Right to personal privacy—developments in Australia and elsewhere

74.16 Common law and legislative developments in Australia and other comparable overseas jurisdictions cast light on the policy choices available for reform in this area. Of particular interest are the statutory expressions of the tort of invasion of privacy in the United States, some of the provinces of Canada^[21] and the Privacy Bill considered by the Irish Parliament.^[22] Common law developments—in the UK, New Zealand and Australia—of the test to determine what is considered ‘private’ for the purpose of determining liability for a breach of privacy are also of interest.

Statutory models

United States

74.17 In 1960, Professor William Prosser surveyed American case law and found not one tort protecting privacy interests but ‘a complex of four’.^[23] The Second Restatement of the Law, Torts^[24] has adopted Prosser’s classification and provides for privacy tort protection where:

1 One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person;

2 One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy;

3 One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public;

4 One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.^[25]

74.18 The privacy torts are subject to the same defences that apply in the United States to defamation.^[26] Such defences include: an absolute parliamentary and court privilege; consent; and conditional privileges for other activities, such as reporting public proceedings and reasonable investigation of a claim against a defendant.^[27]

74.19 The privacy torts have proved to be of limited effect, due in no small part to the existence of a constitutionally entrenched right to a free press. If the subject is newsworthy, and the newsworthy event occurs in a public place, privacy protection tends to take a back seat to the First Amendment protection of freedom of the press.^[28] The concept of ‘newsworthy’ in the United States appears to be broader than the concept of ‘public interest’—and, in particular, the right to freedom of expression—discussed below, applied by the UK courts in privacy cases.

74.20 The State of California has attempted to provide some additional protection, in particular for celebrities, through the enactment of a cause of action for physical invasion of privacy. This applies

when the defendant knowingly enters on to the land of another without permission or otherwise commits a trespass in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person.^[29]

74.21 To address the problems associated with an evolving technological environment, § 1708.8 of the California Civil Code also establishes an action for constructive invasion of privacy when

the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or other familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used.^[30]

74.22 The legislation has been in force since 1998,^[31] and the provision’s teeth are found in the penalties that apply for committing the invasion, constructive invasion or assault. The penalties include up to three times the amount of general and special damages (‘treble damages’) proximately caused by the invasion, constructive invasion or assault; punitive damages; and possible forfeiture of any proceeds or consideration obtained.^[32] Those that direct, solicit, actually induce or cause another person to commit such an assault may also be liable.^[33] Whether the legislation survives a constitutional challenge remains to be seen.^[34]

Canada

74.23 An individual’s right to privacy has received statutory protection in four provinces in Canada.^[35] Generally, the legislation provides that ‘it is a tort, actionable without proof of damage, for a person wilfully and without claim of right, to violate the privacy of another person’.^[36] The legislation also stipulates a number of general defences, including consent, exercise of a lawful right of defence of person or property, acts or conduct authorised or required by law, privilege and fair comment on a matter of public interest.^[37] Remedies include damages, an injunction, an account for profits and an order for the delivery up of material.^[38]

74.24 While the Canadian Charter of Rights and Freedoms 1982^[39] does not specifically guarantee a right to privacy, the Supreme Court of Canada has interpreted the right in s 8 to be secure against unreasonable search and seizure to include a reasonable expectation of privacy in relation to governmental acts.^[40] The province of Quebec has guaranteed ‘a right to respect for … personal life’ in the Quebec Charter of Human Rights and Freedoms.^[41]

Ireland

74.25 In 2006, the Irish Parliament considered the Privacy Bill 2006 which would have established a ‘tort of invasion of privacy’ in Irish law. Under the Bill, the tort would have been actionable without proof of damage, but limited to deliberate and intentional conduct, without lawful authority.^[42] The Bill stated that a person is entitled to privacy that is ‘reasonable in all the circumstances having regard to the rights of others and to the requirements of public order, public morality and the common good’.^[43]

74.26 As noted below, the Bill was criticised by journalists as limiting the right to freedom of the press and inhibiting investigative journalism.^[44] In 2007, it was reported that the Irish Government had decided not to proceed with the Bill.^[45]

Common law developments

United Kingdom

74.27 The developments in the UK have been influenced in recent years by the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (UK) (HRA 1998). The ECHR contains a right to private and family life, home and correspondence in art 8.^[46] The HRA 1998 incorporates (to some extent) the ECHR into the domestic law of the UK.^[47] The HRA 1998 came into force in October 2000.^[48]

74.28 There is no freestanding right to privacy in the UK. The courts repeatedly have stated that ‘English law knows no common law tort of invasion of privacy’.^[49] Instead, the cause of action for breach of confidence has been extended to encompass misuse or wrongful dissemination of private information.^[50] Extensive expansion of the law in this area has occurred in recent years.

