The assistance of Jessica Azzi, solicitor, of Addisons in the preparation of this article is noted and greatly appreciated
On Friday, 23 September 2011 the Department of the Prime Minister and Cabinet (PMC) released an Issues Paper, A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy (Issues Paper), inviting submissions to assist the Commonwealth Government for its pending consideration of whether a statutory cause of action, that is, a right to sue, for breach of privacy should be introduced in Australia.
The Issues Paper follows a series of relatively recent reports into privacy law in Australia, and central to the concern around privacy law is technology and its permeation into the everyday lives of citizens. For example, a person can be photographed with a smartphone without their knowledge or consent, and that photograph can be uploaded online within seconds of it being taken. This is an example of activity targeted by the proposed cause of action.
The cause of action remains in skeletal form. However, based on current recommendations referred to by the Issues Paper, a claimant will need to show that a "reasonable expectation of privacy" existed. Additionally, the claimant will also need to show that the public interest, which includes, for example, the public interest in protecting the claimant's privacy, as well as the public interest in freedom of expression, favours maintaining the claimant's privacy.
Current recommendations for reform
In 2008 the Australian Law Reform Commission (ALRC) published its report For Your Information: Australian Privacy Law and Practice, in which it recommended that a statutory cause of action for serious invasions of privacy should be provided by federal law. The ALRC's position was followed a year later by the New South Wales Law Reform Commission (NSWLRC), and then by the Victorian Law Reform Commission (VLRC) which published a report in 2010. Both the NSWLRC and the VLRC recommended a similar cause of action be available.
The privacy cause of action which has been so far recommended would be far reaching and catch a wide range of activity, examples of which are listed by the ALRC which recommeds that a non-exhaustive list of privacy breaching activities could assist in the interpretation of the cause of action. This view is shared by the NSWLRC. The ALRC's list of activities includes unauthorised surveillance; interference, misuse or disclosure of an individual's correspondence or private, written, oral or electronic communication; and interference with an individual's private home or family life. It is likely that potential defendants can be individuals, businesses and government agencies alike.
Whilst the ALRC, NSWLRC and VLRC are united in calling for a statutory cause of action for breach of privacy, the Issues Paper does point to contentious issues which illustrate the sensitivity of this broader topic and flags potential obstacles which must be addressed by the community and legislators in considering whether to introduce the cause of action. These include, for example:
- Balancing privacy with freedom of expression, artistic freedom and freedom of the press. As summarised in the NSWLRC Report, "the provision of a statutory base for the protection of privacy would unfairly tilt the balance in favour of the interest in privacy at the expense of the interest in freedom of expression".
- Commonwealth or State? At what level is the cause of action to be provided? ALRC suggests Commonwealth, NSWLRC suggests state.
- What should be the test for breach? Whilst all three commissions agreed that the claimant had to have a reasonable expectation of privacy, the ALRC and VLRC recommended that the breach be at the level of "highly offensive" whereas the NSWLRC viewed such a requirement as an "unwarranted" qualification on the claimant's reasonable expectation of privacy.
- Should a fault element be included? The ALRC recommended that the cause of action require that a defendant's act or conduct be reckless or intentional, whilst VLRC argued that it was unnecessary to expressly exclude negligence.
- Should there be a limitation on damages? The NSWLRC recommended that a cap of $150,000 be imposed, however neither the ALRC nor the VLRC believed that there was a need for a cap. The Issues Paper suggests that a damages cap should be imposed to ensure that there is a consistency with defamation law, so that claimants who could pursue either cause of action are not motivated by damages.
- Limitation of action. The Issues Paper highlights divergent approaches regarding the limitation of action, with the NSWLRC recommending that a limitation period of one year applies to ensure consistency with a defamation claim whilst the VLRC recommends a three year limitation period, in line with limitation periods for causes of action for personal injuries.
The Issues Paper sets out a list of 19 questions to assist parties interested in making submissions. Those questions cover the issues addressed above and more including:
- Do recent developments in technology mean that additional ways of protecting individuals' privacy should be considered in Australia?
- Is there a need for a cause of action for serious invasion of privacy in Australia?
- Should the balancing of interests in any proposed cause of action be integrated into the cause of action or constitute a separate offence?
- How best could a statutory cause of action recognise the public interest in freedom of expression?
- What should be included as defences to any proposed cause of action?
- Should particular organisations or types of organisations be excluded from the ambit of any proposed cause of action, or should defences be used to restrict its application?
The PMC invites parties to consider the questions, as well as any other comments and suggestions raised in the Issues Paper, and any other matters relevant to the proposed cause of action. The PMC has requested submissions by 4 November 2011.
1. Department of the Prime Minister and Cabinet (PMC), Issues Paper: A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy, available at http://www.dpmc.gov.au/privacy/causeofaction/. Visited on 23 September 2011.
2. Australian Law Reform Commission (ALRC), Report 108 - For Your Information: Australian privacy Law and Practice (2008).
3. New South Wales Law Reform Commission (NSWLRC), Report 120: Invasion of Privacy (2009).
4. Victoria Law Reform Commission (VLRC), Surveillance in Public Places: Final Report 18 (2010).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.