30 March 2016

South Australian Privacy Tort report

The South Australian Law Reform Institute has released its 193 page report on the statutory cause of action regarding privacy invasions.

The report features the following recommendations
R 1: The South Australian Parliament should enact a limited cause of action for serious invasion s of personal privacy.
R 2 : The statute should refer to the cause of action as a ‘tort’.
R 3: The cause of action should extend to the pro tection of bodily privacy, territorial privacy, information privacy and communications privacy.
R 4: The cause of action should require that a plaintiff have a reasonable expectation of privacy in the circumstances. The statute should provide a non-exhaustive list of factors that a court may take into account in making that assessment. In developing this list, guidance should be taken from the list of factors recommended in the ALRC 2014 Report.
R 5: The statute should provide th at the cause of action extend to intrusions upon a person’s seclusion and misuse of a person’s private information.
R 6: The statute should include the following non-exhaustive guiding examples:
  • For intrusion upon seclusion : by physically intruding into the plaintiff’s private space or by watching, listening to or recording the plaintiff’s private activities or private affairs . 
  • For misuse of private information : by collecting or disclosing private information about the plaintiff .
R 7 : The statutory cause of action should provide that ‘private information’ includes untrue information, but only if the information would be private if it were true .
R 8 : The fact of invasion is sufficient; that is, a plaintiff would have a cause of action if their privacy was invaded, even if the defendant did not further disclose or disseminate information or material obtained in the course of the invading act.
R 9 : The cause of action should provide that the invasion be serious. Whether the invasion is sufficiently serious to give rise to an action will be left for the court to decide, having regard to:
  • (an objective test) the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause to a person of ordinary sensibilities in the position of the plaintiff; 
  • (a subjective test) whether the defendant was motivated by malice or knew the invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff; and 
  • any other factors the court considers relevant.
R 10 : The Institute considers that a public interest test should be an element of the proposed cause of action. In determining whether a cause of action has been established, a court should be required to take into account whether the public interest in maintaining a plaintiff’s privacy outweighs other issues of public interest .
The statute should set out a non-exhaustive list of examples that a court may consider, along with any other relevant public interest matter. The list should be made having regard to the ALRC 2014 Report and the specific activities deemed to be of ‘legitimate public purpose’ in the 2012 amendments introducing the humiliating and degrading filming offences to the Summary Offences Act 1953 (SA), taking into account any overlap and interplay with the other elements and defences listed in this Report .
R 11 : The statute should expressly provide that t he cause of action is actionable without proof of damage.
R 12 : The kinds of harm or loss which are compensable should be cast as broadly as possible and should at least include emotional distress.
R 13 : The cause of action for invasion of privacy should apply to conduct that is either intentional or reckless but not accidental or negligent . There must exist either an intention to invade someone’s privacy or recklessness as to that fact. Recklessness in this context means where the defendant is aware of the risk of an invasion of privacy and is indifferent to whether or not an invasion of the plaintiff’s privacy would occur as a result of the conduct .
R 14 : The statute should provide that the cause of action only be available to natural persons.
R 15 : The statute should provide that the cause of action be confined to living persons.
R 16 : The consent (implied or inferred and freely given) of the plaintiff (or by an individual who has legal capacity to consent on their behalf) should be a complete defence to the action. The statute should make it clear that for the purposes of the defence, the consent must be to the particular disclosure or conduct constituting the invasion, including in the case of publication or dissemination, the extent of that publication or dissemination.
R 17 : There should be a defence for conduct incidental to the exercise of a lawful right of defence of person or property, where:
  • the defendant believes, on reasonable grounds, that the conduct was necessary; and
  • the defendant’s conduct is proportionate to the perceived threat.
R 18 : There should be a defence of necessity.
R 19 : There should be a defence for conduct which was required or authorised by law. For the purposes of this defence ‘law’ should be defined broadly and should mean the law as applicable in South Australia. The definition should include:
  • the general law; 
  • Commonwealth Acts, regulations, legislative instruments and other instruments made under a Commonwealth Act; 
  • South Australian ‘Acts’ and ‘statutory instruments’ (as defined in the Acts Interpretation Act 1915 (SA));  
  • orders made by courts and tribunals; 
  • prerogative powers; and 
  • documents that have the force of law pursuant to an Act.
The statute should make it clear that the absence of a law prohibiting particular conduct should not, of itself, mean that that conduct is authorised by law.
20 : There should be defences which are in similar terms to , and co-extensive with, the following defences to an action in defamation under the Defamation Act 2005 (SA):
  • the defence of fair report of proceedings of public concern; 
  • the defence of innocent dissemination;  
  • the defence for publication of public documents;  and
  • the defence of absolute privilege
R 21 : It should not be a defence to the cause of action to prove that the information was in the public domain prior to the invasion.
R 22 : The cause of action should not include any complete exemptions. However, consideration should be given to exempting (or in some other way excusing) young persons from liability.
R 23 : The remedies available for an invasion of privacy should include:
  •  account of profits; 
  • injunctions; 
  • orders of correction or apology; 
  • delivery up (including orders to take down)
  • declarations; 
  • damages; and 
  • any other relief that the court considers appropriate in the circumstances.
R 24 : The statute should provide that a court may award as many different remedies for an invasion of privacy as it sees fit.
R 25 : The statute should expressly require courts to consider all relevant competing public interests (including, but not limited to, freedom of expression) prior to granting an injunction as a remedy for an invasion of privacy.
R 26 : The statute should require courts to draw on established principles of tort law when determining the appropriate award of damages (and should consider awards in analogous cases for other torts).
R 27 : The statute should contain the following non - exhaustive list of considerations relevant to the determination of the award of compensatory damages:
(a) whether the defendant has made an appropriate apology to the plaintiff;
(b) whether the defendant has published a correction;
(c) whether the plaintiff has already recovered compensation, or has agreed to receive compensation in relation to the conduct of the defendant;
(d) whether either party has taken reasonable steps to settle the dispute without litigation; and
(e) whether the defendant’s unreasonable conduct following the invasion of privacy, including during the proceedings, has subjected the plaintiff to particular additional embarrassment, harm, distress or humiliation.
R 28 : The statute should prevent courts from awarding aggravated damages as a separate head of damage.
R 29 : The statute should expressly allow courts to award exemplary damages in exceptional cases.
R 30 : The statute should expressly allow courts to award nominal damages.
R 31 : The statute should impose a maximum amount of damages that may be awarded for the combined sum of the award for non - economic loss and the award for exemplary damages (if any). The maximum amount should be consistent with the maximum imposed by s 33(1) of the Defamation Act 2005 (SA), which is currently $250,000.
R 32 : The statute should allow a plaintiff to bring a claim within the earlier of one year from the date the plaintiff became aware of the invasion of privacy or six years from the date of the invasion of privacy. The one year limitation should be open, in exceptional circumstances, to extension by the  court, but not beyond six years from the date the invasion occurred.
R 33 : A plaintiff should be able to bring an action for invasion of privacy in the Supreme Court of South Australia, the District Court of South Australia or the Magistrates Court of South Australia.
R 34 : The costs should be determined in accordance with the relevant rules of the court in which the matter is heard