74.29 The formulation of the cause of action for breach of confidence was set out in Coco v A N Clark (Engineers) Ltd.^[51] To establish the cause of action, at that time: the information must have had the necessary quality of confidence; the information must have been imparted in circumstances giving rise to an obligation of confidence; and there must have been unauthorised use of that information to the detriment of the party communicating it.

74.30 The evolution of the cause of action for breach of confidence was summarised by Lord Phillips MR in Douglas v Hello!

Megarry J in Coco v A N Clark identified two requirements for the creation of a duty of confidence. The first was that the information should be confidential in nature and the second was that it should have been imparted in circumstances importing a duty of confidence. As we have seen, it is now recognised that the second requirement is not necessary if it is plain that the information is confidential, and for the adjective ‘confidential’ one can substitute the word ‘private’. What is the nature of ‘private information’? It seems to us that it must include information that is personal to the person who possesses it and that he does not intend shall be imparted to the general public. The nature of the information, or the form in which it is kept, may suffice to make it plain that that the information satisfies these criteria.^[52]

74.31 In Ash v McKennitt, the English Court of Appeal recognised that a

feeling of discomfort arises from the action for breach of confidence being employed where there was no pre-existing relationship of confidence between the parties, but the ‘confidence’ arose from the defendant having acquired by unlawful or surreptitious means information that he should have known he was not free to use …^[53]

74.32 The court went on to note that, ‘at least the verbal difficulty … has been avoided by the rechristening of the tort as misuse of private information: per Lord Nicholls of Birkenhead in Campbell’.^[54]

74.33 The House of Lords decision in Campbell v MGN Ltd is the leading authority on the scope of what subsequently has been termed, in the Court of Appeal hearing in Douglas, as the ‘the cause of action formally described as breach of confidence’.^[55]

74.34 Model Naomi Campbell brought proceedings in breach of confidence against Mirror Group Newspapers in relation to a newspaper article which stated that she was a drug addict and that she was attending Narcotics Anonymous. The article was accompanied by a photograph of Campbell on a public street outside a Narcotics Anonymous premises. Campbell succeeded in her claim at first instance, however, this was overturned in the Court of Appeal. The case was taken to the House of Lords.

74.35 Campbell conceded early on in proceedings that the newspaper was entitled to publish the fact that she had a drug problem and that she was receiving treatment. She conceded this aspect of the publication because she had previously asserted the fact that, unlike other models, she did not abuse drugs and, therefore, disclosure was in the public interest.

74.36 The House of Lords was left to consider whether Campbell’s treatment, the fact that she was attending Narcotics Anonymous and the photograph constituted an invasion of her privacy. The House of Lords found, by a 3:2 majority, that those features did constitute an invasion of her privacy. Reporting that her treatment was being provided by Narcotics Anonymous and the details of that treatment ‘went significantly beyond the publication of the fact that she was receiving therapy or that she was engaged in a course of therapy with [Narcotics Anonymous]’.^[56]

European Convention on Human Rights

74.37 Developments in the UK regarding an action for breach of privacy must now be discussed with reference to the human rights legislation in force in the European Union. The ECHR came into force in the UK in October 2000.^[57] Since that time, the courts in the UK have been influenced by art 8 of the Convention,^[58] and by the Strasbourg jurisprudence interpreting this article.^[59]

74.38 When analysing whether the elements of the tort have been established in a case of unlawful publication of private information (which, to date, constitutes the majority of the case law in the UK), the court engages in a two-part balancing exercise. The court first ascertains whether the information is private ‘in the sense that it is in principle protected by article 8’. If the answer is ‘yes’, the court then asks: ‘in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10’? ^[60]

