Outside the statutory regime, Australians have limited recourse
to protect their privacy rights at common law. This is because,
unlike other common law countries, our Courts have not developed a
tort of invasion of privacy. For example, unlike the United States,
Australia does not have any express common law cause of action with
intrusion upon a person's seclusion or solitude, or into
his/her private affairs;
public disclosure of embarrassing private facts about a
publicity which places a person in a false light in the public
appropriation, for the perpetrator's advantage, of a
person's name or likeness.
Similarly, Australia does not recognise the extended concept of
breach of confidence as accepted in the United Kingdom in relation
to privacy rights.
However, the High Court in Australian Broadcasting
Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
overturned the long-standing position in Australia that the common
law provided no protection for personal privacy. This understanding
was based on comments made obiter in the High Court case of
Victoria Park Racing and Recreation Grounds Co Ltd v
Taylor (1937) 58 CLR 479. Lenah found the position
adopted in Victoria Park to be incorrect and that there was no
impediment preventing Australian Courts from creating a cause of
action for invasions of privacy. Indeed, Callinan J asserted:
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 the legislatures should be left to determine
whether provisions for a remedy for it should be
Since Lenah, only two lower Courts have recognised a tort of
invasion of privacy: Gross v Purvis  QDC 151 in the
District Court of Queensland and Doe v Australian Broadcasting
Corporation  VCC 281 in the Country Court of Victoria.
It remains unclear the likely direction of the future development
of the Australian common law with respect to privacy rights.
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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