Unnecessary defences

Other defamation defences

10.79 The ALRC is not proposing that all defences to defamation be replicated in the new tort. There are differences in the nature and application of the two causes of action which mean that not all defamation defences are appropriate in a privacy context.

10.80 First, the defence of truth is not relevant to a privacy tort. Most cases involving invasions of privacy by disclosure of information are brought to prevent or seek redress for disclosure of true information.

10.81 Secondly, a defence of fair comment as in defamation law^[79] is arguably inappropriate for a privacy tort. Public interest will already have been considered as part of the actionability of the cause of action, so that a defence is unnecessary: the right to speak freely that is protected by the defence of fair comment in defamation law, both at common law and under the UDL, is limited to matters of public interest. Further, the relevant wrong in the invasion of privacy tort is the disclosure of information. Outside matters of public interest, a person should not be able to disclose private information about another under the guise of making a comment or opinion.^[80] The VLRC recommended a defence of fair comment but such a defence was not recommended by the ALRC previously or by the NSWLRC.^[81]

10.82 Thirdly, the defence of innocent dissemination^[82] is inappropriate, as the statutory cause of action is limited to intentional acts. In any event, the ALRC has proposed a safe harbour scheme, which may provide a suitable defence for some innocent disseminators of material that invades privacy.

10.83 Lastly, the defence of triviality is unnecessary as the statutory cause of action is confined to serious invasions of privacy.^[83]

Material in the public domain

10.84 Several stakeholders supported the inclusion of a defence that the material was already in the public domain.^[84] However the ALRC proposes that consideration of whether and to what extent material was in the public domain should be considered by a court when determining whether a plaintiff had a reasonable expectation of privacy.^[85] This factor is therefore discussed more fully in Chapter 6. The ALRC recognises that there may be some circumstances where the widespread dissemination of an individual’s private information may diminish their reasonable expectation of privacy. However a complete defence would be inappropriate as the extent and effect of a prior disclosure on an individual’s privacy is variable. Moreover, unlike confidential information, private information does not necessarily lose its quality of privacy once it has been disclosed. PIAC argued that information may still be private in nature, despite the fact that it has been published.^[86] Information such as a person’s criminal record, certain health information such as their HIV status, or the fact that they were a victim of crime may no longer be of such public interest that publication outweighs the reasonable expectation of privacy.

Public interest

10.85 The ALRC has proposed earlier in this Discussion Paper that a plaintiff only has a cause of action for serious invasion of privacy where a court is satisfied that the plaintiff’s interest in privacy outweighs the defendant’s interest in freedom of expression and any broader public interest.^[87] A defence of public interest is therefore unnecessary. Public interest is discussed more fully in Chapter 8.

10.86 Several stakeholders favoured a defence of public interest.^[88] Some stakeholders argued that a defence would provide greater accessibility to litigation for plaintiffs as defendants will often be in a better position to adduce evidence relevant to the question of whether there was a public interest in their conduct.^[89] In the case of a media organisation for instance, this may be due to their experience in handling public interest similar matters such as submitting FOI requests to government agencies in the public interest.

10.87 Similar or analogous actions also provide for a public interest defence. For instance, qualified privilege under the UDL^[90] provides that a court may consider public interest matters when assessing whether a defendant behaved reasonably when publishing a defamatory matter.

10.88 However, the ALRC considers that a balancing exercise is a more appropriate way to determine whether there is a public interest in the disclosure of the private information or the intrusion into an individual’s seclusion. Expressly incorporating public interest into the actionability of a statutory cause of action will ensure that privacy interests are not unduly privileged over other rights and interests, particularly given that Australia does not have express human rights law protection for freedom of speech.

Consent

10.89 Several stakeholders argued in favour of a defence of consent.^[91] The ALRC proposes that whether the plaintiff has consented to the conduct of the defendant should be considered as a factor in whether the plaintiff had a reasonable expectation of privacy. The inclusion of consent in the test for actionability will provide an opportunity for the court to balance the quality and scope of a plaintiff’s consent with the defendant’s conduct and interests.

Contributory negligence

10.90 The ALRC is not proposing a defence of contributory negligence. A defence of contributory negligence would have the effect of defeating a claim for serious invasion of privacy where a plaintiff’s failure to take reasonable care contributed to the invasion of their privacy. Further, because contributory negligence is not to be a defence, there would also be no basis for arguing that the apportionment provisions in state and territory legislation^[92] should apply.

10.91 A defence of contributory negligence would be inconsistent with the design of the cause of action which is limited to intentional conduct. The ALRC considers that where a defendant intends to invade another person’s privacy, and cannot rely on one of the available defences, that conduct should not be excused or mitigated by any fault of the plaintiff. This approach is consistent with the law relating to other intentional torts law, such as conversion, battery and assault.^[93]

Other defences and exemptions

10.92 Several stakeholders expressed the view that no activity or organisation should be exempt from the statutory cause of action, arguing that defences would be sufficient to protect serious invasions of privacy which are nonetheless warranted.^[94]

10.93 Stakeholders have raised a number of other possible exemptions and defences. However, the ALRC considers that many of these are appropriately captured by the defences proposed above. SBS favoured an exemption for journalists and media organisations, provided the serious invasion of privacy occurs whilst they are engaged in journalism.^[95] This would operate in a similar fashion to the journalism exemption in the Privacy Act 1988 (Cth).

10.94 Telstra favoured an emergency services exemption.^[96] The Australian Bureau of Statistics (ABS) favoured an exemption for the use of official data for statistical and related purposes.^[97] The Australian Bankers’ Association argued that compliance with the Privacy Act 1988 (Cth) should be a complete exemption to a statutory cause of action for serious invasion of privacy.^[98]

10.95 Voiceless and the Barrister’s Animal Welfare Panel Ltd submitted that there should be a defence for activities carried out ‘for the purpose of, or resulted in, the procuring of evidence of an iniquity’.^[99] The ALRC considers that such a defence would be much too extensive. The defence of lawful authority and the defence for conduct incidental to the exercise of a lawful right of defence of persons or property, both proposed above, are more appropriate.

10.96 The Arts Law Centre of Australia^[100] (supported by the National Association for the Visual Arts and the Australian Institute of Professional Photography) favoured the following exemptions: photography or filming in a public place; documentary film-making or photography; journalistic or investigative photography, film-making or reporting; photography or filming of privately owned land or premises, or people on those premises, where the premises are accessible to the public; and photography or filming of people on private premises for purposes such as education, journalism, artistic expression and documentary.