just celebrities, politicians or people with public profiles. The
education campaign aimed at the wider community should not only inform the public of the
contents of the Act, but should also recommend which court(s) to use to mount an action.
The campaign should also recommend that claimants seek legal advice.
Ultimately, the future of privacy law and policy will depend on how the legislation is
interpreted and applied by the courts. By drafting a clear statute like the one proposed in this
paper, the common law interpretation of the new legislation should result in socially and
legally desirable outcomes that value and protect the privacy of individuals in Australia.
316
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2583 [74.197].
P a g e | 74
CONCLUSION
The recent News of the World phone-hacking scandal represents one of many challenges
facing the notion of privacy as both a social and legal construct. Such a scandal should be the
last straw for the Australian legal system, providing strong impetus for change and reform to
the currently unravelling patchwork of laws which, at best, provide incidental protection of
privacy in Australia. A statutory cause of action would ‘create a climate of restraint which
might stem some of the activities that led to the closure of News of the World.’317
If a statutory cause of action like the one proposed in this paper is implemented in Australia,
members of the public would have adequate redress for invasions of privacy where there was
a reasonable expectation of privacy, and there is no public interest outweighing the privacy
interest in the circumstances of the case. By ensuring that both interests begin from an equal
standing point, interest groups in society are assured that no interest is preferred over another,
and that each case will turn on its own merits. Careful compromise and proportionality is
essential to effective law-making.
The proposed legislation takes into account present-day challenges to privacy protection, for
example by listing examples of privacy invasions such as phone-hacking and sharing of
private information obtained surreptitiously from social networking sites, which this paper
argues are some of the most threatening weapons against privacy protection. Moreover, the
legislation is adaptable and flexible. The statute encourages judicial discretion and also
provides a list of factors that may be applied to the particular facts of the case in order to
determine actionability. The common law can therefore interpret the legislation according to
Victorian Law Reform Commission, ‘Victorian Law Reform: Keeping Private Lives Private’ (2011) 85(10)
Law Institute Journal 87.
317
P a g e | 75
the social norms and contextual features and developments of the time, therefore reviewing
and redefining the fluid concept of privacy as advancements in society and technology occur.
Importantly, this paper illustrates that there should be active dialogue between politicians,
Law Reform Commissions and interest groups in order to create the most desirable and
effective solution to what has now become one of contemporary society’s key reform issues.
The time is certainly ripe for statutory protection of privacy in Australia.
P a g e | 76
APPENDIX
Table One: Current Legal Protection of Privacy
LEGAL
METHOD
ASPECT OF
PRIVACY
Tort
Territorial
privacy or
right to
seclusion
Reputation
318
CAUSE OF
ACTION
INCIDENTAL
PROTECTION OF
PRIVACY IN A
MEDIA SETTING
Tort of
Preventing those who
trespass to land enter private property
for the purpose of
photographing, filming,
interviewing or
recording the occupant
or their activities,
without lawful
authority318
Private
Preventing harassment
nuisance
by constant
surveillance319
Defamation
EVALUATION
Limited to the
vicinity of private
premises
Does not give
protection against
casual observation,
filming or
recording outside
the property or
from the airspace
above it320
Prevents the publication The law of
of a statement
defamation
(including a photo)321
protects
that has the tendency to reputation, not
injure the person’s
privacy, and it
reputation
does not protect
information
privacy in fact,
because if the
information is true
it is not
defamatory.322
Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457, 465, cited in New South Wales Law
Reform Commission, above n 2, 42 [2.40]; and see Doyle and Bagaric, above n 5, 63.
319