74.39 Professor Gavin Phillipson has summarised the development in Campbell as follows:

The House recognised that the first port of call in determining whether there are facts worthy of protection should be the Article 8 case law and, secondly, that the test of high offensiveness was therefore not to be used as a threshold test, which had to be satisfied in all cases, but rather only as a tie-breaker, to determine marginal or doubtful cases and to be used to help determine the weight or seriousness of the privacy interest when balancing it against the competing interest in publication.^[61]

74.40 The courts in the UK have avoided setting too high a bar when determining what ‘private’ means within the context of art 8. When considering the first limb of the test, the person alleging a breach of art 8 must establish that interference with private life was of ‘some seriousness’ before the article is engaged.^[62]

74.41 It is unclear whether ‘some seriousness’ equates to, or is lower than, the standard of disclosure that is ‘highly offensive to a reasonable person of ordinary sensibilities’, propounded in cases such as Lenah Game Meats.^[63] In Campbell, Nicholls LJ warned that the ‘highly offensive’ formulation

should be used with care for two reasons. First, the ‘highly offensive’ phrase is suggestive of a stricter test of private information than a reasonable expectation of privacy. Second, the ‘highly offensive’ formulation can all too easily bring into account, when deciding whether the disclosed information was private, considerations which go more properly to issues of proportionality; for instance, the degree of intrusion into private life, and the extent to which publication was a matter of proper public concern. This could be a recipe for confusion. ^[64]

74.42 Hope LJ noted that the threshold test is ‘what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity’.^[65] Baroness Hale LJ suggested a similar formulation.^[66]

74.43 Once the information is identified as ‘private’, the court must then ‘balance the claimant’s interest in keeping the information private against the countervailing interest of the recipient in publishing it’.^[67] This balancing test is contextual—that is, determined by reference to the facts of the particular case. The principles formulated by the trial judge in McKennitt v Ash,^[68] and endorsed by the English Court of Appeal, to determine the second limb of the test are:

i) Neither article [8 nor art 10 of the ECHR] has as such precedence over the other.

ii) Where conflict arises between the values under Articles 8 and 10, an ‘intense focus’ is necessary upon the comparative importance of the specific rights being claimed in the individual case.

iii) The court must take into account the justifications for interfering with or restricting each right.

iv) So too, the proportionality test must be applied to each.^[69]

74.44 Shortly after the decision in Campbell,the European Court of Human Rights decided Von Hannover v Germany,^[70] which concerned a claim brought by Princess Caroline of Monaco on the basis that certain decisions of the German courts had infringed her right under art 8 to respect for her private life.

74.45 A number of photographs of Princess Caroline had been published in German magazines. The photographs consisted of images of the Princess with her children; with a male friend at a restaurant; on holiday and engaged in sporting activities with her husband; and at the Monte Carlo Beach Club, where she was dressed in a swimsuit. One of the beach club images showed the Princess falling over.

74.46 The Princess brought a number of claims for injunction against the media in the German courts. The German Federal Court granted her relief in respect of the restaurant photographs and photographs of the Princess and her children. The European Court of Human Rights, therefore, was asked to uphold her right to privacy in relation to the photographs of the Princess on holiday, engaged in sporting activities with her husband and at the Monte Carlo Beach Club.

74.47 In Von Hannover,the European Court of Human Rights established the benchmark from which an analysis of the application of art 8 must proceed. The Court recognised the ‘fundamental importance of protecting private life from the point of view of the development of every human being’s personality’.^[71] The Court noted that the protection ‘extends beyond the private family circle and also includes a social dimension … anyone, even if they are known to the general public, must be able to enjoy a “legitimate expectation” of protection of and respect for their private life’.^[72]

74.48 It is clear from the reasoning in Von Hannover that the Court took into account—to use the words found in the Terms of Reference for this Inquiry^[73]—‘the need of individuals for privacy in an evolving technological environment’. The Court stressed the fact that ‘increased vigilance in protecting private life is necessary to contend with new communication technologies which make it possible to store and reproduce personal data’.^[74]

74.49 The Von Hannover case suggests that the obligation to respect private life does not encapsulate merely activities conducted in private or sensitive events occurring in public. The obligation also extends to relatively ordinary daily activities occurring in public places. This is quite different from the reasoning of the English Court of Appeal in Campbell. In that case, Lady Hale found that the mere fact that the photography is covert does not make the act recorded private.

