As part of its review of Australian privacy laws, the
Australian Law Reform Commission (ALRC) has released the
Australian Law Reform Commission, Report 108 — For
Your Information: Australian Privacy Law and Practice (2008)
suggesting that a statutory cause of action be provided for serious
invasions of privacy. This would mean that, where an
individual's privacy has been invaded, that individual would be
able to bring a suit for damages caused by that invasion of
In addition to the ALRC recommendations, both the NSW Law Reform
Commission (NSWLRC) and the Victorian Law Reform Commission (VLRC)
have released reports (see NSWLRC, Report 120: Invasion of
Privacy (2009) and VLRC, Surveillance in Public Places: Final
Report 18 (2010)) supporting the concept of a tort for
invasions of privacy.
Whilst the consensus on the development of a statutory cause of
action is a positive step, the key issue that now remains is what
will constitute an invasion of privacy and what will need to be
proven to show that a tort has in fact been committed.
Reasonable expectation of privacy
The respective Commissions generally agree that, for there to be
a statutory cause of action, the relevant injured party must have
had a "reasonable expectation of privacy". This would
mean that to prove that a tort has been committed, a plaintiff
would need to prove that he or she had a reasonable expectation of
privacy and that the privacy was breached.
Highly offensive invasion of privacy
Under both the ALRC and VLRC models, the breach of privacy would
need to be "highly offensive to a person of ordinary
sensibilities". This high threshold would mean that a mere
invasion of privacy would not be enough on its own to give rise to
a cause of action. Under this approach, the invasion of privacy
would need to be highly offensive.
The NSWLRC disagreed with the "highly offensive"
approach. instead, the NSWLRC decided that certain aspects of each
individual case would need to be taken into account. For example,
it suggested that issues such as the relationship between the
parties and the nature of the invasion would need to be assessed in
order to identify whether a tort has occurred.
The public interest
Another major issue is whether the "public interest"
should be considered in invasion of privacy claims. Here two
alternatives were suggested: the ALRC and NSWLRC decided that
public interest considerations would be integrated with the cause
of action, while the VLRC decided that the issue should not be
considered until raised as a defence by the alleged wrongdoer.
In relation to the former approach, courts would consider the
public interest in deciding whether in fact a cause of action
exists. That is to say that, if the public interest in gathering
private information outweighed the public interest in recognising a
breach of privacy, no cause of action could be found. In the latter
approach, public interest would not dictate whether or not an
invasion of privacy had occurred. Instead, under the VLRC's
approach, the tort would exist regardless of public interests but
the alleged wrongdoer would bear the burden of raising public
interest as a defence.
A requirement of 'fault'
The final issue considered by the respective Commissions was
whether a fault element should form part of the proposed tort.
Under the ALRC's recommendations, the wrongdoer would need to
have intent or would need to have been reckless in invading another
individual's privacy. This would necessarily mean that an
accidental or negligent breach of privacy would not give rise to a
cause of action. The VLRC did not take the same approach. It saw no
need to discount incidences of negligence from the application of
the new law.
The push for a statutory cause of action for invasions of
privacy to be included in privacy reform has clearly gained
significant support from three of the country's Law Reform
Commissions. From the above discussion, however, it remains unclear
what would constitute an invasion of privacy and under what
circumstances an individual would be able to enforce his or her
right to privacy. It appears that there is certainly some work to
be done in reaching consensus on what would constitute a tort of
invasion of privacy, before the legislation could be drafted and
put before parliament.
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.
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