Bernstein v Sky News Ltd [1978] QB 479; Raciti v Hughes (1995) 7 BPR 14,837.
320
Lord Bernstein v Skyviews and General Limited [1977] 2 All ER 902, 909, cited in cited in New South Wales
Law Reform Commission, above n 2, 42 [2.45].
321
Ettinghausen v Australian Consolidated Press Limited (1991) FLR 307.
322
Doyle and Bagaric, above n 5, 65.
P a g e | 77
Passing Off
Equity
323
Private facts
Intentional
infliction of
emotional
distress326
Information
privacy
Breach of
Confidence
Prevents appropriation
of the name, image or
likeness of a person,
e.g. in advertising324
Prevents conduct
calculated to cause
physical or emotional
damage to a person, e.g.
newspaper digging up
criminal record of a
person campaigning to
raise money for a heart
transplant327
Limited
application and
‘virtually useless’
in modern law.328
The ingredients of
the action would
be too difficult to
pin down and the
policy
justifications
insecure329
Protects information
Where there is no
(whether it be
prior relationship
commercial information of confidence, the
or otherwise) which is
information must
confidential or
be stolen in order
relatively secret, that is to prove breach of
imparted in
confidence.332 The
circumstances
action would not
importing an obligation protect
of confidence (or
information that is
wrongfully obtained private but has not
assuming the media had been obtained in
not entered into a prior circumstances
relationship of
which import an
confidence with the
obligation of
plaintiff) and that
confidence.333 In
information is used
Lenah Game
detrimentally against
Meats, Gleeson
330
the plaintiff, e.g.
CJ, Kirby and
photos taken of an
Callinan JJ (with
Defamation Act 1974 (NSW) s 15.
Pacific Dunlop v Hogan (1989) 23 FCR 553.
325
Doyle and Bagaric, above n 5, 68.
326
Wilkinson v Downton [1897] 2 QB 57.
327
Tucker v News Media Ownership Ltd [1986] 2 NZLR 716.
328
Doyle and Bagaric, above n 5, 69.
329
New South Wales Law Reform Commission, Report No 120, above n 2, 19 [4.12].
330
Coco v AN Clark (Engineers) Ltd. [1969] RPC 41.
324
However there is a
defence in NSW if
the imputation is
substantially true
and it related to a
matter of public
interest323
Only available to
individuals with a
public profile325
P a g e | 78
activity where it is
made clear that no
unauthorised
photography is to be
made331
Statute
Territorial
privacy or
right to
seclusion
Entering into
inclosed lands
without lawful
excuse or
consent of the
owner and
remain on
lands after
requested to
leave: Inclosed
Lands
Protection Act
1901 (NSW)
s4
Provides a criminal
offence where a
member of the media
enters onto private
property without lawful
excuse or consent, e.g.
to take photos.
Offences under
the Crimes Act
1900 (NSW)
Part 4 for
robbery, theft,
extortion,
larceny,
sabotage and
malicious
damage to
property.
Provides a criminal
offence where a
member of the media
steals personal
documents or
belongings, unless
those items had been
abandoned (e.g. left in a
rubbish bin)334
Gaudron,
Gummow and
Hayne JJ finding it
not necessary to
decide) suggested
that a breach of
confidence action
will protect private
domestic activity
from publication,
however this could
be characterised as
attempting to fit a
square peg in a
round hole, and is
subject to the
reluctance of the
judiciary to
develop it further.
Provides no
protection of the
information
obtained whilst on
the land.
Unless personal
documents are
stolen, these
property offences
do not adequately
or directly protect
privacy.
Franklin v Giddins [1978] QdR 72.
New South Wales Law Reform Commission, Invasion of Privacy, Report No 120, above n 6, 19 [4.12].
331
Creation Records Ltd v News Group Newspapers (1997) 39 IPR 1.
334
Donoghue v Coombe (1987) 45 SASR 330.
332
333
P a g e | 79
335
Bodily or
personal
privacy
Assault,335
stalking and
intimidation,336
and peeping or
prying337 under
the Crimes Act
1900 (NSW).
Reputation
Criminal
defamation338
Personal
privacy
Filming for
indecent
purposes
without
consent, or
installing a
device to film
for indecent
purposes,339 or
engaging in
offensive
behaviour
under
Summary
Offences Act
1988
Offence under
the
Telecommunic
ations
(Interception
and
Access) Act
1979 (Cth)
s7(1) or under
the
Surveillance
Devices Act
2007 (NSW)
Provides a criminal
offence where a
member of the media
makes threats of
violence, or stalks the
person, or is prying
upon that person from
or near the building.
Publishing material,
