- The criteria that are proposed for the new cause of action clearly reflect the criteria that have been applied by the UK courts in deciding these new cases for invasion of privacy.
On 11 August Senator Faulkner released the Australian Law Reform Commission's final review of privacy law, "For your information: Australian Privacy Law and Practice". The review's 295 recommendations included a recommendation for the creation of a new cause of action in Australia for invasion of privacy. The recommendation has given rise to speculation as to what such a cause of action might look like, who it might impact and how similar causes of action have evolved in other jurisdictions.
A statutory cause of action for invasion of privacy - the recommendation
While the Privacy Act currently contains a provision which allows a person to complain to the Privacy Commissioner about a practice that may be an interference with privacy, there is no specific statutory cause of action in Australia for invasion of privacy (albeit that some common law developments have left open the possibility of the evolution of the tort of invasion of privacy in Australia).
Following considerable debate covering the issues of freedom of speech and the merits of privacy protection, the ALRC has recommended that Commonwealth legislation provide for a statutory cause of action for a serious breach of privacy where an individual can show that:
- they had a reasonable expectation of privacy in the circumstances; and
- the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities.
In determining whether an individual's privacy has been interfered with, it is intended that the court must consider whether the public interest in maintaining privacy outweighs a greater public interest in publication.
Typical circumstances in which a person's privacy may be found to have been breached include where there has been an interference with an individual's home or family life, an individual has been subjected to unauthorised surveillance, sensitive facts about an individual's private life has been disclosed or an individual's correspondence or private communication has been interfered with. Defences would apply if the act or conduct was required or authorised by law or privileged under the laws of defamation.
When could it happen?
Senator Faulkner stated that given the large number of recommendations, the Government will consider the ALRC report in two stages as follows:
- the first stage of the Government response will focus on the recommendations relating to the Unified Privacy Principles, health and credit reporting regulations and improving education about the impact on privacy by new technologies;
- the second stage of the Government response will consider the recommendations relating to the removal of exemptions, data breach notices and the new cause of action for breach of privacy.
It seems clear however that the government is not entirely persuaded of the need for the new cause of action and is not rushing to implement it.
The UK experience
The United Kingdom's common law system is similar to Australia's. Prior to the suggestion of legislative reform in the ALRC's report, some Australian courts had indicated a willingness to take steps towards the evolution of a cause of action for breach of privacy. However, such common law developments have been underway for sometime in the United Kingdom, where the action of breach of confidence has become a vehicle for privacy-style claims. The various approaches taken by the courts in those cases and the criteria the courts have used to ascertain a breach of confidence may provide an indication of what may be in store for Australia, should legislation be enacted to provide for a statutory cause of action in the form currently proposed.
Below we look at several of the more prominent cases that have arisen in this context, all of which focus on the expectation of privacy and the balance that must be stuck between the entitlement to privacy and the public interest in freedom of speech.
Campbell v MGN
This is one of the first significant privacy decisions in the UK (an earlier action had been launched a couple of years earlier by Michael Douglas and his wife Catherine Zeta-Jones in relation to publication of their wedding photos). The Campbell case arose from a series of articles the Mirror published about the supermodel Naomi Campbell in February 2001. The first article was titled "Naomi - I am a drug addict" which included a photograph of Ms Campbell wearing jeans and a baseball cap with a caption indicating that the photograph was taken outside a Narcotics Anonymous ("NA") meeting. The photograph was taken covertly by a Mirror photographer.
Ms Campbell instituted proceedings for damages resulting from breach of confidence as well compensation under the UK Data Protection Act. Five Law Lords heard the appeal and the Court split 3:2 in favour of awarding damages to Ms Campbell.
The majority found that damages were available to Ms Campbell on the basis of breach of confidence. The majority agreed with the minority that Ms Campbell's celebrity status was a relevant consideration to the issue of breach of confidence but considered that a reasonable person in Campbell's shoes would find publication of details about NA and the images to be distressing and offensive, and that publication could also damage the effectiveness of the NA therapy. In short, in the circumstances, Ms Campbell had a reasonable expectation of privacy.
While there was a legitimate public interest in the truth about Campbell's drug addiction (she had previously denied using drugs), there was not a compelling need for the public to know that she was attending NA, nor for the story to be accompanied by a picture of Campbell outside NA. The public interest must be balanced against the harm that might be done by interfering with the right to privacy.
In reaching this conclusion, the majority understood that a balance had to be struck between the right to privacy and the right to freedom of expression, as found in Articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms.
