Australia: Whipping Up A Tort: Actions Based On Privacy

Last Updated: 15 May 2007
Article by Alix Osborn

It seems to me that, having regard to current conditions in this country, and developments of the law in other common law jurisdictions, the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country, or whether legislatures should be left to determine whether provisions for a remedy for it should be made.1


The above quotation is a small insight into the debate that has surrounded the development of the tort of privacy, both in Australia and other common law jurisdictions, during the previous decade. With courts often deferring to the role of Parliament in fully developing the ‘right to privacy’ concept, privacy rights in Australia have tended to develop under breach of confidence principles. This has left the law in a position where the tort of privacy has been accepted as practically existing, although no free-standing principles have been enunciated. As this paper will illustrate, common law countries have followed a relatively similar path in this field, with countries such as New Zealand going as far as creating a statutory right to privacy, while the United Kingdom and Australia have all but established the tort. The position in Australia as it currently stands is that while a right to privacy more or less exists, it represents a ‘very thorough reworking of the action in confidence into a privacy remedy in all but name’.2

Lenah Game Meats: the Starting Point

As many cases during the 1990s have indicated, it has been assumed that as a result of the decision in Victoria Park Racing v Taylor3 there is no actionable right to privacy in Australia. Relevant Australian legislation has stopped short of enacting an enforceable statutory right to privacy4, arguably as a result of the decision in Victoria Park, which was thought to clearly stamp out the cause of action. Australian Broadcasting Corporation v Lenah Game Meats can be seen as a seminal case, often cited by courts in the United Kingdom as containing not only an indication that a tort of privacy may exist in common law countries, but also for Gleeson J’s enunciation of what appears to be a test as to when the right to privacy can be evoked. In this case, both Gummow and Hayne JJ stated in no uncertain terms that "Victoria Park does not stand in the path of the development of such a cause of action"5. In stating that the case does not stand for the proposition that there is no identified tort of privacy in this country, the path has been left open for the development of such a tort.

The test as stated by Gleeson J in Lenah Game Meats, that "disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities"6 is in keeping with the reasonableness requirement apparent in many legal tests. However, the court did not ultimately apply this test in Lenah, as the facts of the case did not present themselves as facts applicable to an action in privacy. The relevant entity was a corporation, and although it was stated that United Kingdom legislation recognises the possibility that a corporate body could invoke a breach of privacy argument, the same could not be said in Australia. As Gleeson J indicated, a tort of privacy would be based on the human rights of autonomy and dignity; rights which are seemingly out of place when applied to a corporation.

Lenah Game Meats also indicates that where available, courts will rely on an action in breach of confidence. Breach of confidence can be seen as a flexible cause of action in that it has continually expanded to account for changes in societal values, behaviour, and modern technology. Many cases have now recognised that there is no longer the need to establish a relationship of trust and confidence.7 It is similarly recognised that a photographic image, whether illegally or improperly taken or obtained, where the image depicted is considered private, is considered confidential information. As cases such as Douglas v Hello! and Campbell v MGN Limited8 have indicated, this has an enormous implication on the kinds of information and images that members of the press may publish and circulate.

The United Kingdom Cases

The most recent case to come out of the United Kingdom that has addressed these issues is that of Campbell v MGN in the House of Lords, an appeal from an earlier decision that held that the Mirror could publish photographs of Naomi Campbell outside a Narcotics Anonymous meeting, along with details of her treatment to combat drug addiction. The appeal was allowed on the basis that "there was an infringement of Miss Campbell’s right to privacy that cannot be justified".9 While it was admitted that the Mirror had the right to publish information concerning the fact that Miss Campbell was a drug addict, this was only on the basis that she had previously asserted to the press, on numerous occasions, that she, unlike many models in her position, had managed to avoid the temptations of drugs. The Mirror was therefore entitled to publish information that set the record straight and indicated that she had in fact been lying. However, the inclusion of the photographs, which had been taken without her knowledge or consent and depicted her hugging other members of Narcotics Anonymous outside a venue where a session had taken place, was considered to be an invasion and to outweigh the right to freedom of expression, as argued by the defendants. A distinction was drawn by Lord Hope of events that are captured in a public place, and an event which, although it may occur in a public place, depicts one or more people, the true subject of the photograph. In the latter instance, as was the case here, the public nature of Miss Campbell’s actions was considered to be a mere background to the actual information conveyed in the photograph.

The situation in the United Kingdom differs from that in Australia in that courts in the UK must endeavour to undertake a balancing act between the rights of the common law, and the rights as espoused through the Human Rights Act 1998 and the European Convention on Human Rights. By incorporating the elements of the Human Rights Act and the ECHR into case law, judges have in effect broadened the scope of breach of confidence actions to legitimately include actions against breaches of privacy, a right now protected through the Convention and Human Rights Act.10 This has therefore led to the expanding of confidence actions to include privacy issues, while all the while avoiding the explicit need to develop a tort of privacy in its own right.

This is arguably an unsatisfactory position as the principles behind confidence actions in fact differ from those at the base of an action in privacy. As already mentioned, the element that there be in existence a relationship of confidence has been more or less done away with in more modern times in order to encompass the situation where a persons whose right to privacy is encroached upon has no relationship with, for example, the photographer who surreptitiously and unknowingly takes their photograph and then sells it to a magazine. Actions in confidence have traditionally been built upon the requirements of a fiduciary relationship, information that is by nature confidential, and an understanding that that information has been imparted in circumstances which give rise to an obligation of confidence. Privacy, on the other hand, can be seen as a basic human right stemming from the right to autonomy and personal dignity. It is surely therefore necessary to consider this cause of action as a right in its own form in order to develop its parameters accordingly. Arguably, much of the English case law has failed to do this. While courts in the United Kingdom have recognised that privacy is a right deserving of protection under the common law, they are yet to set out the elements of such a right, or any legal tests that may be of use in ascertaining its existence. Instead, the English courts invariably cite Gleeson J in Lenah as espousing the test for invasion of privacy, as outlined above.

The Existing Tort of Privacy in New Zealand

The tort of privacy as it exists in New Zealand has shared a similar path as in other common law countries. In Hosking & Hosking v Simon Runting & Anor,11 where pictures of a celebrity couple’s twin children were at issue, Gault and Blanchard JJ both recognised the distinction between actions in confidence and privacy, stating that there now seems to be two distinct versions of the tort of breach of confidence: one is the traditional cause of action applicable where information has been imparted in confidence, and the other "gives rise to a right of action in respect of the publication of personal information of which the subject has a reasonable expectation of privacy, irrespective of any burden of confidence, but only where the publication is or is likely to be highly offensive to a reasonable person".12 The Court of Appeal in New Zealand found that a law of privacy had been recognised in various other common law jurisdictions, although it had been found so under the head of breach of confidence. The Court went further than the English courts in outlining the elements of a tort of privacy and stating that the scope of the cause of action should be left to incremental development by future courts. The Court stated that there were two fundamental requirements for a successful claim for interference with privacy, being13:

  1. The existence of facts in respect of which there is a reasonable expectation of privacy; and
  2. Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.

While the court stated that aspects of privacy would often be protected under heads of nuisance or trespass, they acknowledged that this would not always be the case. The Court ultimately held that "the way in which the law has been developing through the decisions of the High Court should not be interrupted", citing as reasons the fact that this is so in the United Kingdom, albeit that the developments have been under the title of breach of confidence, and that it also avoids the deterioration of the elements for an action of breach of confidence14.

Australian Cases Post-Lenah Game Meats

The cases that have dealt with this question in Australia since Lenah Game Meats leave the issue of whether Australia in fact recognises a tort of privacy unresolved. While a single judge in District Court of Queensland has stated plainly that such a tort exists in Grosse v Purvis15, Gillard J in the Supreme Court of Victoria has held that the common law in Australia does not recognise the tort of privacy16. Both cases concerned rather elaborate factual scenarios, encompassing love affairs and issues of harassment. Grosse related to an invasion of privacy by a former lover, while the privacy issues in Giller centred around the showing of a video recording of the plaintiff and defendant engaged in rather private and personal acts. In Grosse v Purvis, the plaintiff was ultimately awarded $178,000 in her action for damages for breach of privacy. Senior Judge Skoien drew upon the position in the United States17, as well as that in the United Kingdom, in order to reach his conclusion that "it is a bold step to take, as it seems, the first step in this country to hold that there can be a civil action for damages based on the actionable right of an individual person to privacy. But I see it as a logical and desirable step. In my view there is such an actionable right"18. Much like the New Zealand Court of Appeal, Skoien J outlined the elements of the tort, although in far more detail. In his view, the essential elements were19:

  1. a willed act by the defendant,
  2. which intrudes upon the privacy or seclusion of the plaintiff,
  3. in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities,
  4. and which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.

These elements take the tort further than the unauthorised publication of private information or photographs into the realm of personal behaviour that intrudes on another’s privacy and is likely to offend, thus expanding the tort of privacy further than would be possible under developments via a breach of confidence. Skoien J went on to indicate that in formulating the tort, a defence of public interest should be available.

Of more relevance to the Victorian jurisdiction, however, is the decision of Gillard J in Giller v Procopets, where it was stated that "although it has been advocated from time to time that there should be a cause of action based on failure to respect the privacy of a person, both English law and Australian law have not recognised a cause of action based upon breach of privacy20. This position represents a more traditional approach than that taken by Senior Judge Skoien in the Queensland District Court and arguably fails to recognise the developments under the head of breach of confidence in the United Kingdom, as well as the modern emphasis placed on the human rights that an action for privacy would ultimately protect. While Gillard J cited the High Court decision in Lenah Game Meats as "recognising that the cause of action in privacy is in a process of development21" he concluded that it had not developed so far as recognising an action for breach of privacy. Gillard J once again illustrates that where an action for breach of confidence is available on the facts, Australian courts will be more inclined to place the case under that head. This approach can be criticised as not only impeding the development of a privacy tort within its own right, but as weakening the existing law of confidence whereby its original elements are stretched beyond recognition to take account of more recent trends in thought and societal views as to what aspect of our lives should remain private.


As the United Kingdom cases illustrate, the rights accorded under a tort of privacy are very much in line with the growing ideology surrounding human rights. The situation in the English courts, however, demonstrates the increasing need to distinguish privacy issues from those of confidentiality. While post-Human Rights Act decisions in the United Kingdom have been required to take account of privacy issues, as espoused in the European Convention on Human Rights, this has generated blurred lines between an action in breach of confidence, and any possible developments towards a free-standing tort of privacy. Although the Australian High Court in Lenah Game Meats indicated that a tort of privacy was under development in this country, many of the decisions since the 2001 case have taken their cue from the United Kingdom and subsumed concepts of privacy under the actionable tort relating to confidence. This has impeded the development of privacy law in Australia. In any view of the situation, Senior Judge Skoien’s bold step, as he termed it, is indicative of an understanding that the principles relating to privacy cannot be done any justice through an attempt to give them effect under the head of breach of confidence.

While no privacy tort currently exists in Australia, this is an area with which the Australian public, and ultimately the Australian press, should be concerned. If indeed our courts do follow the impetus of the United Kingdom cases, privacy may well be recognised as a legal right in this country. The implications for the various arms of the press are obvious and are, as yet, in need of further exploration and clarification. This will undoubtedly occur on a case-by-case basis as new situations arise in which privacy issues will require delineation. The balancing tests between public interest, freedom of speech and the right to privacy will no doubt require further examination. It can only be hoped that in formalising such tests, the Australian courts recognise privacy rights as distinct from confidentiality principles. It is arguably only through comprehending privacy as a separate tort that its boundaries can be properly and cohesively identified and understood.


1. Callinan J at 335, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 (15 November 2001).

2. Phillipson, Gavin, Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act’, MLR 66:5 September 2003, p.758.

3. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479.

4. See the Privacy Act 1988 (Cth) and the Privacy Amendment (Private Sector) Act 2000 (Cth).

5. At 107.

6. At 42.

7. See for example, Lord Sedley in Douglas & ors v Hello! Ltd [2001] 2 WLR 992; [2001] 2 All ER 289 at 320.

8. Campbell v MGN Limited [2004] UKHL 22.

9. Lord Hope of Craighead at 125.

10. See Lord Woolf CJ in A v B plc [2002] EWCA Civ 337, [2003] QB 195, 202 at 4: "[Articles 8 and 10] have provided new parameters within which the court will decide, in an action for breach of confidence, whether a person is entitled to have his privacy protected by the court or whether the restriction of freedom of expression which such protection involved cannot be justified".

11. [2004] NZCA 34 (25 March 2004).

12. At 42

13. At 117.

14. At 148.

15. [2003] QDC 151 (16 June 2003).

16. Giller v Procopets [2004] VSC 113 (7 April 2004).

17. The situation in the United States differs greatly from that in common law jurisdictions. As early as 1960, Prosser and Keeton on the Law of Torts (5th ed (1984)) recognised that the tort of privacy was a complex of four distinct kinds of invasion: (1) intrusion upon the plaintiff’s seclusion or solitude, or into private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. This categorisation has been adopted in the United States Supreme Court (see, for example, Time Inc v Hill 385 US at 383 (1967) and Cox Broadcasting Corporation v Cohn 420 US 469 at 488 (1975)) and the Restatement of the Law Second, Torts (section 652A).

18. At 442.

19. At 444.

20. At 186.

21. At 187.

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.

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