As foreshadowed in recent articles in Privacy Law Bulletin, the Government appears to be leaning towards the NSW Law Reform Commission model [PDF], with an explicit restriction to "serious" invasions of privacy in contrast to the Victorian Law Reform Commission's more nuanced conceptualisation in 2010 [PDF] of invasions of privacy per se.
In his introduction the Minister for Privacy and Freedom of Information comments that -
In May 2008, the Australian Law Reform Commission (ARLC) concluded a 28-month inquiry into the effectiveness of the Privacy Act 1988 and related laws as a framework for the protection of privacy in Australia. In its report, the ALRC made 295 recommendations for reform in a range of areas, including telecommunications, credit reporting information, health records, and privacy protection generally. The Government has responded to 197 of these recommendations.The paper accordingly asks -
One of the ALRC’s recommendations was that the most serious invasions of privacy could best be addressed through the introduction of a statutory cause of action for privacy. The Victorian and New South Wales Law Reform Commissions have also recommended a statutory cause of action for privacy.
In responding to the ALRC recommendation, the threshold question that must be asked is whether the introduction of a statutory cause of action for privacy is warranted. This is a particularly important question in light of a cause of action for privacy developing case-by-case in the Australian courts. If there is to be a statutory cause of action, how do we make sure it gets the balance right between the public interest in the right to privacy and other important public interests including freedom of expression? We cannot simply consider whether action is desirable without also considering how best to do it.
1. Do recent developments in technology mean that additional ways of protecting individuals’ privacy should be considered in Australia?It draws on recommendations in the Australian Law Reform Commission's For Your Information: Australian Privacy Law and Practice report -
2. Is there a need for a cause of action for serious invasion of privacy in Australia?
3. Should any cause of action for serious invasion of privacy be created by statute or be left to development at common law?
4. Is ‘highly offensive’ an appropriate standard for a cause of action relating to serious invasions of privacy?
5. Should the balancing of interests in any proposed cause of action be integrated into the cause of action (ALRC or NSWLRC) or constitute a separate defence (VLRC)?
6. How best could a statutory cause of action recognise the public interest in freedom of expression?
7. Is the inclusion of ‘intentional’ or ‘reckless’ as fault elements for any proposed cause of action appropriate, or should it contain different requirements as to fault?
8. Should any legislation allow for the consideration of other relevant matters, and, if so, is the list of matters proposed by the NSWLRC necessary and sufficient?
9. Should a non-exhaustive list of activities which could constitute an invasion of privacy be included in the legislation creating a statutory cause of action, or in other explanatory material? If a list were to be included, should any changes be made to the list proposed by the ALRC?
10. What should be included as defences to any proposed cause of action?
11. Should particular organisations or types of organisations be excluded from the ambit of any proposed cause of action, or should defences be used to restrict its application?
12. Are the remedies recommended by the ALRC necessary and sufficient for, and appropriate to, the proposed cause of action?
13. Should the legislation prescribe a maximum award of damages for non-economic loss, and if so, what should that limit be?
14. Should any proposed cause of action require proof of damage? If so, how should damage be defined for the purposes of the cause of action?
15. Should any proposed cause of action also allow for an offer of amends process?
16. Should any proposed cause of action be restricted to natural persons?
17. Should any proposed cause of action be restricted to living persons?
18. Within what period, and from what date, should an action for serious invasion of privacy be required to be commenced?
19. Which forums should have jurisdiction to hear and determine claims made for serious invasion of privacy?
Recommendation 74–1The Victorian Law Reform Commission, as noted elsewhere in this blog, offered recommendations for a statutory cause of action -
Federal legislation should provide for a statutory cause of action for a serious invasion of privacy. The Act should contain a non-exhaustive list of the types of invasion that fall within the cause of action. For example, a serious invasion of privacy may occur where:a) there has been an interference with an individual’s home or family life;Recommendation 74–2
b) an individual has been subjected to unauthorised surveillance;
c) an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed; or
d) sensitive facts relating to an individual’s private life have been disclosed.
Federal legislation should provide that, for the purpose of establishing liability under the statutory cause of action for invasion of privacy, a claimant must show that in the circumstances:a) there is a reasonable expectation of privacy; andIn determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court must take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).
b) the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities.