The activity photographed must be private. If … she pops out to the shops for a bottle of milk … there is nothing essentially private about that information nor can it be expected to damage her private life.^[75]

74.50 The extent of ‘private life’, therefore, remains unclear following the Von Hannover decision.

74.51 Phillipson has identified two potential interpretations of Von Hannover. The ‘absolutist’ interpretation is

the view that any publication of an unauthorised photograph specifically taken of a particular person engaged in an everyday activity outside their official duties will involve a prima facie violation of art 8.^[76]

74.52 Recognising that the courts may be inclined to read down Von Hannover, however, he also identified a more restrictive reading of the judgment, which he thought that the courts may adopt to ‘reconcile that decision [Von Hannover] with Campbell’. The narrow interpretation claims that two elements were essential for the finding that art 8 was engaged in Von Hannover. Those two elements were: (a) the fact that the pictures relate to the Princess’s everyday life, not her official functions; and (b) the constant intrusion that persistent photographing represents.^[77]

74.53 This interpretation limits the scope of Von Hannover to cases where an element of harassment is present. The narrow interpretation received some endorsement in John v Associated Newspapers,^[78] but was dismissed in McKennitt v Ash^[79] and in the decision at first instance in Murray v Express Newspapers.^[80]

74.54 Despite rejecting the narrow approach, the courts arguably have adopted a middle ground in cases such as McKennitt v Ash.^[81] As noted above, in McKennitt v Ash, the Court of Appeal held that the person alleging a breach of art 8 must establish that interference with private life was of ‘some seriousness’ before art 8 is engaged.^[82] This contradicts the principle underpinning Von Hannover, which, on an ‘absolutist’ reading of the judgment, leaves no scope for a test of ‘seriousness’. In Murray, Patten J held that ‘even after Von-Hannover there remains … an area of routine activity which when conducted in a public place carries no guarantee of privacy’.^[83]

74.55 In Murray, Murray—who is also known as JK Rowling (the author of the Harry Potter books)—and her husband sued a photo agency on behalf of their 18 month old son. The agency’s photographer took a covert photograph of the couple and their son on a street in Edinburgh. The photograph, which was published in a newspaper, clearly showed the son’s face. Rowling and her husband claimed that the photograph breached their son’s right to privacy, and that its publication was a misuse of private information.

74.56 In dismissing the case before trial, Patten J stated:

If a simple walk down the street qualifies for protection then it is difficult to see what would not. For most people who are not public figures in the sense of being politicians or the like, there will be virtually no aspect of their life which cannot be characterised as private. Similarly, even celebrities would be able to confine unauthorised photography to the occasions on which they were at a concert, film premiere or some similar function.^[84]

74.57 In the subsequent appeal, the Court of Appeal found that Patten J had incorrectly taken the view that the Murrays had sought, through an action in the name of their son, to establish a right to personal privacy for themselves and their family when engaged in ordinary family activities.^[85] The Court of Appeal stated the child had a right to privacy distinct from that of his parents. As the appeal was against an order striking out the action, the Court of Appeal was not required to analyse the difference between Von Hannover and the UK cases in any detail. It did, however, make some comment as to when a reasonable expectation of privacy could arise.

We do not share the predisposition identified by the judge … that routine acts such as a visit to a shop or a ride on a bus should not attract any reasonable expectation of privacy. All depends on the circumstances.^[86]

74.58 In coming to this view, the Court of Appeal echoed some of the reasoning in Von Hannover by focusing on the intrusive nature of media attention on celebrities.

It seems to us, that, subject to the facts of the particular case, the law should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child.^[87]

New Zealand

74.59 In Hosking v Runting, a majority of the New Zealand Court of Appeal held that the tort of invasion of privacy should be recognised as part of the common law of New Zealand.^[88] While the majority stressed that ‘the cause of action will evolve through future decisions as courts assess the nature and impact of particular circumstances’,^[89] the Court was prepared to extend tort protection to wrongful publicity given to private lives. The Court of Appeal was influenced by the third formulation of the United States privacy tort,^[90] holding that:

there are two fundamental requirements for a successful claim for interference with privacy:

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.^[91]

74.60 In the recent case of Rogers v TVNZ, the Court of Appeal considered whether a videotaped confession for trial (which TVNZ proposed to broadcast) could meet the test of a reasonable expectation of privacy. The court found that even though the tape was not inherently ‘private’, it could be considered to have been private outside its use in the courtroom. The court considered, however, that its privacy value was at the ‘low end of the scale’, which would impact on the later balancing of the right to privacy against other rights in favour of publishing the material.^[92] In this case, those other rights were considered to be freedom of expression and open justice. The matter was sent back to the lower courts for substantive hearing.

