In Waller (A Pseudonym) v Barrett (A Pseudonym) [2024] VCC 962, requiring careful reading, Tran J in the District Court addresses questions regarding confidentiality and privacy.
The judgment states
Effectively, Lynn is contending that a duty should be imposed upon Romy to take reasonable care not to make public statements about her that may cause psychiatric injury, regardless of whether they fall within one of the existing causes of action for public statements, such as breach of confidence, defamation, negligent misstatement or injurious falsehood. It has been said that the law of the tort of negligence ought not be extended in disconformity with other torts. Further, previous invitations to find a duty of care in relation to words, in the context of carelessly conveyed bad news, have not been accepted. The creation of such a duty would amount to the creation of a tort of negligent interference with privacy, but without the checks and balances which might otherwise be applied in determining causes of action, such as injurious falsehood, defamation and breach of confidence, nor even any obvious method to circumscribe the concept of “privacy”.
One recalls the playground chant “sticks and stones may break my bones, but words will never hurt me”. There is no question that this chant is aspirational, rather than founded in psychiatric reality. But should the law of negligence treat words as akin to dangerous weapons whose use must be carefully controlled lest they cause injury? Clearly the protection of vulnerable persons in the community is a relevant consideration for the Court, but, so too is the personal autonomy to tell one’s story, and free speech. The fundamental question which the Court must decide is whether it is reasonable to impose a duty of care in the circumstances in question. In all the circumstances, I am not satisfied that this is the case
Lynn’s closing submissions focused heavily on the provisions of s48 of the Wrongs Act. Section 48(1) of the Wrongs Act provides that: “(1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions.”
S48 does not create a duty of care, rather it prescribes additional criteria which must be met in order for a plaintiff to establish negligence. I have found that no duty of care exists in the circumstances of this case. Accordingly, Lynn’s claim for negligence must fail.
Breach of confidence
The parties’ submissions
The principles applicable to a claim for breach of confidence were not in dispute. To establish a claim, a plaintiff must:[234] (a) identify some particular information with the necessary quality of confidence; (b) establish that the information was imparted to the defendant in circumstances importing an obligation of confidence; and (c) establish the defendant has used the information in an unauthorised manner.
Lynn contended that each of these requirements were met in relation to the “confidential information about her relationship with her father”.
Romy, on the other hand, submitted that no claim for breach of confidence arose: (a) the relevant information was in the public domain and not confidential; (b) the origin of the information could not be traced back to Romy; (c) Lynn had herself disclosed information about the counselling session to others; and (d) he acted in good faith and reasonably in the circumstances.
Consideration
There was a tendency in the submissions and evidence of both parties to talk in very general terms about “the publications” or Romy’s “post-stabbing conduct”. However, in considering each of Lynn’s claims in relation to the publications, care must be taken to consider the particular pleaded causes of action; and the specific information or statements to which those causes of action relate. It is no part of the Court’s role to make an assessment of the whole of Romy’s “post-stabbing conduct” viz-a-vis Lynn, nor to determine whether that conduct was bad parenting, wrongful, unjustified, or any other broadly-described form of bad behaviour. At the risk of repetition, what must be decided by the Court is whether the specific legal claims made by Lynn in this proceeding are made out. ...
In Lenah Game Meats, Gleeson CJ considered the question of when information could be considered sufficiently “private” to found a cause of action in breach of confidence:
“There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.”
This passage was considered in the House of Lords decision of Campbell v MGN Ltd. Lord Hope and Baroness Hale noted that, under the approach of Gleeson CJ, the reasonable person of ordinary sensibilities was to be placed in the position of the person whose private information would be disclosed, rather than the discloser. In other words, would a reasonable person in the particular circumstances of Lynn find it highly offensive for her conversations with her father concerning the stabbing, her mother and her expectations of him, be disclosed for the purposes of publication? In my view, such a person would.
Private conversations between a father and a deeply-vulnerable and traumatised child about personal matters should not be communicated to the press. Even, or perhaps particularly, by the father. I am satisfied that the existence and content of these conversations was information which had the necessary quality of confidence; and was conveyed in circumstances imparting an obligation of confidence.
The judgment goes on to provide a detailed consideration of a common law cause of action regarding privacy
Tort of invasion of privacy
The parties’ submissions
Lynn submitted that the common law in Australia should now recognise the existence of a tort of invasion of privacy and that its elements were: (a) a willed act by the defendant; (b) which intrudes upon the privacy or seclusion of the plaintiff; (c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities; and (d) which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress, or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.