Recommendation 74–3
Federal legislation should provide that an action for a serious invasion of privacy:a) may only be brought by natural persons;Recommendation 74–4
b) is actionable without proof of damage; and
c) is restricted to intentional or reckless acts on the part of the respondent.
The range of defences to the statutory cause of action for a serious invasion of privacy provided for in federal legislation should be listed exhaustively. The defences should include that the:a) act or conduct was incidental to the exercise of a lawful right of defence of person or property;Recommendation 74–5
b) act or conduct was required or authorised by or under law; or
c) publication of the information was, under the law of defamation, privileged.
To address a serious invasion of privacy, the court should be empowered to choose the remedy that is most appropriate in the circumstances, free from the jurisdictional constraints that may apply to that remedy in the general law. For example, the court should be empowered to grant any one or more of the following:a) damages, including aggravated damages, but not exemplary damages;Recommendation 74–6
b) an account of profits;
c) an injunction;
d) an order requiring the respondent to apologise to the claimant;
e) a correction order;
f) an order for the delivery up and destruction of material; and
g) a declaration.
Federal legislation should provide that any action at common law for invasion of a person’s privacy should be abolished on enactment of these provisions.
Recommendation 74–7
The Office of the Privacy Commissioner should provide information to the public concerning the recommended statutory cause of action for a serious invasion of privacy
22. There should be two statutory causes of action dealing with serious invasion of privacy caused by misuse of surveillance in a public place.
23. The first cause of action should deal with serious invasion of privacy by misuse of private information.
24. The second cause of action should deal with serious invasion of privacy by intrusion upon seclusion.
25. The elements of the cause of action for serious invasion of privacy caused by misuse of private information should be:a. D misused, by publication or otherwise, information about P in respect of which he/she had a reasonable expectation of privacy; and26. The elements of the cause of action for serious invasion of privacy caused by intrusion upon seclusion should be:
b. a reasonable person would consider D’s misuse of that information highly offensive.a. D intruded upon the seclusion of P when he/she had a reasonable expectation of privacy; and27. The defences to the cause of action for serious invasion of privacy caused by misuse of private information should be:
b. a reasonable person would consider D’s intrusion upon P’s seclusion highly offensive.a. P consented to the use of the information28. The defences to the cause of action for serious invasion of privacy caused by intrusion upon seclusion should be:
b. D’s conduct was incidental to the exercise of a lawful right of defence of person or property, and was a reasonable and proportionate response to the threatened harm
c. D’s conduct was authorised or required by law
d. D is a police or public officer who was engaged in his/her duty and the D’s conduct was neither disproportionate to the matter being investigated nor committed in the course of a trespass
e. if D’s conduct involved publication, the publication was privileged or fair comment
f. D’s conduct was in the public interest, where public interest is a limited concept and not any matter the public may be interested in.a. P consented to the conduct28. The defences to the cause of action for serious invasion of privacy caused by intrusion upon seclusion should be:
b. D’s conduct was incidental to the exercise of a lawful right of defence of person or property, and was a reasonable and proportionate response to the threatened harm
c. D’s conduct was authorised or required by law
d. D is a police or public officer who was engaged in his/her duty and the D’s conduct was neither disproportionate to the matter being investigated nor committed in the course of a trespass
e. D’s conduct was in the public interest, where public interest is a limited concept and not any matter the public may be interested in.a. P consented to the conduct29. The remedies for both causes of action should be:
b. D’s conduct was incidental to the exercise of a lawful right of defence of person or property, and was a reasonable and proportionate response to the threatened harm
c. D’s conduct was authorised or required by law
d. D is a police or public officer who was engaged in his/her duty and the D’s conduct was neither disproportionate to the matter being investigated nor committed in the course of a trespass
e. D’s conduct was in the public interest, where public interest is a limited concept and not any matter the public may be interested in.a. compensatory damages30. Costs should be dealt with in accordance with section 109 of the [Victorian Civil and Administrative Tribunal Act 1998 (Vic)].
b. injunctions
c. declarations.
31. Jurisdiction to hear and determine the causes of action for serious invasion of privacy by misuse of private information and by intrusion upon seclusion should be vested exclusively in the Victorian Civil and Administrative Tribunal.
32. These causes of action should be restricted to natural persons. Corporations and the estates of deceased persons should not have the capacity to take proceedings for these causes of action.
33. Proceedings must be commenced within three years of the date upon which the cause of action arose.
