Australia: Whipping Up A Tort: Actions Based On Privacy

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 legislatures should be left to determine whether provisions for a remedy for it should be made.¹

The above quotation is a small insight into the debate that has surrounded the development of the tort of privacy, both in Australia and other common law jurisdictions, during the previous decade. With courts often deferring to the role of Parliament in fully developing the ‘right to privacy’ concept, privacy rights in Australia have tended to develop under breach of confidence principles. This has left the law in a position where the tort of privacy has been accepted as practically existing, although no free-standing principles have been enunciated. As this paper will illustrate, common law countries have followed a relatively similar path in this field, with countries such as New Zealand going as far as creating a statutory right to privacy, while the United Kingdom and Australia have all but established the tort. The position in Australia as it currently stands is that while a right to privacy more or less exists, it represents a ‘very thorough reworking of the action in confidence into a privacy remedy in all but name’.²

As many cases during the 1990s have indicated, it has been assumed that as a result of the decision in Victoria Park Racing v Taylor³ there is no actionable right to privacy in Australia. Relevant Australian legislation has stopped short of enacting an enforceable statutory right to privacy⁴, arguably as a result of the decision in Victoria Park, which was thought to clearly stamp out the cause of action. Australian Broadcasting Corporation v Lenah Game Meats can be seen as a seminal case, often cited by courts in the United Kingdom as containing not only an indication that a tort of privacy may exist in common law countries, but also for Gleeson J’s enunciation of what appears to be a test as to when the right to privacy can be evoked. In this case, both Gummow and Hayne JJ stated in no uncertain terms that "Victoria Park does not stand in the path of the development of such a cause of action"⁵. In stating that the case does not stand for the proposition that there is no identified tort of privacy in this country, the path has been left open for the development of such a tort.

The test as stated by Gleeson J in Lenah Game Meats, that "disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities"⁶ is in keeping with the reasonableness requirement apparent in many legal tests. However, the court did not ultimately apply this test in Lenah, as the facts of the case did not present themselves as facts applicable to an action in privacy. The relevant entity was a corporation, and although it was stated that United Kingdom legislation recognises the possibility that a corporate body could invoke a breach of privacy argument, the same could not be said in Australia. As Gleeson J indicated, a tort of privacy would be based on the human rights of autonomy and dignity; rights which are seemingly out of place when applied to a corporation.

Lenah Game Meats also indicates that where available, courts will rely on an action in breach of confidence. Breach of confidence can be seen as a flexible cause of action in that it has continually expanded to account for changes in societal values, behaviour, and modern technology. Many cases have now recognised that there is no longer the need to establish a relationship of trust and confidence.⁷ It is similarly recognised that a photographic image, whether illegally or improperly taken or obtained, where the image depicted is considered private, is considered confidential information. As cases such as Douglas v Hello! and Campbell v MGN Limited⁸ have indicated, this has an enormous implication on the kinds of information and images that members of the press may publish and circulate.

The most recent case to come out of the United Kingdom that has addressed these issues is that of Campbell v MGN in the House of Lords, an appeal from an earlier decision that held that the Mirror could publish photographs of Naomi Campbell outside a Narcotics Anonymous meeting, along with details of her treatment to combat drug addiction. The appeal was allowed on the basis that "there was an infringement of Miss Campbell’s right to privacy that cannot be justified".⁹ While it was admitted that the Mirror had the right to publish information concerning the fact that Miss Campbell was a drug addict, this was only on the basis that she had previously asserted to the press, on numerous occasions, that she, unlike many models in her position, had managed to avoid the temptations of drugs. The Mirror was therefore entitled to publish information that set the record straight and indicated that she had in fact been lying. However, the inclusion of the photographs, which had been taken without her knowledge or consent and depicted her hugging other members of Narcotics Anonymous outside a venue where a session had taken place, was considered to be an invasion and to outweigh the right to freedom of expression, as argued by the defendants. A distinction was drawn by Lord Hope of events that are captured in a public place, and an event which, although it may occur in a public place, depicts one or more people, the true subject of the photograph. In the latter instance, as was the case here, the public nature of Miss Campbell’s actions was considered to be a mere background to the actual information conveyed in the photograph.