Romy submitted that there could be no cause of action for the tort of privacy against him in circumstances where: (a) the information in the publications was in the public domain; (b) the information in the publications could not be solely sourced as originating from Romy; (c) Romy had emphasised to the journalists and Ms Norris that he wished to protect his children; (d) Romy had done no more than share his personal story as a victim of a horrific crime, in order to help and inspire other victims of crime; and (e) Lynn had participated in a Channel 7 broadcast in relation to her mother and disclosed what occurred during the counselling meeting to her mother and Aunt, and could not now claim privacy in relation to these matters.
The question to be determined
I have held that Lynn did not apologise to Romy after the counselling meeting and that, accordingly, there cannot have been any breach of confidence in Romy stating that Lynn had apologised to him (item 3 in Table 1). Could, perhaps, the recognition that there exists in the common law an actionable claim for invasion of privacy fill this gap? A defining feature of the common law is its capacity to shift and develop as judges grapple with the application of existing legal principle to the infinitely varied, human and complex circumstances which come before them. Thus, in their seminal opinion piece advocating for the recognition of the existence of a tort of privacy in the United States, published in the Harvard Law Review in 1890, Samuel D Warren and Louis Brandeis, commenced with: “That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. ... .”
However, any such development must be in accordance with the common law method. Judges are not legislatures. Judicial development of the law must be incremental and confined, not only by binding precedent, but also by respect for the reasoning of other judicial decisionmakers; and the value of certainty and the appropriate limits of judicial power. Development is possible, but only where it proceeds “logically or analogically from other legal principles, rules and institutions”.
In Lenah Game Meats, the High Court considered whether the owner of an abattoir had a right to prevent the broadcasting of video footage obtained through a trespass of its operations. The nature of its operations were not confidential, but it contended that it would suffer loss of business if footage of those operations were broadcast to the public. Gleeson CJ said: “The scales of justice are a powerful image in the judicial process. But the imagery should not lead to the misapprehension that the essential function of a court is to decide every case by a discretionary preference for one possible outcome over another ... ... if the respondent has the right to prevent the appellant’s use of the film, that right must emerge from some principle of general application. ... .”
In Campbell, Lady Hale put it this way: “...the courts will not invent a new cause of action to cover types of activity which were not previously covered: see Wainright v Home Office. Mrs Wainwright and her disabled son suffered a gross invasion of their privacy when they were strip-searched before visiting another son in prison. The common law in this country is powerless to protect them. ... That case indicates that our law cannot, even if it wanted to, develop a general tort of invasion of privacy. But where existing remedies are available, the court not only can but must balance the competing Convention rights of the parties.” (Footnote omitted.)
The question this court must consider, then, is whether, consistently with the common law method, an actionable claim for invasion of privacy can be identified which would permit a remedy to be granted for Lynn’s hurt and distress at Romy stating that she had apologised to him.
I will address this question by first considering the current state of the Australian case law in relation to the existence of a tort of privacy, before turning to consider, briefly, the approaches applied in the United Kingdom, New Zealand, Canada and the United States. I will then consider whether the acknowledgment of the existence of a private right of action for breach of privacy can be viewed as an incremental development of the existing action for breach of confidence and whether, as a matter of policy, a cause of action for invasion of privacy ought to be recognised as part of the law of Australia. Finally, I will consider whether, if there is such a cause of action, it responds to a situation, such as arises in relation to item 3 in Table 1, where there has been a statement made which purports to disclose private information, but that statement is not correct.
The current state of the Australian case law in relation to the existence of a tort of privacy
The starting point is Victoria Park Racing and Recreation Grounds Company Limited v Taylor and Others. The defendants in that case built a platform on land adjoining a racecourse owned by the plaintiff. Without the plaintiff’s permission, the defendants then broadcast descriptions of horse races conducted at the racecourse. As a result, attendances at the plaintiff’s racecourse decreased and the plaintiff’s takings reduced. The plaintiff sued in nuisance and for breach of copyright. The majority of the High Court (Latham CJ, Dixon and McTiernan JJ) held that the defendants had not breached any legal right of the plaintiff. In the course of his reasons, Latham CJ stated:
“I am unable to see that any right of the plaintiff has been violated or any wrong done to him. Any person is entitled to look over the plaintiff’s fences and to see what goes on in the plaintiff’s land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence. Further, if the plaintiff desires to prevent its notice boards being seen by people from outside the enclosure, it can place them in such a position that they are not visible to such people. In my opinion, the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide. The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff’s land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff’s ground. The court has not been referred to any principle of law which prevents any man from describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language...break a contract, or wrongfully reveal confidential information. ... .”
And:
“The claim under the head of nuisance has also been supported by an argument that the law recognizes a right of privacy which has been infringed by the defendant. However desirable some limitation upon invasions of privacy might be, no authority was cited which shows that any general right of privacy exists. The contention is answered, in my opinion, by the case of Chandler v. Thompson; see also Turner v. Spooner: ‘With regard to the question of privacy, no doubt the owner of a house would prefer that a neighbour should not have the right of looking into his windows or yard, but neither this court nor a court of law will interfere on the mere ground of invasion of privacy; and a party has a right even to open new windows, although he is thereby enabled to overlook his neighbour’s premises, and so interfering, perhaps, with his comfort”; ... .”
For decades, this case was widely viewed as excluding the recognition of a tort of invasion of privacy under Australian common law. However, in 2001, in the case of Lenah Game Meats, the High Court again considered the question of whether there was a common law tort of invasion of privacy. In Lenah Game Meats, the owner of an abattoir sought an injunction to restrain the ABC from broadcasting footage of its facility which (it was assumed) had been recorded by animal rights activists in the course of a trespass. One ground put forward for the injunction relied upon for the first time in the High Court, was that the owner of the abattoir had a cause of action for the tort of invasion of privacy. None of the members of the Court explicitly recognised the existence of such a tort. However, each of the judgments left open the question of whether such a tort might be recognised in the future.
Gummow and Hayne JJ (with whom Gaudron J agreed) stated this proposition most clearly: “Victoria Park does not stand in the path of the development of [a tort of unjustified invasion of privacy] ... . In the course of his judgment, Latham CJ rejected the proposition that under the head of nuisance the law recognised a right of privacy (232). But the decision does not stand for any proposition respecting the existence or otherwise of a tort identified as unjustified invasion of privacy. Writing in 1973, Professor W L Morison correctly observed: ‘The plaintiff in the case was a racecourse proprietor [which] was not seeking privacy for [its] race meetings as such, [it] was seeking a protection which would enable [it] to sell the rights to a particular kind of publicity. [Its] sensitivity was “pocket book” sensitivity . . . The independent questions of the rights of a plaintiff who is genuinely seeking seclusion from surveillance and communication of what surveillance reveals, it may be argued, should be regarded as open to review in future cases even by courts bound by the High Court decision.’”
However, their Honours went on to conclude that the plaintiff in that case, a corporation, could not have a right to privacy. Accordingly:
“For these reasons, Lenah’s reliance upon an emergent tort of invasion of privacy is misplaced. Whatever development may take place in that field will be to the benefit of natural, not artificial, persons. It may be that development is best achieved by looking across the range of already established legal and equitable wrongs. On the other hand, in some respects these may be seen as representing species of a genus, being a principle protecting the interests of the individual in leading, to some reasonable extent, a secluded and private life, in the words of the Restatement, ‘free from the prying eyes, ears and publications of others’. Nothing said in these reasons should be understood as foreclosing any such debate or as indicating any particular outcome. Nor, as already has been pointed out, should the decision in Victoria Park.”
Gleeson CJ delivered perhaps the most cautious of judgments concerning the potential for development of a tort of invasion of privacy. I have already extracted his general cautionary comments about the common law method above in paragraph [221].
Gleeson CJ also sounded a specific note of caution about the development of the law, specifically in the context of privacy:
“But the lack of precision of the concept of privacy is a reason for caution in declaring a new tort of the kind for which the respondent contends. Another reason is the tension that exists between interests in privacy and interests in free speech. ... . There is no bright line which can be drawn between what is private and what is not. ... Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private. ... However, the foundation of much of what is protected, where rights of privacy, as distinct from rights of property, are acknowledged, is human dignity. ... .”
However, his reasons for decision can nevertheless be viewed as endorsing a greater focus on the protection of privacy in the development of common law principle:
“... The law should be more astute than in the past to identify and protect interests of a kind which fall within the concept of privacy. As Rehnquist CJ recently observed in a case in the Supreme Court of the United States concerning media publication of an unlawfully intercepted telephone conversation ‘Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks. These advances, however, raise significant privacy concerns. We are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations.’”
He also endorsed the approach, applied in the United States, of considering whether or not “disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities” as a “useful practical test of what is private”.
Callinan J said, in relation to the question of whether there should be recognition of a tort of invasion of privacy:
“Ultimately the questions involved are ones of proportion and balance. The value of free speech and publication in the public interest must be properly assessed, but so too must be the value of privacy. The appropriate balance would need to be struck in each case. This is not an unfamiliar exercise for all courts in all constitutional democracies. It seems to me that, having regard to current conditions in this country, and developments of the law in other common law jurisdictions, the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country, or whether the legislatures should be left to determine whether provisions for a remedy for it should be made. ... .”
