Australia: Royal Invasions: A Forum to Consider Australia’s Laws Relating to Breaches of Privacy

Last Updated: 22 December 2012
Article by Justine Munsie

The Royal Family are rarely far from the front end of a news bulletin and 2012 has proved no exception. It was not all that long ago that the publication of compromising photos of a 'festive' Prince Harry in Las Vegas raised for discussion the privacy rights of individuals, involving members of the Royal Family.

Since then, two recent incidents involving the Duchess of Cambridge, Kate Middleton, have caused an even greater spotlight to be shone on privacy rights, including in Australia.

In the case of the (mostly topless) images of the Duchess taken by a paparazzo in France, legal proceedings in the French courts have illustrated that French law is among the most protective of an individual's right to privacy. These protections are entrenched in France's Civil Code and are routinely enforced by the courts against paparazzi and publishers alike.

Now, the fallout from the recent scandal surrounding 2Day FM's broadcast of a prank call made to the King Edward VII Hospital has drawn further significant attention to the existing regulations concern privacy and the media, this time in Australia. Coincidentally, this has come at a time when Australia is debating the future of its privacy laws. Earlier this month, the Communications Law Centre at UTS hosted a symposium entitled "Privacy and the 21st Century", in which Lord Justice Leveson and several other high profile representatives from Australian politics, the media and academia explored the future of privacy regulation and the introduction of a tort of invasion of privacy.

In this article, we:

  • explore the proceedings involving the Duke and Duchess as a case study to consider the state of Australia's existing laws in relation to privacy as they apply to members of the media, and
  • briefly consider some of the legal issues around the prank call scandal.

The Duke and Duchess v Mondadori: A French Perspective

On 14 September 2012, the French magazine "Closer", owned by the Italian media company Mondadori, published 14 photographs of the Duke and Duchess taken whilst the couple was vacationing at a private chateau in Provence. Some of the controversial photos depict the Duchess sans bikini top and, in one instance, with her suit bottom partially lowered to apply sunscreen. It is understood that these photographs were taken with long lenses which would have enabled the photographer (whose identity, somewhat ironically, remains shrouded in secrecy) to capture the images from a public road or footpath approximately a kilometre away.

Legal Action Taken by the Royals

The Duke and Duchess commenced civil proceedings against Mondadori in the Tribunal de Grande Instance de Nanterre for breach of privacy and a cause of action akin to a breach of copyright in one's image.

As breach of privacy, the Duke and Duchess sought to invoke Article 9 of the Civil Code in France, which essentially provides that "everyone has the right to respect for his or her private life". Whilst "private life" is not an expression that is defined, the courts in France have interpreted this to include matters such as a person's romantic life, friendships, family circumstances, political opinions, religious affiliation and state of health.

As to breach of copyright in one's image, the courts in France have recognised an individual's copyright over his or her own image through their interpretation of Article 9. In 2004, the Supreme Court of France (Cour de Cassation) held that "everyone has an absolute and exclusive right to his own image and can forbid its reproduction or its utilisation without authorisation"1. Notably, the courts in France have held that protection over copyright in one's image effectively goes beyond the scope of right to privacy in that it can apply to images taken in a public place without the person's authorisation2.

In addition to the civil proceedings brought by the Duke and Duchess against Mondadori, the royal couple have filed a criminal complaint against "X" – the unknown photographer – and 'Closer' magazine. These complaints remain the subject of an investigation by French police.

The relevant criminal provisions relating to breaches of privacy can be found in Articles 226-1 to 226-9 of the French Penal Code which make it an offence, intentionally and by means of any process whatsoever, to infringe another person's privacy by taking, recording or transmitting, without consent, the picture of the person whilst in a private place. The courts in France have interpreted "a private place" to mean a place that is not open to others, whether on a temporary or permanent basis, without the permission of the person who occupies it. Liability extends to publishers of photographs (i.e. magazines, newspapers, etc) by making it an offence to make use of recordings and documents obtained by way of conduct which falls within Article 226-1, in circumstances where the publisher has knowingly preserved the material, intentionally brought it to the attention of a third party or used it publicly. The publisher must satisfy itself that consent from the subject of the photograph was obtained prior to acquiring the photographs.

The Courts' Findings to Date

In the civil proceedings, Mondadori sought to defend its publication of the pictures broadly on the basis of editorial freedom and freedom of expression.