The situation in the United Kingdom differs from that in Australia in that courts in the UK must endeavour to undertake a balancing act between the rights of the common law, and the rights as espoused through the Human Rights Act 1998 and the European Convention on Human Rights. By incorporating the elements of the Human Rights Act and the ECHR into case law, judges have in effect broadened the scope of breach of confidence actions to legitimately include actions against breaches of privacy, a right now protected through the Convention and Human Rights Act.¹⁰ This has therefore led to the expanding of confidence actions to include privacy issues, while all the while avoiding the explicit need to develop a tort of privacy in its own right.

This is arguably an unsatisfactory position as the principles behind confidence actions in fact differ from those at the base of an action in privacy. As already mentioned, the element that there be in existence a relationship of confidence has been more or less done away with in more modern times in order to encompass the situation where a persons whose right to privacy is encroached upon has no relationship with, for example, the photographer who surreptitiously and unknowingly takes their photograph and then sells it to a magazine. Actions in confidence have traditionally been built upon the requirements of a fiduciary relationship, information that is by nature confidential, and an understanding that that information has been imparted in circumstances which give rise to an obligation of confidence. Privacy, on the other hand, can be seen as a basic human right stemming from the right to autonomy and personal dignity. It is surely therefore necessary to consider this cause of action as a right in its own form in order to develop its parameters accordingly. Arguably, much of the English case law has failed to do this. While courts in the United Kingdom have recognised that privacy is a right deserving of protection under the common law, they are yet to set out the elements of such a right, or any legal tests that may be of use in ascertaining its existence. Instead, the English courts invariably cite Gleeson J in Lenah as espousing the test for invasion of privacy, as outlined above.

The tort of privacy as it exists in New Zealand has shared a similar path as in other common law countries. In Hosking & Hosking v Simon Runting & Anor,11 where pictures of a celebrity couple’s twin children were at issue, Gault and Blanchard JJ both recognised the distinction between actions in confidence and privacy, stating that there now seems to be two distinct versions of the tort of breach of confidence: one is the traditional cause of action applicable where information has been imparted in confidence, and the other "gives rise to a right of action in respect of the publication of personal information of which the subject has a reasonable expectation of privacy, irrespective of any burden of confidence, but only where the publication is or is likely to be highly offensive to a reasonable person".¹² The Court of Appeal in New Zealand found that a law of privacy had been recognised in various other common law jurisdictions, although it had been found so under the head of breach of confidence. The Court went further than the English courts in outlining the elements of a tort of privacy and stating that the scope of the cause of action should be left to incremental development by future courts. The Court stated that there were two fundamental requirements for a successful claim for interference with privacy, being¹³:

1. The existence of facts in respect of which there is a reasonable expectation of privacy; and
2. Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.

While the court stated that aspects of privacy would often be protected under heads of nuisance or trespass, they acknowledged that this would not always be the case. The Court ultimately held that "the way in which the law has been developing through the decisions of the High Court should not be interrupted", citing as reasons the fact that this is so in the United Kingdom, albeit that the developments have been under the title of breach of confidence, and that it also avoids the deterioration of the elements for an action of breach of confidence¹⁴.