e.g. in a newspaper,
which is defamatory to
the person, knowing it
to be false and with
intent to cause serious
harm.
The media setting up a
filming device to
capture indecent images
of a person engaged in
a private sexual act.
These offences are
fairly serious
criminal offences
and would require
police
investigation.
If the information
is true it may still
be published,
which does not
offer protection for
private
information.
The offence of
offensive
behaviour has
been used to
prosecute
individuals who
filmed topless
sunbathers on a
Sydney beach for
sexual
gratification,340
however may not
have much
applicability to a
media setting.
Prevents phone-hacking The
by the media.
Commonwealth
legislation is
limited only to the
interception of
telecommunication
s.
Crimes Act 1900 (NSW) Part 2, divs 8-10.
Ibid, s562AB.
337
Ibid, s547C.
338
Ibid, s529.
339
Summary Offences Act 1988 (NSW) ss21G, 21H.
340
Ibid, s4; see also New South Wales Law Reform Commission, Consultation Paper 1, above n 98, 61 [2.102].
336
P a g e | 80
Workplace
privacy
Information
privacy
341
s7(1)
Prohibitions on
surveillance of
employees in
change rooms,
toilet facilities
and
bathrooms;341
use or
disclosure of
workplace
surveillance
records;342 and
covert
surveillance.343
Criminal
offences for
unauthorised
access,
modification
or impairment
of computer
data344
Interfering
with personal
information
and using it for
a purpose for
which
information is
not intended
under the
Privacy Act
1988 (Cth)345
or the Privacy
and Personal
Information
Protection Act
1998 (NSW)
Publishing
restricted
information
identifying
people, facts
Prevents the media
gaining access to
workplace surveillance
records for purpose of
publishing or gaining
information about the
person’s employment
details.
Limited
application only to
the workplace.
Prevents the media
from accessing private
computer data
Limited to
computer data
only
A member of the media
is able to access
personal information
from an agency
(whether public or
private) and discloses it
in a publication,
without the consent of
the owner.
Limited only to
information
privacy held by
public sector, and
certain sections of
the private sector.
A broadcaster publishes
information about the
victim in a sexual
assault case on the radio
or TV348
Only applicable to
information
regarding certain
victims and where
the information is
Workplace Surveillance Act 2005 (NSW) s15.
Ibid, ss18, 36, 37.
343
Ibid, s19.
344
Crimes Act 1900 (NSW) Part 6, Criminal Code Act 1995 (Cth) Part 10.7.
345
Privacy Act 1988 (Cth) s13 [National Privacy Principles 9, 11].
342
P a g e | 81
etc in a closed
court case,346
where the
court has not
ordered the
media to do
so347
Prohibited
disclosure of
health
information349
Private facts
348
Accessing
personal and
financial
information,351
or not
complying
with Privacy
Principles
when dealing
with financial
information
Intentional
infliction of
emotional
distress353
related to a judicial
proceeding, and
may be covered by
equitable breach of
confidence.
A member of the media
induces a public sector
official to disclose
health information
about a particular
individual for a
newspaper story350
A member of the media
obtains access to
verification information
held by a credit
reporting agency by
false pretences.352
Prevents conduct
calculated to cause
physical or emotional
damage to a person, e.g.
newspaper digging up
criminal record of a
person campaigning to
raise money for a heart
transplant354
Relates only to
financial
information and
also to the
verification of
personal details of
people held by
reporting entities.
Limited
application and
‘virtually useless’
in modern law.355
The ingredients of
the action would
be too difficult to
pin down and the
policy
justifications
insecure356
Doe v Australian Broadcasting Commission [2007] VCC 281.
Court Information Act 2010 (NSW) s6.
347
Ibid, s10.
349
Health Records and Information Privacy Act 2002 (NSW).
350
Ibid, s68(2).
351
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) Part 2 Div 5.
352
Ibid, s35J.
353
Wilkinson v Downton [1897] 2 QB 57.
354
Tucker v News Media Ownership Ltd [1986] 2 NZLR 716.
355
Doyle and Bagaric, above n 5, 69.
356
New South Wales Law Reform Commission, Report No 120, above n 2, 19 [4.12].
346
P a g e | 82
Table Two: Elements, Defences and Remedies in Privacy Statutes from
Overseas Jurisdictions
JURISDICTION
Privacy Act 1978
RSS
(Saskatchewan) c
P-24