The Court rejected Mondadori's defences having regard to the following matters:

  • the Duke and Duchess were on private property when the photographs were taken;
  • the photographs were capturing an intimate moment; and
  • the photographs were taken and published without the Duke and Duchess's knowledge or authorisation.

It held that "[t]hese snapshots which showed the intimacy of a couple, partially naked on the terrace of a private home, surrounded by a park several hundred meters from a public road, and being able to legitimately assume that they are protected from passers-by, are by nature particularly intrusive"...[They] were thus subjected to this brutal display the moment the cover appeared". This can, of course, be contrasted with situations in which the Duke and Duchess are in public and are acting in the course of their official duties as members of the royal family.

What Would be the Legal Position in Australia?

While it has been argued by some that there is a gulf between the legal remedies available under French law and those available in Australia, paparazzi and publishers of such photos in Australia would encounter largely similar legal risks to those faced by their counterparts in France.

Assuming, for instance, that all of the facts are the same, save that the photographs were taken on some piece of private property in Australia and were published by a local magazine, various possible causes of action arise for consideration.

Depending upon the State or Territory in which the conduct took place, the photographer and/or the local magazine could face criminal prosecution, whilst there may be scope to rely upon the causes of action of breach of confidence and trespass as bases for suing both parties, even in the absence of a recognised tort of invasion of privacy.

The Common Law Position

Notwithstanding the obiter of the minority the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, Australian courts have remained somewhat reticent to recognise a tort of invasion of privacy. With the exception of two decisions of first instance courts (the District Court of Queensland in the case of Grosse v Purvis3 and the County Court of Victoria in the case of Doe v Australian Broadcasting Corporation4), the courts have not expressly recognised such a cause of action.

However, there has been some suggestion that the existing action for breach of confidence is capable of being used to enforce breaches of privacy. The decision of the Supreme Court of Victoria in Giller v Procopets5 considered this issue and accepted that the notion of confidential information "does extend to information concerning the personal affairs and private life of a plaintiff"6. Whilst the Courts are yet to determine whether the same reasoning would apply to use of confidential information by third parties, such as photographers and publishers, there is nothing in that case which would prevent such a finding.

Further, had the photographer taken the images on private property, the Royal couple would be entitled to restrain their publication and sue for damages on the grounds of the tort of trespass.

The Position Under Statute

Presently, Australian Parliaments have not introduced a statutory cause of action for invasion of privacy.
That said, the ALRC recommended the introduction of a statutory cause of action in respect of serious invasions of privacy and that this cause of action should apply to "acts and practices in the course of journalism"7. Moreover, the New South Wales8 and Victorian Law Reform Commissions9 have also recommended the introduction of similar causes of action10.

In September 2011, the Federal Government released a discussion paper on this very topic, which has been the subject of numerous submissions from various interest groups. We understand that the Federal Government was to give consideration to this matter in October 2012, however no announcement has yet been made on whether a statutory cause of action will be adopted.

The recent privacy symposium, in which Lord Justice Leveson presented his views regarding a tort of privacy, provided a convenient forum for representatives from both sides of politics and the media industry to discuss their attitudes on this very issue. Greens Senator Scott Ludlam made clear that he was on the side of introducing a statutory cause of action for invasions of privacy, whilst Shadow Minister for Communication and Broadband, Malcolm Turnbull appeared resistant to such regulation.

Criminal Sanctions

Had the events occurred in Australia, there are also a range of criminal offences provisions at State/Territory level which might apply to the photographer and the local magazine.

In relation to the photographer:

  • In Queensland, the conduct by the photographer may constitute an offence under the Criminal Code 1899 on the basis that it is a visual recording obtained in breach of privacy.
  • In Victoria, Western Australia and the Northern Territory the respective Surveillance Devices Acts make it an offence for a person to "knowingly install, use or maintain an optical surveillance device to record visually or observe a private activity" to which the person is not a party, without the express or implied consent of each party to the activity.
  • In Victoria, the Summary Offences Act 1966 makes it an offence to capture another person's genital or anal region in circumstances in which "it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured". (This may not apply to 'topless' photographs.)
  • In South Australia, the Summary Offences (Filming Offences) Amendment Bill 2012 was recently introduced into Parliament which, if passed, will make it an offence for photographers to capture invasive or indecent images without consent.

