Key Points:

It remains to be seen whether the creation of the proposed tort for invasion of privacy will be a priority for the current government, given the concerns of a number of businesses and industries.

The Australian Law Reform Commission (ALRC) has made another recommendation that the Commonwealth create a right to sue for a serious invasion of privacy.

Another recommendation for a new statutory tort for serious invasions of privacy

The ALRC's report, Serious Invasions of Privacy in the Digital Era, tabled in Parliament on 3 September 2014, in which it recommends the creation of a tort for the invasion of privacy, is not the first time that the ALRC has turned its attention to this issue.

The ALRC first recommended the creation of a tort for invasion of privacy in 2008 as part of its extensive review of privacy laws "For your Information: Australian Privacy Law and Practice". At the time, the tort was described by law-makers as not being a matter of priority for the first wave of reforms (which have now given us the unified Australian Privacy Principles).

In September 2011 an Issues Paper was released by the then government ("A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy") which invited comment on whether Australia should legislate a statutory cause of action for privacy. Finally, in 2013, the then Labor Attorney-General commissioned this new report from the ALRC on the issue.

What is the recommendation?

The ALRC has recommended that the Commonwealth should create a private right to sue for a serious invasion of privacy. The recommended cause of action bears many similarities to the cause of action first proposed by the ALRC back in 2008.

The recommended legislation would create a cause of action in tort where a plaintiff's privacy had been invaded by a defendant by either:

  • an intrusion upon seclusion (such as by physically intruding into the plaintiff's private space or by watching, listening to or recording the plaintiff's private activities or private affairs); or
  • a misuse of private information (such as by collecting or disclosing private information about the plaintiff).

"Private information" would include untrue information, but only if the information would be private if it were true. The Report recommends that the tort be confined to intentional or reckless invasions of privacy (it would not extend to negligent invasions of privacy). Only natural persons (not companies) would be able to rely on the cause of action.

The Report recommends a limitation period of either one year from the date the plaintiff became aware of the invasion of privacy, or three years from the date on which the invasion occurred (whichever is earlier). The limitation period could be extended to six years in exceptional circumstances.

The ALRC considers that by describing the action as a tort, courts will be encouraged to draw upon established principles of tort law (which it hopes would promote a measure of certainty and consistency to the law). It also considers that the enactment of such a cause of action would bring Australia into line with recent common law developments concerning serious invasions of privacy in the UK, the US, New Zealand and Canada.

There must have been a reasonable expectation of privacy

It is recommended that the cause of action would only arise where a person in the plaintiff's position would have had a "reasonable expectation" of privacy in all of the circumstances.

The Report recommends that in making this determination, courts may consider, amongst other matters: the nature of the information at issue (for example, whether it relates to intimate, health or financial matters), the means used to obtain the private information or to intrude upon seclusion, the purpose of the misuse, disclosure or intrusion, the attributes of the plaintiff (including age, occupation and cultural background), and the conduct of the plaintiff (including whether the plaintiff invited the publicity).

A balancing act: personal privacy and the public interest

An important principle guiding the ALRC's recommendations was that an individual's right to privacy, while worthy of legal protection, is not absolute and is not a right which necessarily trumps other matters of public interest. To this end, in order for the cause of action to arise, the ALRC has recommended that a court must be satisfied, in the circumstances of the case, that any countervailing public interest is outweighed by the public interest in privacy.

It recommended that a list of countervailing public interest matters that a court may consider should be included in the legislation, including freedom of expression (including political communication and artistic expression), freedom of the media (particularly to responsibly investigate and report matters of public concern and importance), the proper administration of government and national security.

Defences to the tort

The Report recommends that there should be a number of defences to the tort of invasion of privacy, as follows:

  • the conduct was required or authorised by law (for example, for law enforcement agencies intercepting telephone calls under a warrant);
  • the conduct was incidental to the exercise of a lawful right of defence of persons or property;
  • necessity (for example, situations of public or health emergencies, where emergency services personnel need to obtain access to an individual's private information);
  • consent, whether express or implied;
  • absolute privilege (for example, where personal information is revealed in the course of court proceedings);
  • publication of public documents; and
  • fair report of proceedings of public concern.

What damages could be awarded by a court?

The Report has recommended allowing courts to make an award of damages (including damages for emotional distress, and exemplary damages in exceptional circumstances). The court would have the power to award an account of profits and to order injunctions to restrain a threatened invasion of privacy and the delivery up and destruction of material. A defendant could also be ordered to apologise.

It is suggested that no actual damage would need to be demonstrated by the plaintiff as an element of the tort and that the tort should be actionable "per se".

Conclusion

The recommended cause of action bears many similarities to the cause of action first proposed by the ALRC back in 2008. However, it remains to be seen whether the creation of the proposed tort will be a priority for the current government when a number of businesses and industries have expressed considerable concerns about the effect of such a cause of action.