Exemption or defence for children and young persons

11.119 The ALRC recommends that the statutory cause of action should contain an exemption or defence where the invasion of privacy occurred when the defendant was a child or a young person under an age to be specified by the legislature.

11.120 This defence was not proposed in the Discussion Paper and the ALRC has not therefore received stakeholder comments. The ALRC nevertheless makes this recommendation in this Report, for a number of reasons.

11.121 In the digital era there is a significant potential for a child or a young person to misuse digital communications technology to invade the privacy of another child or young person while joining in with increasingly common forms of behaviour and social interaction. Although the ALRC recognises that substantial emotional distress may be caused by an invasion of privacy committed by a child or young person, the ALRC considers that education on the risks and ethical dimensions of such behaviour is more appropriate than the imposition of civil liability on children and young people below a specified age.

11.122 Available research indicates that age is a factor in how children and young people navigate online spaces.^[143] Age plays a role in the risks that young people face, the risks they are willing to take, and in their understanding of the implications of the risks, from engaging in online platforms and other communications using apps and mobile phones. Research indicates that young people are generally aware of privacy risks associated with some behaviour, such as sexting.^[144] However this awareness varies significantly—and perhaps unsurprisingly—depending on their age and capacity.

11.123 Given the increased affordability, capacity and usage of digital and mobile technology, children and young persons may therefore be more likely than in previous eras to engage in intentional or reckless behaviour which could expose them to liability under the new tort.

11.124 At common law, a child or young person can be liable in tort. There are rare examples of successful action in the case of personal injury inflicted by a child.^[145] Negligence law takes account of the age of a child in determining the standard of care that can be expected of a child of a similar age, experience and level of intellectual development.^[146] There is usually no point suing children or young people where the injury is minor or because of their lack of assets, but different considerations apply if the conduct caused lasting or significant injury and if liability for negligence is covered by household or other insurance policies.

11.125 For intentional torts, a child must be of sufficient age to form the relevant intent. This principle would be relevant to the new tort if the recommended defence were not included.

11.126 Unlike liability for negligence, insurance does not usually cover liability for intentional wrongs, so there may be little point suing a minor at the time. Liability for a tort endures until the expiration of the relevant limitation period, which in the case of a plaintiff who is a minor may be some years after the conduct. The ALRC considers it would be undesirable for the legislation to allow a young person to be sued for something done, potentially, years before when they were under the specified age.

11.127 Parents of a child who has committed a tort are not vicariously liable to the plaintiff for the child’s conduct. They can be liable if their lack of supervision amounts to a breach of their own duty of care in negligence to supervise or control their child,^[147] or if they have failed to secure goods to which the child should not have had access, particularly dangerous goods.^[148] Liability in negligence only arises where the plaintiff suffers actual damage. As the new tort of invasion of privacy is limited to intentional or reckless conduct, negligence by a parent in supervising a child would not give rise to liability under the new tort.

11.128 Standards and provisions in other legislation provide a useful model for legislators when considering an appropriate age at, or under which, liability under the new tort should not exist.

11.129 Commonwealth criminal law provides that a child under 10 years of age cannot be liable for a criminal offence.^[149] A child aged between 10 and 14 will only be liable if that child knows their conduct is wrong.^[150] Other legislation assumes differing levels of understanding and capacity depending on a young person’s age, for example, in NSW, the consent of a young person over the age of 14 years is effective consent to medical treatment to prevent which would otherwise be a battery.^[151]

11.130 There is evidence in recent Australian literature and government inquiries that legislatures and others are concerned about criminalising the behaviour of children and young persons, with long term effects on a young person’s record of behaviour. A number of other recent or current inquiries are being conducted into the age at which young people should be held liable for offences involving the use of communications networks or other criminal offensive or harmful behaviour.^[152]

11.131 The ALRC recommendation does not specify an age under which a young person should not be liable but suggests that it should be consistent with other legislation reflecting analogous rationales. The ALRC’s tentative view is that 16 would be an appropriate age under which a young person should not have a civil liability.