In relation to the local magazine:

  • Communication of a record of a private activity captured by a surveillance device is also an offence in the states referred to above. Distributing the images could fall within the offences of the Queensland Criminal Code. These offences carry maximum penalties of 2 years imprisonment.
  • The Victorian Summary Offences Act extends the liability to publishers of such photographs: "A person who visually captures or has visually captured an image of another person's genital or anal region must not intentionally distribute that image. This offence carries a penalty of 2 years imprisonment.
  • In South Australia, the Summary Offences (Filming Offences) Amendment Bill 2012, if passed, would also have the effect of prohibiting the distribution of such images captured by photographers.

2DayFM Prank Call

The fallout in the past weeks from the prank call by 2Day FM DJ's Mel Greig and Michael Christian to King Edward VII Hospital has been used by some to suggest that Australia's existing laws fail adequately to protect privacy rights. However, in addition to the matters raised above, examined more closely, existing laws in Australia can be shown to provide a firm basis for redressing conduct which is in the nature of a privacy breach, particularly when the media is involved.

In the case of 2Day FM, the radio licensee is obliged to observe the Commercial Radio Codes of Practice which contain relevant provisions regarding recorded calls and matters of privacy. Clause 6.1 provides:

"A licensee must not broadcast the words of an identifiable person unless:

  1. that person has been informed in advance or a reasonable person would be aware that the words may be broadcast; or
  2. in the case of words which have been recorded without the knowledge of the person, that person has subsequently, but prior to the broadcast, expressed consent to the broadcast of the words."

The Codes of Practice also include provisions which apply to news and current affairs programs specifically regarding the use of material relating to a person's personal or private affairs, or which invades an individual's privacy. Clause 2.1 provides:

"News programs (including news flashes) broadcast by a licensee must:


  1. not use material relating to a person's personal or private affairs, or which invades an individual's privacy, unless there is a public interest in broadcasting such information."

A similarly drafted provision applies to preparation and presentation of current affairs programs11.

Such recordings are also restricted by the Surveillance Devices Act in New South Wales and its equivalent legislation in most other states, which prohibits recording telephone conversations without the consent of the parties involved if the communication was "private" and not one which the parties reasonably expected to be overheard.

Australian media regulator, ACMA, has recently announced that it will investigate the conduct of Southern Cross Austereo, the owner of the radio station, under the Commercial Radio Codes of Practice and the station's licence conditions imposed by the Broadcasting Services Act 1992 (Cth). Any action that ACMA may take (i.e. suspending or revoking its licence, imposing conditions and other measures) would only be in respect of the licensee and not the individuals involved (i.e. the DJs) but could nevertheless impose further conditions of the licensee and effect changes in the way similar calls are handled in the future.

The assistance of Nicholas Rozenberg, Solicitor and Pauline Penneret, French Law Clerk, of Addisons in the preparation of this article is noted and greatly appreciated.


1 Cass. Civ.2ème, 30 June 2004, n°02-19.599. It is also the position of the European Court of Human Rights that reminds that "the private life notion includes some elements linked to someone's identity as his name or his image".
2 Cass. Civ.1ère, 12 December 2000, n°98-21.311.
3 Grosse v Purvis [2003] QDC 151.
4 Doe v Australian Broadcasting Corporation [2007] VCC 281. We note that the decision was the subject of an appeal, however the matter was settled out of court in 2008 and so the appeal was never heard.
5 [2004] VSC 113. The defendant had filmed a number of sexual encounters between the parties (some of which were filmed by consent) and subsequently distributed the footage to others.
6 Giller v Procopets [2004] VSC 113, at [151] per Gillard J.
7 Australian Law Reform Commission, Report 108, 'For Your Information: Australian Privacy Law and Practice', 2008, Chapter 74, Recommendations 74-1 to 74-7.
8 NSW Law Reform Commission, Report 120, 'Invasion of Privacy', 2009.
9 Victorian Law Reform Commission, Final Report 18, 'Surveillance in Public Places', 2010, Chapter 7.
10 The NSW Law Reform Commission drafted a bill, the "Civil Liability Amendment (Privacy) Bill 2009", with the following objects:

  1. to recognise that it is important to protect the privacy of individuals, but that the interest of individuals in their own privacy must be balanced against other important interests (including the interest of the public in being informed about matters of public concern), and
  2. to create a statutory cause of action for the invasion of an individual's privacy, and
  3. to provide for a number of different remedies to enable a court to redress any such invasion of privacy.

The Victorian Law Reform Commission recommended in August 2010 that two statutory causes of action be created, for "serious invasion of privacy [firstly] by misuse of private information [and secondly] by intrusion upon seclusion".
11 See clause 2.3 of the Commercial Radio Codes of Practice.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Justine Munsie
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions