The Paper features a range of questions -
Principles guiding reform
Q1. What guiding principles would best inform the ALRC’s approach to the Inquiry and, in particular, the design of a statutory cause of action for serious invasion of privacy? What values and interests should be balanced with the protection of privacy?
The impact of a statutory cause of action
Q2. What specific types of activities should a statutory cause of action for serious invasion of privacy prevent or redress? The ALRC is particularly interested in examples of activities that the law may not already adequately prevent or redress.
Q3. What specific types of activities should the ALRC ensure are not unduly restricted by a statutory cause of action for serious invasion of privacy?
Invasion of privacy
Q4. Should an Act that provides for a cause of action for serious invasion of privacy (the Act) include a list of examples of invasions of privacy that may fall within the cause of action? If so, what should the list include?
Q5. What, if any, benefit would there be in enacting separate causes of action for: misuse of private information; and intrusion upon seclusion?
Privacy and the threshold of seriousness
Q6. What should be the test for actionability of a serious invasion of privacy? For example, should an invasion be actionable only where there exists a ‘reasonable expectation of privacy’? What, if any, additional test should there be to establish a serious invasion of privacy?
Privacy and public interest
Q7. How should competing public interests be taken into account in a statutory cause of action? For example, should the Act provide that: competing public interests must be considered when determining whether there has been a serious invasion of privacy; or public interest is a defence to the statutory cause of action?
Q8.What guidance, if any, should the Act provide on the meaning of‘public interest’?
Q9: Should the cause of action be confined to intentional or reckless invasions of privacy, or should it also be available for negligent invasions of privacy?
Q10. Should a statutory cause of action for serious invasion of privacy require proof of damage or be actionable per se?
Q11. How should damage be defined for the purpose of a statutory cause of action for serious invasion of privacy? Should the definition of damage include emotional distress (not amounting to a recognised psychiatric illness)?
Defences and exemptions
Q12. In any defence to a statutory cause of action that the conduct was authorised or required by law or incidental to the exercise of a lawful right of defence of persons or property, should there be a requirement that the act or conduct was proportionate, or necessary and reasonable?
Q13. What, if any, defences similar to those to defamation should be available for a statutory cause of action for serious invasion of privacy?
Q14. What, if any, other defences should there be to a statutory cause of action for serious invasion of privacy?
Q15. What, if any, activities or types of activities should be exempt from a statutory cause of action for serious invasion of privacy?
Q16. Should the Act provide for any or all of the following for a serious invasion of privacy: a maximum award of damages; a maximum award of damages for non-economic loss; exemplary damages; assessment of damages based on a calculation of a notional licence fee; an account of profits?
Q17. What, if any, specific provisions should the Act include as to matters a court must consider when determining whether to grant an injunction to protect an individual from a serious invasion of privacy? For example, should there be a provision requiring particular regard to be given to freedom of expression, as in s 12 of the Human Rights Act 1998 (UK)?
Q18. Other than monetary remedies and injunctions, what remedies should be available for serious invasion of privacy under a statutory cause of action? Who may bring a cause of action
Q19. Should a statutory cause of action for a serious invasion of privacy of a living person survive for the benefit of the estate? If so, should damages be limited to pecuniary losses suffered by the deceased person?
Q20. Should the Privacy Commissioner, or some other independent body, be able to bring an action in respect of the serious invasion of privacy of an individual or individuals?
Q21. What limitation period should apply to a statutory cause of action for a serious invasion of privacy? When should the limitation period start?
Location and forum
Q22. Should a statutory cause of action for serious invasion of privacy be located in Commonwealth legislation? If so, should it be located in the Privacy Act 1988 (Cth) or in separate legislation?
Q23. Which forums would be appropriate to hear a statutory cause of action for serious invasion of privacy?
Q24. What provision, if any, should be made for voluntary or mandatory alternative dispute resolution of complaints about serious invasion of privacy?
Interaction with existing complaints processes
Q25. Should a person who has received a determination in response to a complaint relating to an invasion of privacy under existing legislation be permitted to bring or continue a claim based on the statutory cause of action?
Other legal remedies to prevent and redress serious invasions of privacy
Q26. If a stand-alone statutory cause of action for serious invasion of privacy is not enacted, should existing law be supplemented by legislation: •providing for a cause of action for harassment; enabling courts to award compensation for mental or emotional distress in actions for breach of confidence; providing for a cause of action for intrusion into the personal activities or private affairs of an individual?
Q27. In what other ways might current laws and regulatory frameworks be amended or strengthened to better prevent or redress serious invasions of privacy?
Q28. In what other innovative ways may the law prevent serious invasions of privacy in the digital era?The ALRC proposes the following principles for guidance in its examination of potential changes to Australian law -
Privacy as a value: Privacy is important for individuals to live a dignified, fulfilling and autonomous life. It is an important element of the fundamental freedoms of individuals which underpin their ability to form and maintain meaningful and satisfying relationships with others; their freedom of movement and association; their ability to engage in the democratic process; their freedom to advance their own intellectual, cultural, artistic, financial and physical interests, without undue interference by others.
Privacy as a matter of public interest: There is a public interest in the protection of individual privacy and confidentiality.
The balancing of privacy with other values and interests: Privacy of an individual is not an absolute value which necessarily takes precedence over other values of public interest. It must be balanced with a range of other important values, freedoms and matters of public interest, including:
- freedom of speech, including the freedom of the media;
- freedom of artistic and creative expression;
- the proper administration of government and matters affecting the public or members of the public;
- the promotion of open justice;
- national security and safety;
- the prevention and detection of criminal and fraudulent activity;
- the effective delivery of essential services in the community;
- the protection of vulnerable persons in the community;
- national economic development and participation in the global digital economy; and
- the capacity of individuals to engage in digital communications and electronic financial and commercial transactions
International standards in privacy law: The protection of privacy in Australia should be consistent with Australia’s international obligations, for example, under the International Covenant on Civil and Political Rights, and take into account, as far as appropriate, international standards and legal developments in the protection of privacy.
Flexibility and adaptability: The design of the legislative protection of privacy should be sufficiently flexible to adapt to rapidly changing technologies and capabilities without the need for constant amendments, but at the same time be drafted with sufficient precision and definition to promote certainty as to its application and interpretation.
Coherence and consistency: Any recommendation for a statutory cause of action or other remedy should promote coherence in the law and be consistent with other laws or regulatory regimes in Australian law, and should promote uniformity or consistency in the law applying throughout Australian jurisdictions.
Access to justice: The law should provide a range of means to prevent, reduce or redress serious invasions of privacy which provide appropriate access to justice for those affected.