(Canada)

ELEMENTS
It is a tort
Actionable
without proof of
damage
for a person
wilfully and
without claim of
right, to violate
the privacy of
another person
Without consent
or lawful
authority
The statute provides
a non-exhaustive list
of the types of
situations where
violation of privacy
might be found:

Auditory
surveillance

Listening or
recording
conversations

Using person’s
image or
likeness for
advertising

Use of letters,
diaries or
personal
documents
Taking into account:
 Nature of the act
 Effect
 Relationship
 Conduct before
and after e.g.
apology







DEFENCES
Consent
Lawful right or
defence of
person or
property
Authorised by
law
Duty of peace
officer and not
disproportionate
to gravity of the
matter
News gathering
(that is
reasonable in the
circumstances)
Public interest or
fair comment
(but still not
obtained by
violating
privacy)
Privileged under
defamation law





REMEDIES
Damages
Injunction
Account of
profits
Delivery up
Any other
relief that appears
necessary under the
circumstances.
P a g e | 83
Privacy Act 1987
CCSM (Manitoba)
(Canada)





A person
who
substantially,
unreasonably,
and without
claim of right
violates the
privacy of
another person
commits a tort
against that other
person

No need to prove
damage

Examples of
violations include:

Auditory
surveillance

Listening or
recording
conversations

Using person’s
image or
likeness for
advertising

Use of letters,
diaries or
personal
documents

It is a tort
Privacy Act 1990

Actionable
RSNL
without proof of
(Newfoundland and
damage
Labrador)

for a person
(Canada)
wilfully and
without claim of
right, to violate
the privacy of
another person

Without consent
or lawful
authority

In determining
the nature and
degree of
privacy and
whether it is
reasonable in the










Consent
Defendant
neither knew or
should
reasonably have
known that the
act, conduct or
publication
constituting the
violation would
have violated the
privacy of any
person
Lawful right or
defence of
property or
person
Under lawful
authority
Peace officer
under duty and
acted
proportionately
Where
published, that
the matter was in
public interest or
for fair
comment, or
privileged

Consent
Lawful right or
defence of
person or
property
Authorised by
law
Duty of peace
officer and not
disproportionate
to gravity of the
matter
Public interest or
fair comment
(but still not
obtained by
violating
privacy)
Privileged under








Damages (taking
into account the
nature of the
offence, effect,
relationships,
distress, annoyance
or embarrassment
and conduct before
and after)
Injunction
Account of profits
Delivery up of
offending material
Damages
Injunction
Account of profits
Delivery up of
offending material
Any other relief
that appears
necessary
These remedies can be
additional to other
remedies available
under other Acts.
P a g e | 84
circumstances,
the lawful
interests of
others, and the
nature,
incidence, and
occasion of the
act or conduct
and to the
relationship
between the
parties, is
relevant
defamation law
Examples of
invasions of privacy:

Auditory
surveillance

Listening or
recording
conversations

Using person’s
image or
likeness for
advertising

Use of letters,
diaries or
personal
documents
Privacy Act 1996
RSBC (British
Columbia)
(Canada)
Two separate torts:
1. Violation of
privacy:

It is a tort

Actionable
without proof of
damage

for a person
wilfully and
without claim of
right, to violate
the privacy of
another person

Without consent
or lawful
authority

In determining
the nature and
degree of
These are referred to
as ‘exceptions’, not
as ‘defences’, but it
will not be a
violation of privacy
where there is:





Consent
Lawful right or
defence of
person or
property
Authorised by
law
Duty of peace
officer and not
disproportionate
to gravity of the
matter
Public interest or
There does not appear
to be a remedies
section.
P a g e | 85

privacy and
whether it is
reasonable in the
circumstances,
the lawful
interests of
others, and the
nature,
incidence, and
occasion of the
act or conduct
and to the
relationship
between the
parties, is
relevant
Includes
eavesdropping
and surveillance
whether or not
accomplished by
trespass

fair comment
(but still not
obtained by
violating
privacy)
Privileged under
defamation law
2. Unauthorised use
of the name or
portrait of
another

It is a tort

actionable
without proof of
damage

for a person to
use the name or
portrait of
another for the
purpose of
advertising or
promoting

unless the
person consents

California Civil
Code 1998 §1708.8

(United States)
The
defendant
knowingly enters
onto the land of
another person
without
permission or
otherwise

If a defendant
transmits,
publishes, sells,
broadcasts etc
the offending
material but did
not have actual
knowledge that

Damages up
to three times the
amount of any
general and special
damages that are
proximately caused
by the violation of
this section.
P a g e | 86
Note: the US has a
constitutionallyentrenched right to
freedom of the press.


Privacy Bill 2006*
(Ireland)
*Bill not passed:
2007
committed a
trespass in order
to physically
invade the
privacy of the
plaintiff
with the
intent to capture
any type of
visual image,
sound recording,
or other physical
impression of the
plaintiff
engaging in a
personal or
familial activity
and the
physical
invasion occurs
in a manner that
is offensive to a
reasonable
person
There is also an
action for
constructive breach
of privacy, assault or
false imprisonment
with intent to
capture image (etc)
and an action for
directing, soliciting
or inducing another
to commit the
offence.

It is a tort for a
person

who wilfully and
without lawful
authority

violates the
privacy of an
individual

and the tort is
actionable
without proof of
special damage





the offending
material was in
violation of the
Code
Lawful activities
by law
enforcement or
government or
private sector
agencies with
authority
It is NOT a
defence that the
image, recording
etc was not
actually captured

Lawful defence
of person or
property
Installation of
CCTV in good
faith
Act of news
gathering, in
good faith, for
public
importance, for
public interest,
and fair and







Punitive
damages
Disgorgement
of proceeds (if
invasion of privacy
was committed for
a commercial
purpose)
Civil fine
(between $5,000
and $50,000)
Equitable
relief, including
injunctions and
restraining orders
Prohibitory order
Appropriate
damages in the
circumstances
Account of profits
Aggravated,
exemplary or
punitive damages
P a g e | 87

reasonable in the
circumstances
Absolute or
qualified
privilege
P a g e | 88
Table Three: Comparison of Recommendations for a
Statutory Cause of Action in Australia
Element of the
Cause of Action
ALRC
NSWLRC
My Proposal
New federal Act to
be passed, e.g.
Invasion of Privacy
Act. The Act should
be a Commonwealth
Act but all states and
territories should
enact uniform
legislation to ensure
consistency.
General, statutory
cause of action for
invasion of privacy
Act to which the
cause of action will
be included
New federal Act to
be passed.
Civil Liability Act
2002 (NSW) to be
amended (but part of
a uniform law
exercise to achieve
national consistency).
Type of Action
General, statutory
cause of action for
invasion of privacy
Definition
General, statutory
cause of action for
serious invasions of
privacy
No attempt to define
Objects Clause
No objects clause.

No attempt to define


Recognise that it
is important to
protect privacy of
individuals but
this must be
balanced against
other interests,
including public
interest
Create a statutory
cause of action
Provide remedies
No need to define,
but should provide a
non-exhaustive list of
examples of privacy
invasions so that the
common law may
assist in developing a
flexible and
adaptable set of
social and legal
norms surrounding
the concept of
privacy.