Australia

74.61 Prior to 2001, the major obstacle to the recognition in Australia of a common law right to privacy was the 1937 High Court decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor.^[93] In a subsequent decision, the High Court in Lenah Game Meats indicated clearly that the decision in Victoria Park ‘does not stand in the path of the development of … a cause of action [for invasion of privacy]’.^[94] The elements of such a cause of action—and whether the cause of action is to be left to the common law tradition of incremental development or provided for in legislation—remain open questions.^[95]

74.62 Since then, two Australian cases have recognised expressly a common law right of action for invasion of privacy. In the 2003 Queensland District Court decision in Grosse v Purvis, Skoien SDCJ awarded aggravated compensatory damages and exemplary damages to the plaintiff for the defendant’s breach of the plaintiff’s privacy.^[96] After noting that the High Court in Lenah Game Meats had removed the barrier the Victoria Park case posed to any party attempting to rely on a tort of invasion of privacy, his Honour took what he viewed as ‘a logical and desirable step’ and recognised ‘a civil action for damages based on the actionable right of an individual person to privacy’.^[97]

74.63 While emphasising that ‘it is not my task nor my intent to state the limits of the cause of action nor any special defences other than is necessary for the purposes of this case’, Skoien SDCJ enumerated the essential elements of the cause of action:

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; and

4 which causes the plaintiff detriment in the form of mental, physiological or emotional harm or distress, or which prevents or hinders the plaintiff from doing an act which he or she is lawfully entitled to do. ^[98]

74.64 His Honour noted that a defence of public interest should be available, but that no such defence had been made out on the facts of the case.^[99]

74.65 In Doe v Australian Broadcasting Corporation (Doe v ABC), the defendant broadcaster published in its afternoon and evening radio news bulletins information that identified the plaintiff—a victim of a sexual assault.^[100] In doing so, the defendant breached s 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic), which makes it an offence in certain circumstances to publish information identifying the victim of a sexual offence. Hampel J in the County Court of Victoria held that, in addition to breaching a statutory duty owed to the plaintiff by virtue of the Judicial Proceedings Reports Act, the defendant broadcaster and two of its employees were liable to the plaintiff in equity for breach of confidence, and in tort for invasion of privacy.^[101]

74.66 In holding that a tort for invasion of privacy had been proved, Hampel J noted that

this is an appropriate case to respond, although cautiously, to the invitation held out by the High Court in Lenah Game Meats and to hold that the invasion, or breach of privacy alleged here is an actionable wrong which gives rise to a right to recover damages according to the ordinary principles governing damages in tort.^[102]

74.67 Responding to the repeated suggestion by defence counsel that recognition of a tort of invasion of privacy would be a ‘bold step’,^[103] her Honour stated:

If the mere fact that a court has not yet applied the developing jurisprudence to the facts of a particular case operates as a bar to its recognition, the capacity of the common law to develop new causes of action, or to adapt existing ones to contemporary values or circumstances is stultified. Lenah Game Meats, and the UK cases … in particular those decided since Lenah Game Meats, demonstrate a rapidly growing trend towards recognition of privacy as a right in itself deserving of protection.^[104]

74.68 The decision in Doe v ABC was appealed, but the matter was settled on 4 March 2008. To date, no other Australian court has followed suit in recognising a cause of action for breach of privacy. In fact, the scant judicial commentary on the issue leans in the opposite direction.^[105] In Giller v Procopets, Gillard J of the Supreme Court of Victoria noted 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 and Australian law have not recognised a cause of action based upon breach of privacy.^[106]

74.69 His Honour concluded that, ‘in my opinion the law has not developed to the point where the law in Australia recognises an action for breach of privacy’.^[107] The decision is Giller is now the subject of an appeal.