Onus of proof

8.16 A number of stakeholders submitted that a balancing exercise should be carried out when determining actionability.^[8] Others said there should instead be a public interest defence, considered later in proceedings.^[9] Under the proposal above, with a balancing exercise when determining actionability, a plaintiff will have the onus of proving that their interest in privacy outweighs any competing public interests that are raised. On the other hand, if there were a public interest defence, a defendant would have the onus to prove that the defence was made out.

8.17 The question of who should bear the onus of proof was often the main reason given by stakeholders for either supporting a public interest test in the cause of action, or a public interest defence. Many stakeholders said it was more appropriate for the defendant to bear the burden of proof, and that therefore there should be a public interest defence.^[10] For example, Professor Moira Paterson submitted:

the plaintiff already has the onus of establishing that he or she had a reasonable expectation of privacy which was breached in a serious way. The requirement that a privacy breach needs to be serious to justify litigation itself acknowledges that there is a competing interest in transparency that should always trump where the privacy breach is trivial in nature. In those circumstances it is not unreasonable to require the defendant to prove that a serious breach was nevertheless in the public interest because of the strong public interest in freedom of expression (or some other competing interest).^[11]

8.18 Similarly, Peter Clarke has written that requiring consideration of the public interest when determining actionability presupposes that there must always be a public interest at stake. He writes that this is not logical and puts the cart before the horse:

The protection of one’s privacy should be separate and independent of such concerns whereas a defence may have regard to the public interest justifying such a breach. The burden should be upon the Defendant/Respondent to show there is a public interest in the intrusion. The benefit of the Victorian [Law Reform Commission’s] approach is that the defence is a matter that can be considered discretely and for the defendant to crystallise what public interest is in issue.^[12]

8.19 The VLRC based its recommendation that public interest should be a defence to an invasion of privacy largely upon its assessment that the burden of proving the existence of a countervailing public interest should lie with the defendant. The VLRC argued that a plaintiff ‘should not have to prove a negative, such as the lack of a countervailing public interest’.^[13]

8.20 There is a public interest defence in New Zealand and Canada. New Zealand has a defence of ‘legitimate public concern’ to invasions of privacy.^[14] The Court of Appeal of New Zealand stated, in Hosking v Runting:

There should be available in cases of interference with privacy a defence enabling publication to be justified by a legitimate public concern in the information. In P v D, absence of legitimate public interest was treated as an element of the tort itself. But it is more conceptually sound for this to constitute a defence, particularly given the parallels with breach of confidence claims, where public interest is an established defence. Moreover, it would be for the defendant to provide the evidence of the concern, which is the appropriate burden of proof if the plaintiff has shown that there has been an interference with his or her privacy of the kind we have described.^[15]

8.21 Where the act of invasion was a publication, the four Canadian provinces that have enacted statutory causes of action for invasion of privacy provide a defence where the publication was in the public interest.^[16]

8.22 In supporting a public interest defence, the law firm Maurice Blackburn has noted that a similar approach has been used for other statutory causes of action in Australia. Under the Racial Discrimination Act 1975 (Cth), ‘it is for the defendant to show that their conduct should be exempted because it has been done reasonably and in good faith for particular specified purposes’; and ‘under the Racial and Religious Tolerance Act 2001 (Vic) the defendant must demonstrate that conduct which would otherwise be racial or religious vilification was justified because it was in the public interest’.^[17]

8.23 The defendant may be in a better position to provide evidence that the invasion of privacy was in the public interest. A newspaper, for example, would seem better placed to bring evidence of its own interest in free expression and the public’s interest in free speech, than an individual may be to provide evidence that these interests do not outweigh the plaintiff’s privacy.

8.24 However, the ALRC considers that it is preferable to consider the public interest when determining actionability, and that the plaintiff should bear the legal onus of proof on matters going to actionability. This should better ensure that privacy interests are not unduly privileged over other important rights and interests. Privacy is an interest that is relative, and the context and circumstances of the conduct are critical factors: the balancing at this stage of the action reflects this. As noted above, this approach was supported by some stakeholders. For example, Telstra submitted that

given the seriousness of the cause of action and the potentially chilling effect it may have on business and service providers, the onus of proof should be on the plaintiff to ensure that their claim is sufficiently serious to outweigh public interest concerns at the outset.^[18]

8.25 Under Proposal 8-1, the plaintiff will have the onus to prove that their privacy interest outweighs any competing public interest and the interest of the defendant in free speech. This is consistent with the general principle of law that ‘a plaintiff bears the burden of proving the ingredients of the cause of action’, while the ‘defendant bears the burden of proving the requisite elements of the defence’.^[19]

8.26 The ALRC agrees with the NSWLRC when it stated in its report:

Legal principle requires that plaintiffs bear the onus of establishing their case. It is appropriate, in our view, that, as part of establishing an invasion of privacy, plaintiffs should demonstrate at the outset that their claim to privacy is not outweighed by a competing public interest. Quite simply, privacy only needs protection if it is not outweighed, in the circumstances, by such a competing interest.^[20]

8.27 However, the importance of the question of who bears the onus of proof should not be overstated and Witzleb has suggested that the question of who bears the onus of proof may not have significant practical implications. Where public interest considerations are considered as part of establishing the cause of action, Witzleb considers that this

will, in many cases, prompt the plaintiff to provide evidence that is relevant to the public interest considerations in the balancing process. In practice, however, the defendant will often be in a better position, and have the greater interest, to adduce the evidence necessary for establishing the weight of the public interest in his or her conduct.^[21]

8.28 In practice, facts as pleaded by the plaintiff may raise no public interest issues. It is not the case that the plaintiff would have to separately and exhaustively plead and prove the non-existence of each and every possible matter of public interest that may arise in any case involving privacy.

8.29 There is also the well-known distinction between the legal onus of proof and the evidentiary or strategic onus of proof.^[22] While in general a plaintiff bears the onus of proof as to the elements of the cause of action asserted, a strategic or evidentiary onus may pass to a defendant to bring forward evidence to rebut any inferences that may be drawn from the plaintiff’s case. If it does not do so, the defendant runs the strategic risk that the court may choose to draw an inference argued by the plaintiff.