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
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
What defences are available to defendants?
An individual's privacy will not be invaded in the following
where the conduct was authorised by or under a NSW law or
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
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
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
The Invasion of Privacy report can be viewed here.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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”
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).