Finally, Kirby J acknowledged the difficulty of the question of whether there might be an actionable wrong of invasion of privacy, after so many years in which the general understanding of Victoria Park Racing had been that there was no cause of action for breach of privacy in Australia. However, he preferred to postpone answering that question.
Although it would probably be putting it too high to describe Lenah Game Meats as an invitation,[291] the decision establishes that Victoria Park Racing does not prevent the recognition of a tort of invasion of privacy under Australian common law. Further (as I will discuss below), one can discern some encouragement for a greater focus on protection of privacy as a common law right in recent decisions of the High Court, including Lenah Game Meats. It is in this context that I turn to consider the decisions of first instance and lower appellate courts on this issue.
Grosse was the (self-described) first case in Australia to recognise an actionable cause of action for invasion of privacy. In that case, Senior Judge Skoien was considering whether the plaintiff had a claim for damages for stalking. In what he acknowledged was a “bold-step”, he concluded that the recognition of a civil action for damages for breach of privacy was a logical and desirable step in the development of the common law. In his view, the essential elements of such an action were: (a) a willed act by the defendant; (b) which intrudes upon the privacy or seclusion of the plaintiff; (c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities; (d) and which causes the plaintiff detriment in the form of mental, psychological or emotional harm or distress, or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.
It is these essential elements which Lynn submitted the Court should apply to her claim for invasion of privacy.
Doe v ABC was a decision of Judge Hampel of this Court, which I have already considered in relation to breach of confidence and breach of statutory duty. The plaintiff sought damages for invasion of privacy after the ABC published two news reports in which the plaintiff was named as the victim of two counts of rape. Judge Hampel held that the ABC was liable for breach of confidence, breach of statutory duty and negligence. Having done so, it was not strictly necessary for her to consider whether the plaintiff had a claim for invasion of privacy. However, after a detailed consideration of Lenah Game Meats and Grosse; the first instance decision of Gillard J in Giller v Procopets (which was subsequently overturned on appeal); and UK authorities, she concluded that a cause of action for invasion of privacy should be recognised:
“There will always be a tension between determining rights by reference to a developing cause of action, and declining to do so because no other court has yet done so. If the mere fact that a court has not yet applied the developing jurisprudence to the facts of a particular case operates as a bar to its recognition, the capacity of the common law to develop new causes of action, or to adapt existing ones to contemporary values or circumstances is stultified. ... [the cases] demonstrate a rapidly growing trend towards recognition of privacy as a right in itself deserving of protection. This trend, or development has also been reflected in other common law jurisdictions and academic writings. ... . ...In accepting the invitation [made by the High Court in Lenah Game Meats], I am doing no more than taking the next, incremental step in the development of the recognition of the right to protection against, or provide remedy for, breach of privacy by seeking to identify the principle applicable to the facts of this case.”
Judge Hampel expressly declined to attempt to formulate an exhaustive definition of the tort of invasion of privacy. However, the two indicia of liability her Honour relied upon in finding liability for invasion of privacy, in the circumstances of the case before her, were: (a) a publication of information that the plaintiff had a reasonable expectation would remain private; (b) which was unjustified, having regard to the absence of public interest in disclosure, the clearly private nature of the information, the prohibition on publication and the defendant’s failure to exercise reasonable care.
It may be observed that these indicia are both broader (in not requiring that the act be highly offensive to a reasonable person of ordinary sensibilities) and narrower (in relating only to publication of information) than those proposed in Grosse.
The question of whether a tort of invasion of privacy should be recognised was considered by the Court of Appeal in Giller v Procopets. The case concerned a claim for adjustment of property under the Property Law Act 1958, and claims for damages for breach of confidence; for the tort of intentionally causing mental harm; for assault; and for the tort of breach of privacy. The claims arose in a context of alleged domestic violence by the defendant against the plaintiff. At first instance, Gillard J had awarded the plaintiff damages for five assaults which he was satisfied had occurred, but dismissed the plaintiff’s claims for an adjustment of property and for damages for breach of confidence, breach of privacy and the tort of intentionally causing mental harm. The appeal was allowed, with the majority of the Court of Appeal upholding the plaintiff’s claim for an adjustment of property and breach of confidence, and increasing the damages awarded for assault. Neave JA, with whom Maxwell P agreed, concluded that it was unnecessary to decide whether a tort of invasion of property should be recognised as part of Australian law. However, she observed that:
“In recent years, two main approaches have emerged in response to claims that English, Australian and New Zealand law should recognise such a tort. The first – epitomised by Lenah Game Meats has been to develop existing causes of action to provide greater legal protection for privacy interests. English courts have not yet recognised an ‘over-arching, all-embracing cause of action of privacy’ but, as Campbell v Mirror Group Newspapers Ltd and Douglas v Hello! Ltd show, the Human Rights Act 1998 (UK) and the European Convention have provided the impetus for expansion of the action for breach of confidence to provide remedies to people who complain of publication of private matters. The second approach – exemplified by the decision of the New Zealand Court of Appeal ... is to recognise a new tort of invasion of privacy. ... .”
