In May 2007, the New South Wales Law Reform Commission released a Consultation Paper entitled 'Invasion of Privacy'. The Commission was asked to investigate and report on whether existing legislation in New South Wales provides an effective framework for protection of privacy of an individual, and to consider the desirability of:
uniform privacy protection principles across Australia;
a consistent legislative approach to privacy across New South Wales legislation; and
introducing a statutory tort of privacy in New South Wales.
Having considered approaches to privacy in other countries, the Commission has recommended the introduction of a statutory tort of privacy in New South Wales. The Commission has sought submissions on the desirability of such a tort, and of the elements relating to the cause of action and possible defences.
If a statutory tort of privacy is introduced, the Commission's preferred approach is that the statute should refer to a general action for breach of privacy, and contain a non-exhaustive list of examples of the type of conduct that may constitute a breach of privacy.
Examples of privacy violations listed by the Commission include:
to disclose information or material obtained as a result of surveillance; and
to use, with the intention to exploit, the name, likeness or voice of an identifiable individual for profit or gain without that person's consent.
The consultation paper also looks at possible defences to the action. Defences considered include:
consent (express or implied);
that the information was in the public domain; and
publication is in the public interest.
The introduction of a statutory tort of privacy would have significant implications for businesses, and in particular for media organisations. It would also create difficulties with compliance, due to the fact that New South Wales would be the only state in Australia with a statutory tort of privacy.
In an environment where all businesses actively use the internet and the state and territory borders are largely irrelevant to businesses, as far as communications go, such legislation would have a wide reaching effect on the entire business sector.
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