On 30 March 2008 the tabloid newspaper News of the World ("NOTW") published an article under the headline "F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS", accompanied by some images. The article was about Max Mosley, the President of the Federation Internationale d l'Automobile, or FIA, which is the governing body of Formula One racing. The images depicted Mosley engaging in sado-masochistic-type behaviour with five prostitutes and the article describes Mosley as a secret sex pervert who had engaged in a Nazi death camp-styled sex game. The same stories, and images and some video footage relating to the story were also published on the NOTW website.
The story concerned a role play event which happened on 28 March 2008. The event was secretly filmed by a woman who took part in the event. A secret camera had been supplied by NOTW, which also offered her money for the film and the story.
Mosley sued NOTW in the (English) High Court for breach of confidence and unauthorised disclosure of personal information infringing his right of privacy. On 24 July 2008 Justice Eady found for Mosley and awarded him Ł60,000 in damages.
Justice Eady considered that Mosley had a reasonable expectation of privacy and that the secret recordings and publications concerning the events were a breach of his privacy. He said that generalisations are best avoided but that it's well established that someone engaging in sexual activity is entitled to some degree of privacy: people's sex lives are their own business. This entitlement was found to apply to public figures. Justice Eady considered that photographs and video recordings of someone's private life are particularly intrusive and that there might be circumstances where there may be a public interest in certain events but that it doesn't necessarily follow that publishing film and pictures is a reasonable method of conveying the information.
News claimed that any expectation of privacy was outweighed by a public interest in Mosley's Nazi-themed behaviour. Justice Eady accepted that if Mosley had engaged in a Nazi-themed role play, then because of his position with FIA, there might be a public interest in revealing his behaviour. Thus the key issue was whether or not the events of 28 March in fact had a Nazi theme.
News identified ten aspects of the events shown in the video that reflected a Nazi theme, including the costumes, the use of German language, and activities like beatings, shaving, and a mock medical examination. Justice Eady did not accept that the video portrayed a Nazi theme. He accepted Mosley's evidence that the indicia identified by News were referable to a standard S&M prison-themed scenario. News also argued that the depravity and adultery of the events gave rise to a public interest. Justice Eady also rejected this argument, considering that the private conduct of adults is no one else's business, regardless of whether a relationship is adulterous or perceived as unconventional or perverted.
With no public interest to outweigh his privacy rights, Mosley was entitled to compensation for the intrusion.
JK Rowling's son
In May this year, the author of the Harry Potter books, JK Rowling (under her married name of Joanne Murray) won the right to carry on an action to protect her son's privacy in Murray v Big Pictures Limited.
The High Court had earlier struck out an action brought by Murray on behalf of her son David who had been photographed (along with his parents Joanne and David Murray) walking in an Edinburgh street. Big Pictures Limited then published the photograph in the Sunday Express magazine. Murray appealed the strike-out.
In deciding that David had a case to be heard, the Court of Appeal considered that it was arguable that if children of parents who are not in the public eye could reasonably expect not to have photographs of themselves taken covertly and published in the media, a child of a famous parent could have the same expectation. The High Court was directed to try the action, unless it could be settled.
A question remains as whether any of the fact scenarios from the UK cases would fall within the terms of any cause of action as it was ultimately enacted in Australia. However, there are clear parallels between the reasoning in those cases and the recommended elements of the proposed cause of action. In particular, the criteria that are proposed for the new cause of action, namely, that a person have a reasonable expectation of privacy in the circumstances and that the act complained of is highly offensive to a reasonable person of ordinary sensibilities, appear to clearly reflect the criteria that have been applied by the UK courts in deciding these new cases for invasion of privacy.
Of course, the criteria specified in any statutory cause of action are going to have to be ruled upon by judges and their perceptions of the need to balance freedom of speech and the need for privacy will be of importance. Australian judges may consider that public figures have a reduced expectation of privacy even in relation to their personal lifes or that people who willingly and publicly share information about themselves cannot be said to have a reasonable expectation of privacy in relation to such information.
Interestingly, in a recent address to the National Press Club, the then Chief Justice of the High Court, Murray Gleeson, stated that he had previously written in a judgment that there seemed to be certain things which were self-evidently private, but that he was not sure about that anymore when one considered the willingness of people in modern life, using modern means of communication (think social networking sites and mobile phones) to share information about themselves publicly.
While controversies about whether we need more or less protection of our privacy are surely set to continue, and the Government is not rushing to enact the cause of action, it seems clear, that for better or worse, Australians will, at some point, have to contend with a cause of action for invasion of privacy.
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.