A tort of invasion of privacy... So, is there one, or not?
After nude photos of Lara Bingle walking around her apartment were aired on television, she thinks there should be. And it's likely that the man in Brisbane made famous on Twitter for watching porn in his office cubicle would agree.
A growing trend in Australian courts towards the recognition of privacy as a right in itself deserving of protection suggested that a distinct cause of action for invasion of privacy was developing.
It all began with controversial footage of the processing of brush tail possum meat in Australian Broadcasting Corporation v Lenah Game Meats. The High Court in this case alluded to a need to develop a cause of action for invasion of privacy. Since then, two lower courts have taken the hint by expressly recognising a civil action for damages based on the right of an individual person to privacy.
For a while, it seemed as though Lara could go back to being naked in her home in peace. That is until the Supreme Court of South Australia's recent decision in Sands v South Australia threw a spanner in the works.
In this case, Derick Sands, a suspect in a murder case, alleged that, in breach of his privacy, a person within the South Australia Police Force had leaked his name to the media. Surprisingly, the Supreme Court rejected the High Court's endorsement in Lenah Game Meats of the development of a tort of privacy, saying that further development in the law was needed first. Surprising because we'd thought the High Court was pretty clear about this.
Where does that leave us? Well, it's undecided whether invasion of privacy exists as a civil cause of action. This needs to get up to an appellate court, or preferably the High Court itself, so we can get a proper answer.
In the meantime, keep your clothes on, or your curtains closed, and save the porn for home.
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