The cases that have dealt with this question in Australia since Lenah Game Meats leave the issue of whether Australia in fact recognises a tort of privacy unresolved. While a single judge in District Court of Queensland has stated plainly that such a tort exists in Grosse v Purvis¹⁵, Gillard J in the Supreme Court of Victoria has held that the common law in Australia does not recognise the tort of privacy¹⁶. Both cases concerned rather elaborate factual scenarios, encompassing love affairs and issues of harassment. Grosse related to an invasion of privacy by a former lover, while the privacy issues in Giller centred around the showing of a video recording of the plaintiff and defendant engaged in rather private and personal acts. In Grosse v Purvis, the plaintiff was ultimately awarded $178,000 in her action for damages for breach of privacy. Senior Judge Skoien drew upon the position in the United States¹⁷, as well as that in the United Kingdom, in order to reach his conclusion that "it is a bold step to take, as it seems, the first step in this country to hold that there can be a civil action for damages based on the actionable right of an individual person to privacy. But I see it as a logical and desirable step. In my view there is such an actionable right"¹⁸. Much like the New Zealand Court of Appeal, Skoien J outlined the elements of the tort, although in far more detail. In his view, the essential elements were¹⁹:

1. a willed act by the defendant,
2. which intrudes upon the privacy or seclusion of the plaintiff,
3. in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities,
4. and which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.

These elements take the tort further than the unauthorised publication of private information or photographs into the realm of personal behaviour that intrudes on another’s privacy and is likely to offend, thus expanding the tort of privacy further than would be possible under developments via a breach of confidence. Skoien J went on to indicate that in formulating the tort, a defence of public interest should be available.

Of more relevance to the Victorian jurisdiction, however, is the decision of Gillard J in Giller v Procopets, where it was stated that "although it has been advocated from time to time that there should be a cause of action based on failure to respect the privacy of a person, both English law and Australian law have not recognised a cause of action based upon breach of privacy²⁰. This position represents a more traditional approach than that taken by Senior Judge Skoien in the Queensland District Court and arguably fails to recognise the developments under the head of breach of confidence in the United Kingdom, as well as the modern emphasis placed on the human rights that an action for privacy would ultimately protect. While Gillard J cited the High Court decision in Lenah Game Meats as "recognising that the cause of action in privacy is in a process of development²¹" he concluded that it had not developed so far as recognising an action for breach of privacy. Gillard J once again illustrates that where an action for breach of confidence is available on the facts, Australian courts will be more inclined to place the case under that head. This approach can be criticised as not only impeding the development of a privacy tort within its own right, but as weakening the existing law of confidence whereby its original elements are stretched beyond recognition to take account of more recent trends in thought and societal views as to what aspect of our lives should remain private.

As the United Kingdom cases illustrate, the rights accorded under a tort of privacy are very much in line with the growing ideology surrounding human rights. The situation in the English courts, however, demonstrates the increasing need to distinguish privacy issues from those of confidentiality. While post-Human Rights Act decisions in the United Kingdom have been required to take account of privacy issues, as espoused in the European Convention on Human Rights, this has generated blurred lines between an action in breach of confidence, and any possible developments towards a free-standing tort of privacy. Although the Australian High Court in Lenah Game Meats indicated that a tort of privacy was under development in this country, many of the decisions since the 2001 case have taken their cue from the United Kingdom and subsumed concepts of privacy under the actionable tort relating to confidence. This has impeded the development of privacy law in Australia. In any view of the situation, Senior Judge Skoien’s bold step, as he termed it, is indicative of an understanding that the principles relating to privacy cannot be done any justice through an attempt to give them effect under the head of breach of confidence.

While no privacy tort currently exists in Australia, this is an area with which the Australian public, and ultimately the Australian press, should be concerned. If indeed our courts do follow the impetus of the United Kingdom cases, privacy may well be recognised as a legal right in this country. The implications for the various arms of the press are obvious and are, as yet, in need of further exploration and clarification. This will undoubtedly occur on a case-by-case basis as new situations arise in which privacy issues will require delineation. The balancing tests between public interest, freedom of speech and the right to privacy will no doubt require further examination. It can only be hoped that in formalising such tests, the Australian courts recognise privacy rights as distinct from confidentiality principles. It is arguably only through comprehending privacy as a separate tort that its boundaries can be properly and cohesively identified and understood.

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.