The current celebrity photo hacking scandal in the USA provides a timely reminder about the absence of privacy laws in Australia.

A large number of private photographs, including photographs depicting a number of female celebrities either naked or in a state of undress, have been stolen and published online. It has been reported that these photographs were stolen by a hacker who somehow gained access to the celebrities' cloud storage and computing accounts. A number of the celebrities have already made statements that this was a serious invasion of their privacy and they will be legally pursuing anyone who publishes these stolen images.

Currently if similar hacking occurred in Australia, the victim of the hack would not have a cause of action for breach of privacy. The person could attempt to bring a claim founded on another cause of action, however, historically these types of claims have been difficult to sustain.

In a case of perfect timing, the Australian Law Reform Commission (ALRC) on Wednesday tabled in Parliament its final report on its investigations into 'Serious Invasions of Privacy in the Digital Era.' Fittingly, this report notes that invasions 'may occur with increasing ease and frequency in the digital era, when the mobile phones in our pockets are all potential surveillance devices, drones are becoming cheaper and more advanced, and personal information once put online seems impossible to destroy or forget.' A copy of the report can be found here.

The ALRC noted that it had not been asked to determine whether a statutory cause of action for serious invasion of privacy was needed or desirable. This was because three recent law reform inquiries in Australia have answered this question affirmatively. Rather, the ALRC was asked to design the cause of action.

If the Commonwealth Government enacted the cause of action recommended by the ALRC, this tort would provide protection where:

  • a person's privacy has been invaded either intentionally or recklessly
  • the invasion occurred either through intrusion upon the person's seclusion or misuse of the person's private information
  • the person had a reasonable expectation of privacy
  • the invasion was serious
  • the public interest in privacy outweighed any countervailing public interest.

Obviously, if such a tort were enacted and if a similar event happened in Australia, the person whose privacy was invaded would have a clear cause of action against the hacker. The person would be entitled to claim damages. More relevantly, the person may be able to obtain an injunction restraining the publication of the private material and an order that the material be delivered up and destroyed.  

The current celebrity hacking scandal provides the perfect example of why many are advocating that individuals should be able to sue for serious invasions of privacy.  However, care needs to be taken in the creation of such a cause of action to protect the legitimate rights of freedom of speech and expression.