Recognising an action for breach of privacy in Australia

74.77 In the Issues Paper, Review of Privacy (IP 31), the ALRC asked whether a cause of action for breach of privacy should be recognised by the courts or the legislature in Australia.^[116]

74.78 There was general support for the recognition of a cause of action for breach of privacy in the submissions that addressed the question.^[117] A significant minority, however, expressed serious reservations.^[118] Comment on the question was more widespread in consultations, and the support for and against was similar to that evidenced in submissions.

74.79 The comments in the submission of the Centre for Law and Genetics are representative of the types of comments expressed by those who favoured the enactment of a statutory cause of action.

It is most surprising that the Australian courts have yet to develop common law or equitable principles for breach of privacy in Australia. Australia is becoming increasingly out of step with other common law jurisdictions in this regard. It may well be that the courts would be amenable to such a development, should the right case come before them. In the absence of common law or equitable protection, there is good justification for the development of legislation to fill the void.^[119]

74.80 In support of its view that a cause of action for breach of privacy should be recognised, AAMI noted:

International law is moving this way, thus it would be logical to include this concept. Social expectations are also moving in this direction, especially with the advent of the internet and digital technology. Preferred method is statutory, as it’s a lot easier for businesses to digest and apply.^[120]

74.81 The arguments raised by stakeholders against the enactment of a cause of action fell into the following categories:

• the privacy of Australians is adequately protected under the current regulatory regime;^[121]
• recognition of a cause of action for breach of privacy is best left to incremental development at common law through the courts;^[122] and
• a statutory cause of action for breach of privacy would tip the balance too heavily in favour of privacy rights for individuals at the expense of the free flow of information on matters of public concern,^[123] and the benefits to society flowing from artists who create art in public places, for example photographers.^[124]

74.82 Media organisations, in particular, were concerned that a statutory cause of action for breach of privacy would ‘be just another weapon in the arsenal of those in society who would seek to deflect public scrutiny of their possible malfeasance or non-feasance’.^[125] The Australian Press Council (APC) stated:

In the development of any proposal towards a putative cause of action for breach of privacy, the Commission needs to place a stress on the public interest as an appropriate criterion to be used to determine the balance between privacy rights for individuals and the public’s right to the free flow of information on matters of public concern.^[126]

Discussion Paper proposal

74.83 In DP 72, the ALRC proposed the introduction of a statutory cause of action for serious invasion of privacy, similar to that put forward by the NSWLRC.^[127] The ALRC proposed that liability would be established where there was a reasonable expectation of privacy and the act complained of was sufficiently serious to cause substantial offence to a person of ordinary sensibilities.^[128] The ALRC also proposed a non-exhaustive list of activities that could constitute an invasion of privacy, including:

• interference with an individual’s home or family life;
• where an individual has been subjected to unauthorised surveillance;
• where an individual’s correspondence has been interfered with, misused or disclosed; or
• where sensitive facts relating to an individual’s private life have been disclosed.^[129]

74.84 The proposed cause of action was subject to a number of limitations, these being that only natural persons should be allowed to bring an action and that the action should be restricted to intentional or reckless acts on the part of the defendant.^[130] Finally, the ALRC proposed that there should be no need to show proof of damage and that the cause of action should be subject to a number of exhaustive defences. These included that:

• the act or conduct was incidental to the exercise of a lawful right of defence of person or property;
• the act or conduct was authorised or required by or under law;
• disclosure of the information was of public interest or was fair comment on a matter of public interest; or
• disclosure of the information was privileged under defamation law.^[131]

Submissions and consultations

74.85 There was strong support for the enactment of a statutory cause of action for a serious invasion of privacy.^[132] The Office of the Privacy Commissioner (OPC) argued that such a development would

clearly establish that privacy is an important human right that warrants specific recognition and protection within the Australian community, and in a way that accords with the community expectations and understanding of the meaning of ‘privacy’. The Office reiterates its view that a dedicated privacy based cause of action could serve to complement the already existing legislative based protections afforded to individuals and address some gaps that exist both in the common law and legislation.^[133]

74.86 The Public Interest Advocacy Centre (PIAC) argued that ‘it is unacceptable that people who suffer flagrant invasions of their territorial or bodily privacy or the privacy of their communications have virtually no recourse under existing privacy laws’.^[134]

74.87 Privacy NSW also broadly supported the inclusion of a statutory cause of action, but suggested that the matters could be dealt with in one of the model Unified Privacy Principles (UPPs).^[135] Two stakeholders suggested that only those subject to the Privacy Act should be subject to the cause of action.^[136] This would mean that agencies and organisations that were exempt from the operation of the Privacy Act would be immune from civil liability under the cause of action.

