14.07.2014

The design of a cause of action

1.3 The Report sets out the detailed legal design of a statutory civil cause of action for serious invasion of privacy. This was the core task given to the ALRC for this Inquiry.[2]

1.4 Notably, the cause of action designed in the Report is directed at invasions of privacy that are serious, committed intentionally or recklessly, and that cannot be justified in the public interest. It is also confined to invasions of privacy either by intrusion upon seclusion or by misuse of private information.

1.5 The design of this action and the other recommendations in the Report were informed by nine guiding principles, discussed in Chapter 2. These include the principle that privacy is a fundamental value worthy of legal protection and an important public interest.

1.6 Another principle is that privacy should be balanced with other rights and interests, such as freedom of expression. The ALRC considers that privacy and free speech are both better protected by finding a reasonable balance between them.

1.7 The cause of action is designed in detail in the Report. This should make more clear the scope of the action, the extent of protection it may provide, and the impact it may have on potential defendants. The detailed design of the cause of action may also help better inform debates about the desirability of such a cause of action.

1.8 In developing its recommendations, the ALRC considered, among other things, common law principles, developments in other jurisdictions, gaps in Australian common law and statute law, and recommendations made in previous inquiries into privacy law. The ALRC also considered community and industry concerns, including about threats to privacy by new technologies and the vital importance of free speech.

Elements and essential features of the tort

1.9 The cause of action should be enacted in a Commonwealth Act and should be described in the statute as an action in tort. This is the first essential feature of the cause of action. Chapter 4 sets out the constitutional background and legal implications of this recommendation. Importantly, describing the action as a tort will encourage courts to draw on established principles of tort law, when deciding a number of ancillary issues. This will provide a measure of certainty, consistency and coherence to the law.

1.10 Chapters 5 to 8 set out the elements and essential features of the tort. The overall structure and elements of the cause of action should be read together, as each element depends in many ways on the existence of the others.

1.11 These are the essential elements and features of the cause of action:

  • the invasion of privacy must be either by intrusion into seclusion or by misuse of private information (Chapter 5);

  • it must be proved that a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances (Chapter 6);

  • the invasion must have been committed intentionally or recklessly—mere negligence is not sufficient (Chapter 7);

  • the invasion must be serious (Chapter 8);

  • the invasion need not cause actual damage, and damages for emotional distress may be awarded (Chapter 8); and

  • the court must be satisfied that the public interest in privacy outweighs any countervailing public interests (Chapter 9).

1.12 This last point is the crucial ‘balancing exercise’, in which courts weigh privacy against other important public interests, such as freedom of speech, freedom of the media, public health and safety, and national security. The ALRC recommends that such competing interests be considered when determining whether the plaintiff has a cause of action. It should be an element of the tort, rather than a defence. A plaintiff should not be able to claim that a wrong has been committed—that their privacy has been seriously invaded—where there are strong public interest grounds justifying the invasion of privacy.

Limitation periods and other matters

1.13 Chapter 10 deals with important procedural and substantive matters. The ALRC recommends that:

  • federal, state and territory courts should have jurisdiction;

  • the cause of action should be limited to natural persons;

  • actions should not survive—either for the estate of the plaintiff or against the estate of the defendant;

  • the limitation period should be set at one year after the plaintiff becomes aware of the invasion, or three years after the invasion occurred, whichever comes first; and

  • alternative dispute resolution should neither be a bar to, nor a prerequisite for, litigation.

Defences

1.14 Chapter 11 sets out the recommended defences to the cause of action:

  • a defence of lawful authority;

  • a defence where the conduct was incidental to defence of persons or property;

  • a defence of consent;

  • a defence of necessity;

  • a defence of absolute privilege;

  • a defence for the publication of public documents; and

  • a defence for fair reporting of public proceedings.

Remedies

1.15 Chapter 12 discusses the making of costs orders and sets out the monetary and non-monetary remedies that should be available for serious invasions of privacy, including:

  • damages, including for emotional distress and, in exceptional circumstances, exemplary damages;

  • an account of profits;

  • injunctions;

  • delivery up, destruction and removal of material;

  • correction and apology orders; and

  • declarations.

1.16 The ALRC also recommends a list of factors for courts to consider in assessing damages and that there should be a statutory cap on the amount of damages that may be awarded in any particular case.