Australia: Regulation Of The Right To Privacy: Keeping Things Quiet Could Become A Whole Lot Easier

As the internet continues to increase the speed and breadth of information sharing, the disclosure of information about friends, colleagues and public figures has become increasingly easy. It follows that violations of an individual's right to privacy is also on the rise.

On 14 August 2009, the NSW Law Reform Commission (Commission) released a report recommending the introduction of legislation dealing with invasion of an individual's privacy and providing mechanisms to protect individuals. This has ramifications for individuals and businesses in dealing with people's personal information and profile.

Who will be entitled to sue?

If the recommendations are introduced, an individual will be able to sue any person who invades the privacy that individual might reasonably be entitled to expect having regard to the public interest.

When determining whether an individual's privacy has been invaded, the Commission recommends that the following matters be taken into account.

• the nature of the invasion of the privacy
• the nature of the conduct and its effect on the health, welfare and emotional well-being of the individual
• the relationship between the individual and the wrongdoer
• the extent to which the individual has a public profile.

Introduction of the recommendations may provide the likes of Kate Ritchie and Sonny Bill Williams with a statutory cause of action against individuals who distribute details of their private lives captured on a mobile phone camera. Distributing a sex tape or disclosing details of an affair could also be caught by the proposed laws.

What defences are available to defendants?

An individual's privacy will not be invaded in the following circumstances.

• where the conduct was authorised by or under a NSW law or Commonwealth law
• where the conduct was done for the purpose of lawfully protecting a person or property
• where the publication of defamatory material attracts the defence of absolute privilege or fair report of proceedings of public concern
• where the publication of material is made to a person in circumstances where the publisher had an interest or legal, social or moral duty to disclose the information.

Examples could include publishing details of an NRL player's late night activities (unless those activities impact on the player's ability to perform his job), or unmasking the identity of illegal music downloaders.

What remedies are available to plaintiffs?

The Commission proposes that the Court be able to order any of the following.

• payment of compensation, including compensation of up to $150,000 for non-economic loss
• an order stopping the defendant from engaging in conduct that would invade the privacy of the plaintiff
• delivery up of any documents or other material that were obtained or made as a result of the invasion of the plaintiff's privacy.

The Invasion of Privacy report can be viewed here.

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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.