Create uniform
legislation

Recognise that is
important to
protect individual
autonomy

Recognise that it
is important to
protect privacy of
individuals and
balance privacy
against other
interests,
P a g e | 89



Who can bring the
action?
Natural persons
whose privacy
has been invaded
Children and
young people
need a litigation
guardian to bring
a privacy claim.

There is a:

Reasonable
expectation of
privacy

Highly offensive
to a reasonable
person of
ordinary
sensibilities

Actionable
without proof of
damage



Test


Natural persons
whose privacy
has been invaded.
This does not
continue after the
death of the
plaintiff.

The privacy that
the individual
was ‘reasonably
entitled to expect
in all the
circumstances,
having regard to
any relevant
public interest’
was invaded
Silent on
requirement of
proof of damage



including public
interest
Create a statutory
cause of action
Provide remedies
Educate public on
the new
legislation and on
how they can
protect their
privacy and avoid
invasions of
privacy
Person whose
privacy has been
invaded may
bring the action.
This should
extend after death
so that family
members or
others who are
affected (e.g.
with emotional or
mental distress)
can bring an
action (this is in
direct response to
serious behaviour
by media
organisations in
hacking the
phones of murder
victims).
The conduct of
another person
invaded the
privacy that the
individual was
reasonably
entitled to expect
in all of the
circumstances
and
The privacy
interest, when
considered on
balance against
an equally
P a g e | 90
Mental Element
Intentional or
reckless acts
Factors to be taken
into account

Consent
Consent is an
essential element of
the cause of action
and should be
considered when
Whether the
public interest in
maintaining the
claimant’s
privacy
outweighs other
matters of public
interest
(including the
interest of the
public to be
informed about
matters of public
concern and the
public interest in
allowing freedom
of expression)
weighted public
interest,
outweighs that
public interest in
the circumstances
 Actionable
without proof of
damage
Unnecessary to
Unnecessary to
specify, as this is not specify, as this is not
a tortious action.
a tortious action and
courts should be able
to use their discretion
for accidental acts
and other mental
elements

Nature of the

Nature of the
subject matter
subject matter

Nature of conduct  Nature of conduct

Relationship

Relationship
between parties
between parties

Public profile

Public profile

Vulnerability

Vulnerability

Conduct before

Conduct before
and after
and after

Effect on health,

Whether an
welfare and
apology or
emotional
amends is made
wellbeing

Effect on health,

Contravening
welfare and
other Australian
emotional
laws
wellbeing

Contravening
other Australian
laws

Whether there
was consent (and
the extent to
which the activity
was consented to)

Any other matter
which the Court
thinks
appropriate
Consent (not defined
in the legislation but
includes express and
implied consent) will
vitiate an action
Express or implied
consent, only to the
extent of the consent
(i.e. if invasion went
beyond what was
P a g e | 91
Onus
Types of privacy
that are protected
by the statute
determining whether
a claimant had a
reasonable
expectation of
privacy in the
circumstances or
when determining
whether the act
complained of was
sufficiently serious to
cause substantial
offence to a person of
ordinary sensibilities
Recommendations
Onus is on plaintiff
are silent on this.
to prove absence of
consent
consented to then an
action may still be
mounted: e.g.
circulation of
Facebook photo
beyond the realm of
‘friends’). This is
listed as a factor to
be taken into
account.
No need to specify as
the court will take
this into account as a
factor, however
applying normal
rules the onus should
be on the plaintiff to
negative consent.
Provides a nonGeneral action, types Provides a nonexhaustive list of the of privacy protection exhaustive list of the
types of invasions of are not spelt out
types of invasions of
privacy that may fall specifically, it will be privacy that may fall
under the statute:
up to the Courts to
under the statute:

Interference with determine in the

Interference with
home or family
circumstances
home or family
life;
life (which

Unauthorised
includes where a
surveillance;
deceased

Interference,
individual’s
misuse or
privacy is
disclosure of
invaded which
correspondence,
impacts on living
or private written,
relatives);
oral or electronic

Unauthorised
communication;
surveillance;