74.88 Some stakeholders opposing the introduction of a cause of action asserted that adequate restrictions are already in place and the cause of action would impose further restrictions on those already subject to rules under the Privacy Act.^[137]The Law Council of Australia expressed the view that the existing federal co-regulatory scheme ‘consisting of the Privacy Act and relevant media industry codes of practice provides appropriate and adequate recourse to individuals who consider that a media organisation has interfered with their privacy’.^[138]

74.89 The Australian Bankers’ Association submitted that it was unclear how the cause of action would co-exist with the model UPPs:^[139]

A cause of action will open up the prospect of class actions and opportunities for litigation funders resulting in encouragement to litigate because the plaintiff is generally protected from an adverse costs order if the action fails.^[140]

74.90 The New South Wales Department of Corrective Services had no objection to the cause of action, as long as corrective services officers were able to carry out the functions, powers and duties conferred on them by Parliament. It suggested the addition of a defence that excludes law enforcement agencies from liability while carrying out their functions.^[141]

74.91 One of the key concerns raised in submissions was that placing privacy protection on a statutory footing would interfere with other rights and interests, especially the right to freedom of expression and freedom of the press.

74.92 It is important to keep in mind, however, that ‘freedom of expression’ and ‘freedom of the press’ are not synonymous—although the latter often facilitates the former. Professor Eric Barendt has written that:

Press freedom is parasitic to some extent on the underlying free speech rights and interests of readers and listeners, and the role which the press and other media play in informing them. It is not the same as the free speech argument, and that should be borne in mind when we consider how much weight should be attached to the freedom when it conflicts with the right to privacy which certainly is a fundamental human right.^[142]

74.93 While Barendt’s comments are couched in the language of ‘free speech rights’, which are expressly recognised in the United States Constitution, the underlying rationale applies equally in an Australian context. The result is that publication of personal information may constitute an invasion of privacy if the privacy interest asserted by the claimant outweighs the public interest in freedom of expression asserted by the defendant.

74.94 As discussed in Chapter 42, freedom of expression is not an absolute right. The law limits many forms of expression, including speech that is obscene, defamatory or vilifies certain groups of people.

74.95 The ALRC received a number of submissions from professional and amateur street artists who were concerned that the cause of action would prohibit street art and the taking of photographs in public places.^[143] The following is an example of the type of concern that was raised:

The way I achieve my art is by strolling through streets and cities, photographing people and situations that depict a narrative of life and the world we live in. I’d like to think that the work I do is neither invasive nor arrogant … but showing sides of life that happen every second of the day that many of us have become simply too busy to notice a lot of the time.

My ability to do this relies on the fact that as it stands, I can practically photograph anything that is in ‘public view’…^[144]

74.96 Media organisations also reiterated the concerns expressed in response to IP 31. The Herald and Weekly Times Pty Ltd (HWT) submitted that it is critical that journalists are able to watch, film, record and gather information without any further restrictions:

Clearly, the proposed laws will discourage journalists’ sources who use surveillance techniques to collect information in pursuit of uncovering or confirming a story of public concern. This will result in curtailing of the free flow of information and reducing the amount of stories the media will be able to uncover and reveal to the public.^[145]

74.97 The HWT also argued that

Similar to the balancing act required in establishing legislation for information privacy (resulting in the media exemption), questions regarding recognising an actionable right to personal privacy also requires consideration of the balance between the public interest in allowing the free flow of information to the public through the media and the public interest in adequately protecting an individual’s right to privacy.^[146]

74.98 The HWT submission offered a number of examples of stories that, in its view, would be in danger of remaining untold if the cause of action was enacted. Examples of current practices of journalists that could potentially constitute a serious invasion of privacy included:

• journalists knocking on the door of a person’s home unannounced to collect information for a story. For example, journalists will often contact relatives of victims of road accidents;
• investigative journalists conducting surveillance or interviews in researching a story; and
• ‘vox pops’—approaching someone in the street to ask him or her a question for the purpose of using his or her answer as an indicator of public opinion. Some types of questions asked may be considered to relate to ‘private matters’.^[147]

74.99 The APC did not support the introduction of a statutory cause of action for invasion of privacy. It noted that those countries in which a cause of action is available generally have either a constitutional or statutory protection for freedom of expression. The APC noted that it would not be appropriate to give effect to art 17 of the ICCPR without, at the same time, giving effect to art 19. It urged the ALRC to consider introducing the statutory protection of free speech as an ‘essential concomitant’ of any mechanism intended to increase the protection of personal privacy.^[148]

74.100 Concerns also were raised in submissions that the cause of action would chill marketing campaigns and, in particular, telemarketing and door-to-door sales.^[149] The ANZ submitted that in pursuing the recovery of debts and the enforcement of security rights, ‘it is difficult to avoid some direct interaction with home and family’.^[150]

74.101 Some questioned whether there could be a reasonable expectation of privacy when an individual is in a public place. For example, one stakeholder stated:

Privacy belongs in the home, in private. Once I step outside of my own home, others can see me for who I am and what I do. If I choose not to be seen, I will stay indoors.^[151]

74.102 Stakeholders were divided about whether the ‘use of another’s name, identity, likeness or voice’ should constitute an invasion of privacy. The APC was of the view that the notions of ‘false light’, damage to reputation and appropriation of likeness, which form part of the American Restatement formulation discussed above, should specifically be excluded from the scope of the cause of action.^[152]However, a different view was put forward by the Media, Entertainment and Arts Alliance^[153] and the AFL Players’ Association. They suggested that the cause of action should include protection for name, identity, likeness and voice. The AFL used the following example:

Anyone may distribute a collection of trading cards, videos, post cards, or calendars titled ‘Unauthorised Schoolie Week Beach Shots’ filled with candid photos of unsuspecting high school graduates in their bathing outfits. In that case it is not the schoolies’ interest in commercialising their personalities that begs protection, but their privacy and personal dignity …

Personality rights should not be denied privacy protection merely because a small segment of the community can derive a commercial benefit from such protection. No one should be permitted to intrude into an Australian’s personal sphere.^[154]

74.103 The Cyberspace Law and Policy Centre questioned whether ‘offence’ was the best way to describe the reaction required to trigger the cause of action, suggesting that ‘offence or distress’ would be more appropriate. The Centre submitted that this also would capture the situation where a defendant acted negligently (and therefore the claimant was not offended, but distressed).^[155]

74.104 The APC and another stakeholder suggested that proof of damage should be an element of the cause of action.^[156] While not supporting the cause of action, in principle, the APC stated:

it would not be appropriate to allow a plaintiff to bring an action seeking compensation where that plaintiff is unable to adduce evidence of having suffered either injury or economic loss. If the aim of the action is to prevent publication in anticipation of a possible breach of privacy it would be more appropriate to encourage negotiation or mediation between parties. To facilitate the bringing of actions by plaintiffs who cannot demonstrate damage would be to encourage speculative actions in instances where only trivial breaches have occurred.^[157]

Remedies

74.105 The APC disagreed with a number of the remedies proposed by the ALRC. In particular, it argued that the proposal to empower courts to order an account of profits as a remedy for breach of personal privacy was unworkable.

Where the defendant in a privacy action is a publisher or other media organisation, it would be impossible to estimate the quantum of profits that might be derived from the alleged privacy intrusion.^[158]

74.106 The APC also argued that injunctions could be exploited as a tool with which to obstruct freedom of expression:

injunctions to prevent or delay publication impact not only upon the media but also affect groups of concerned citizens who seek to expose issues that have the potential to significantly affect the community. Such injunctions risk distorting or obstructing democratic processes and preventing scrutiny and accountability of developers, influential business people and public office holders.^[159]

74.107 Concerns were raised about the inclusion of corrections and apologies in the remedies. In the APC’s view, the possibility of a court-ordered correction or apology would act as a disincentive for out of court settlement. Defendants, the APC argued, would lose the capacity to offer something that the courts could not offer. It suggested that giving the courts power to grant other remedies or orders that the court thinks appropriate would create uncertainty and discourage attempts at settlement.^[160]

74.108 In relation to apologies by the media, one individual commented that:

Where it has been proven that claims were incorrect, particularly where they were made in the press, mandatory orders should be issued requiring the guilty party to not only print a retraction or apology, but that it should be placed in the same place, in the same type face and on the same page as the original story. I often note how an apology in a newspaper is placed on a back page in small print in such a way that it is barely noticeable. If it was significant enough to command splashing across the front page or in the first few pages of a major tabloid, then any apology should receive the same importance.^[161]

Defences

74.109 The Arts Law Centre of Australia submitted that there should be an exemption or defence for:

• works and subject matter other than works (as defined in the Copyright Act) made for an artistic purpose or in the public interest; and

• fair dealing uses similar to those in the Copyright Act, such as criticism and review, parody or satire, reporting the news, and research and study.^[162]

74.110 The APC also recommended that the following should be included as defences to the cause of action:

• express or implied consent;
• the information is already in the public domain;
• where a person’s privacy only is breached incidentally (for example, where the person photographed was in the background of a photo taken at a beach);
• the disclosure or publication was made for the purpose of rebutting an untruth made by the claimant; and
• where a journalist or publisher has given a fair report of court proceedings.^[163]

Children

74.111 Youthlaw supported the introduction of a statutory cause of action for a serious invasion of privacy, but raised concerns about the legal capacity of children and young people to pursue privacy claims. Currently, children and young people need a litigation guardian appointed to bring a privacy claim. Youthlaw recommended that, where a young person is deemed to have capacity, he or she should be able to instruct a lawyer without the need for a litigation guardian.^[164]