31 January 2014

A South Australian 'Privacy Tort'?

The South Australian Law Reform Institute has released an issues paper [PDF] and questionnaire [PDF] regarding the 'privacy tort'.

The Institute's inquiry is independent of the current Australian Law Reform Commission consultation highlighted elsewhere in this blog.

The Too much information: A statutory cause of action for invasion of privacy paper states that
This review was initiated by the Institute itself, after noting:
  • that it is not clear whether there is a tort of invasion of privacy at common law; 
  • that the remedies available to those whose personal privacy is invaded are limited; 
  • that modern technology makes it increasingly easy to invade personal privacy, to publish material or information so gained and to reach a wider audience than ever before, with often devastating and sometimes irreversible consequences; 
  • that a statutory cause of action for invasion of privacy has been identified by comprehensive Australian and international reviews as a potentially valuable civil remedy for, and deterrent against, serious invasions of privacy; and 
  • that there appear to be constitutional and political obstacles to establishing a national statutory cause of action for invasion of privacy.
The aim of the review is to investigate whether there is scope for South Australia to legislate its own statutory cause of action for invasion of privacy. After canvassing the views of South Australia’s legal profession, media, interest groups and the public at large, the Institute will report its findings and recommendations to the Attorney-General of South Australia.
The Institute comments that
1. Questions of what is privacy and what should be done by the State to protect it are live and complex in the 21st century. The pace of technological development and the changing ways in which we use technology to interact with each other necessitates a discussion about the way the law protects personal privacy. 
2. This paper discusses whether our privacy would be better protected if South Australia had a statutory cause of action for invasion of privacy. It outlines the history of attempted reform in South Australia and the range of approaches recently recommended by other law reform bodies in Australia. It sets out broadly the arguments for and against statutory reform, considers the characteristics of a statutory cause of action and poses questions for discussion. 
3. The Institute recognises that there is already a substantial amount of work on this topic and does not attempt to repeat it. In particular, the Institute refers to and relies on the following sources and encourages those seeking further information to go to these sources:
  • ALRC Discussion Paper 
  • ALRC Final Report 
  • ALRC Issues Paper 
  • NSWLRC Consultation Paper 
  • NSWLRC Final Report 
  • VLRC Information Paper 
  • VLRC Final Report 
  • Commonwealth Issues Paper
4. Forty years ago, the South Australian Law Reform Committee recommended that a general right of privacy be created by this State.  Bills attempting to create a cause of action were introduced into the South Australian Parliament in 1974 and again in 1991. Each was defeated after fierce and lengthy debate. A summary of the history of those Bills and the debate surrounding them is set out in Appendix 1 to this paper. 
5. In as many years, three law reform bodies in Australia have recommended the introduction of a statutory cause of action for invasion of privacy, given that there is doubt about whether one exists or will develop at common law: the Australian Law Reform Commission (ALRC) in 2008, the New South Wales Law Reform Commission (NSWLRC) in 2009 and the Victorian Law Reform Commission (VLRC) in 2010.  In New Zealand, where there is a limited common law tort of invasion of privacy, a review of privacy laws led to a recommendation by the New Zealand Law Commission in 20106 that there be no statutory enactments and that the tort be left to develop at common law. In September 2011, as part of its response to the 2008 ALRC Final Report, the Commonwealth Government released an Issues Paper inviting submissions on the ALRC recommendations for a Commonwealth cause of action for serious invasion of privacy. 
8. In June 2013, having reviewed submissions to the Commonwealth Issues Paper and concluded that they showed little consensus on how a legal right to sue for breach of privacy should be created, or if it should be created at all, the Commonwealth Attorney- General asked the ALRC to conduct another inquiry, this time into ‘the protection of privacy in the digital era’. A copy of those terms of reference is in Appendix 3 to this paper. 
9. On 8 October 2013, shortly before publication of this paper, the ALRC released its Issues Paper on ‘Serious Invasions of Privacy in the Digital Era’ as part of its response to the Commonwealth reference. 
10. At the core of the privacy debate is the tension between a right to privacy on the one hand and a right to freedom of expression on the other. Key international human rights instruments, to which Australia is a party, recognise a right to privacy along with other rights such as freedom of expression. These human rights stand equally, although often in competition. There is a strong argument that a democratic society should not shirk from giving effect to one human right simply because it is difficult to reconcile it with another. 
11. In Australia, concerns about freedom of expression have so far defeated attempts to introduce direct protection of privacy by a statutory cause of action. The development of a common law right to privacy in Australia has also gained little ground.   
12. This is in part because privacy is a concept that is difficult to define. It means different things to different people, and the distinction between ‘public’ and ‘private’ changes over time. Privacy is perhaps best described as involving the right of an individual to personal autonomy.  This autonomy not only encompasses privacy of personal information and communications, but also physical and territorial space. Privacy law in Australia, and in particular the Privacy Act 1988 (Cth), has largely focused on information privacy. This protection is principally limited to the collection, storage, use and disclosure of certain personal information by Governments and corporations. 
13. A useful American description of the kinds of conduct that should make a person liable to another for breaching their privacy,11 and which has informed the recent debate in Australia, including the recommendations by Australian law reform bodies, is this:
(a) ...intentionally intrud[ing], physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns ... if the intrusion would be highly offensive to a reasonable person; 
(b) ... appropriat[ing] to [one’s] own use or benefit the name or likeness of another ...; 
(c) ... giv[ing] publicity to a matter concerning the private life of another ... if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public; 
(d) ... giv[ing] publicity to a matter concerning another that places the other before the public in a false light ..., if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicised matter and the false light in which the other would be placed. 
14. This paper asks whether there is a gap in our laws to be filled by a statutory cause of action for invasion of privacy and, if so, what that cause of action might look like. 
15. Although these questions were considered in earlier South Australian reform debates, the impetus for reform in 2013 is very different. We are now more vulnerable to invasions of privacy than ever before because of the ease with which individuals can now find, access, disseminate or broadcast information and material. In the digital age, new ways to pierce a person’s ‘sphere of inviolability’ are being discovered and developed at an unprecedented pace. 
16. Privacy is protected, directly and indirectly, by various State and Commonwealth civil and criminal laws, industry codes of conduct and administrative instructions. The recent recommendations of the ALRC, the NSWLRC and the VLRC for the enactment of a statutory cause of action for invasion of privacy formed part of a wider review of privacy protection more generally afforded by these laws, codes and instructions. The Institute does not at this stage intend to replicate these reviews but rather to draw from them in its inquiry into whether a general right to personal privacy should be protected in South Australia by a statutory cause of action.