In brief

  • Recommendations made by the Australian Law Reform Commission in 2008 regarding the introduction of a statutory cause of action for invasion of privacy seem to have found a foothold in the Federal Government.
  • The Government has recently released a paper calling for comment in relation to the introduction of such a statutory cause of action.
  • The Australian Communications and Media Authority has also released a paper regarding proposed updates to its Privacy Guidelines for Broadcasters, with a suggested broadening of the definition of ‘invasion of privacy’ influenced by the ALRC’s recommendations.
  • Media organisations will be affected by these reforms.

Background – law reform commission reports

The Australian Law Reform Commission’s (ALRC) 2008 report on privacy law, For Your Information: Australian Privacy Law and Practice,1 as well as similar reports released in 2009 and 2010 by the New South Wales2 and Victorian3 Law Reform Commissions respectively, have begun to gain traction in the Federal Government, with two new proposals being raised regarding invasion of privacy.

The Federal Government initially responded to 195 of the ALRC report’s 295 recommendations in 2009,4 indicating that the remainder of the recommendations would be addressed following work on the initial reforms. One of the most contentious—and best-known—of the unaddressed recommendations was the call for the introduction of a statutory cause of action for invasion of privacy.

Other aspects of the reforms are progressing, including the proposed Australian Privacy Principles5 and changes to the Privacy Act’s credit reporting regime. Furthermore, the recent phone hacking scandal that has affected UK newspapers seems likely to have motivated the Federal Government to accelerate its consideration of the ALRC’s proposed statutory cause of action.6 The first step in this process was the release on 22 September 2011 of the Government’s Issues Paper, A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy (Issues Paper).7

The release of the Issues Paper also coincides with the Australian Communications and Media Authority’s (ACMA) earlier release of its Consultation Paper, Review of the Privacy Guidelines for broadcasters (Broadcasting Paper).8 The Broadcasting Paper similarly relies on the ALRC’s analysis and recommendations in order to broaden the Guidelines’ definition of ‘invasion of privacy’.

Federal Government Issues Paper on invasion of privacy

Before introducing its analysis of the potential new statutory cause of action, the Issues Paper provides an overview of the current state of the law (including case law) in relation to protection against invasion of privacy in Australia and in other jurisdictions with similar legal systems, including the US, the EU, the UK, Canada and New Zealand.

Following this overview, the Issues Paper’s actual exploration of whether a statutory cause of action should be introduced in Australia—as well as what such a cause of action might look like—draws heavily on the analysis of the ALRC, the New South Wales Law Reform Commission, and the Victorian Law Reform Commission, and often refrains from making any recommendations itself. Instead, the paper considers key elements or features of any eventual cause of action and surveys the available options, concluding each section with a call for comment. Following the structure of the Issues Paper, the key questions include:

Statutory cause of action or common law

  • Is a cause of action for serious invasion of privacy is needed in Australia?
  • Should the cause of action should be created by statute or left to the courts to develop?

Elements of the cause of action

  • What should be the appropriate standard for the cause of action (eg ‘highly offensive to a reasonable person’)?
  • Should balancing the interest in privacy against competing interests—such as freedom of expression—be part of the cause of action itself or merely constitute a defence to the action?
  • How should the public interest in freedom of expression best be taken into account?
  • Should any requirements as to fault be necessary, such as ‘intentional’ or ‘reckless’ conduct?

Relevant factors

  • Should there be provision for consideration of any other relevant matters (eg relationship between the parties, vulnerability, effect of conduct)?

Types of invasion of privacy

  • Should a list of activities which could potentially constitute an invasion of privacy should be included in the Act or in its explanatory material, and if so, what would such a list look like?

Defences and exemptions

  • What defences to the cause of action should be included?
  • Should any special exemptions or defences apply to particular organisations, such as national security and law enforcement agencies?

Remedies

  • What remedies are appropriate?
  • Should there be limits on non-economic damages (eg $150,000)?

Other issues

  • Should the action be restricted to living persons?
  • What limitation period should apply?

While the Issues Paper draws no conclusions as to these questions, it places some emphasis on the current technological and practical privacy context. The immeasurable growth and expansion of the internet and other newer technologies—as well as the increasingly affordable, accessible and unobtrusive means of recording, storing and publishing content online—means that protecting one’s privacy becomes correspondingly more difficult than it was even a few years ago. It is in this context that the government asks whether current laws are able to be adapted to adequately protect the privacy of individuals, or whether gaps currently exist.

The Federal Government has welcomed responses to the Issues Paper, and requested such responses by 4 November 2011.

ACMA Consultation Paper on Privacy Guidelines for broadcasters

In the time between the Government first signalling its intention to move forward in its consideration of a statutory right to privacy and the release of the Issues Paper, ACMA released the Broadcasting Paper regarding proposed updates to the Privacy Guidelines for Broadcasters 2005 (the Guidelines).

The Guidelines are intended to assist broadcasters in understanding the privacy obligations set out in the various broadcasting industry codes of practice, and do not constitute obligations in themselves. However, the key change contained in the Broadcasting Paper indicates a move towards greater protection against invasion of privacy by broadcasters, in line with the options considered in the Issues Paper. That key change is the redefinition of ‘invasion of privacy’ to include not just the disclosure of personal information but also ‘intrusion on seclusion’, a direct reference to traditional formulations of statutory causes of action for invasion of privacy and the ALRC’s 2008 recommendations. This new definition, along with similar clarifications of concepts applicable to broadcasters’ privacy obligations, will be used by ACMA in considering breaches of these obligations in the relevant industry codes of conduct.

Submissions in relation to the Broadcasting Paper are due by 7 October 2011.