Sensitive facts

Interference,
relating to an
misuse or
individual’s
disclosure of
private life
correspondence,
or private written,
oral or electronic
communication;

Sensitive facts,
photographs and
other material
relating to an
individual’s
P a g e | 92


Defences
Onus
Exhaustive list:
private life is
disclosed
Online activity is
interfered with,
misused or
disclosed
Any other
circumstances
which the Court
determines
Conduct was
required,
authorised or
enabled by law or
Court order
Lawful defence
of person or
property or in
Court
proceedings
Required or

authorised under

Lawful right of
law
defence of person  Lawful defence
or property
of person or

Authorised by
property

law (where law

Publication of a
includes
matter would
Commonwealth
give rise to
and state and
defamation
territory Acts and
defences of
delegated
absolute privilege
legislation as well
or fair report of
as duties of
proceedings
confidentiality

Where the
under common
defendant
law or equity)
publishing the

Privileged under
matter is an agent
law of
or employee, did
defamation
not know or
ought not
reasonably have
known that the
matter was an
invasion of
privacy (innocent
dissemination
defence)

Where matter is
published but
there is a
common interest
or duty in giving
or receiving
information (and
there is no
malice)
Recommendation is
Onus is on defendant Onus is on defendant
silent on this issue,
to prove defence
to prove defence
we assume onus is on

P a g e | 93
Remedies
defendant.
The Court should ‘be
empowered to choose
the remedy that is
most appropriate in
the circumstances’,
and the statute
provides a list of
examples of possible
remedies:

Damages
(including
aggravated
damages but not
exemplary
damages)

Account of
profits

Injunction

Apology order

Correction order

Delivery up and
destruction of
material

Declaration
The Court has wide
discretion to choose
the remedy that is
most appropriate in
the circumstances,
and the statute
provides a nonexhaustive list:

Compensation
(not ‘damages’,
as compensation
should be able to
be sought for
mental or
emotional
distress alone,
although there is
a cap on noneconomic loss
compensation of
$150,000,
adjustable yearly)

Prohibitory order
(not an injunction
necessarily,
depends on
public interest
and free speech
considerations
but also the
importance of
upholding
privacy in the
first place than
leave it to
compensation)

Declaratory
orders

Delivery up of
offending
material

Any other relief
as the court
considers
necessary (relief
could include
asset preservation
orders, search
orders, account of







Compensation
(no cap).
Prohibition order
Declaration
Delivery up
Apology
Correction order,
proportional to
original
publication
Other relief that
the Court thinks
appropriate
P a g e | 94
profits, apology,
correction orders
and other
appropriate
remedies, orders,
ancillary orders
or procedural
advices derived
from other
statutory or
general law, or
under the
regulations)

No exemplary or
punitive damages
allowed
1 year from date of
defendant’s conduct
(but court has
discretion to extend
by 3 years)
Limitation Period
No proposal put
forward, we assume
ALRC follows the
NSWLRC proposal.
Education
Campaign
Office of the Privacy No education
Commissioner
campaign was
should provide
proposed
information to the
public concerning the
recommended
statutory cause of
action for a serious
invasion of privacy
Relationship with
other laws relating
to privacy
Abolishes any action
for invasion of
privacy at common
law.
Other laws can still
exist, e.g. Privacy
Act and torts and
breach of confidence,
but there cannot be a
common law tort
action for invasion of
privacy because it
may undermine the
statutory cause of
1 year from date of
the claimant
becoming aware of
the circumstances
surrounding the
invasion of privacy,
with a 3 year
discretional
extension period)
A comprehensive
education campaign
should be created
which both informs
the general public
about their rights
under the Act, and
informs primary,
secondary and
tertiary students in
particular about the
range of issues
relating to protecting
their own privacy,
particularly online.
Other laws can still
exist, e.g. Privacy
Act and torts and
breach of confidence,
but there cannot be a
common law tort
action for invasion of
privacy because it
may undermine the
statutory cause of
P a g e | 95
action
action (same as
NSWLRC approach)
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