It is apparent that Neave JA’s understanding of the approach of the High Court’s decision in Lenah Game Meats differs from that applied in Grosse and Doe v ABC. Further, it was implicit from her reasons that her interpretation of the High Court’s approach was one she endorsed, relying upon it to support her conclusion that damages for mental distress were available for breach of confidence:
“This approach – of strengthening the protection afforded to privacy interests by existing causes of action – supports my conclusion that damages should be available for breach of confidence occasioning distress, either as equitable compensation or under Lord Cairns’ Act.”
Ashley JA stated that there was no “recognised” tort of invasion of property and concluded that, as a claim for breach of confidence was available to the appellant, it was unnecessary to consider whether a generalised tort of unjustified invasion of privacy should now be recognised.
Finally, Ultra Tune Australia Pty Ltd v Cole, Jennifer & Anor (No 3), is a recent decision of Daly AsJ in the Victorian Supreme Court. Her Honour was considering a claim for breach of statutory duty which she considered was “tantamount to a claim based upon a tort of breach of privacy, which has been said by the High Court to not be a tort recognised or recognisable by the common law of Australia”. Ultimately, Daly AsJ concluded that parliament would not have intended to impose a civil liability akin to a tort of breach of privacy without expressly doing so and with careful debate. Accordingly, she struck out the plaintiff’s claim for breach of statutory duty. Her decision is confined to the question of whether a breach of statutory duty existed, rather than whether Australian common law should recognise a cause of action for invasion of privacy.
The approach applied by the common law of the United Kingdom, New Zealand, Canada and the United States
I accept that, in broadbrush terms, there has been widespread acknowledgment of the existence of a tort of privacy in the legal systems of closely-related common law countries. As explained by Jelena Gligorijevic in her article “A Common Law Tort of Interference with Privacy for Australia: Reaffirming ABC v Lenah Game Meats”:
“... New Zealand has a tort of wrongful publication of private facts and a tort of intrusion into seclusion. The United Kingdom has a tort of misuse of private information. Canadian courts of different state jurisdictions have differing views about common law privacy torts standing independent of constitutional and legislative provisions, but Ontario has recognised a tort of intrusion on seclusion and a tort of wrongful publication of private facts. The United States privacy torts include a tort of giving publicity to private life, and a tort of intrusion upon seclusion.”
However, as is often the case, this broadbrush description of the international position reveals greater complexity and nuance when one descends to the details. The High Court has warned of the care that needs to be adopted in making broadbrush statements about the existence of a tort of invasion of privacy in other jurisdictions, particularly the United States.[303] The need for caution is particularly strong in this case, given I have heard only limited submissions in relation to the operation of any such tort in other jurisdictions.
Having said that, there is no doubt that the tort of privacy has a long pedigree in the United States. Understanding of this tort, at least at a superficial level, is aided by considering the Restatement (Second) of Torts on privacy, which effectively describes the existence of four separate actions:
“652A. General Principle (1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other. (2) The right of privacy is invaded by: (a) unreasonable intrusion upon the seclusion of another, as stated in 652B; or (b) appropriation of the other's name or likeness, as stated in 652C; or (c) unreasonable publicity given to the other's private life, as stated in 652D; or (d) publicity that unreasonably places the other in a false light before the public as stated om 652E. 652B Intrusion Upon Seclusion One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. 652C Appropriation of Name or Likeness One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy. 652D Publicity Given to Private Life One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, 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. 652E Publicity Placing Person in False Light One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, 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 publicized matter and the false light in which the other would be placed.”
However, in its practical application, the tort may be much more limited than would appear from these “sweeping” statements. The Restatement (Second) of Torts is also in the process of being replaced with a Restatement (Third) of Torts, and a section on defamation and privacy is in the process of being drafted and approved. I have no knowledge of the likely form of this section.
In the circumstances, I can draw little guidance as to Australian common law from the mere existence of this tort in the United States. Nevertheless, literature emanating from the United States in relation to the normative underpinnings of this tort may be of assistance in considering the development of an equivalent tort in Australia.
In that regard, the seminal article by Warren and Brandeis on the right to privacy, which was published in the 1890 edition of the Harvard Law Review, must be mentioned. That article, apparently inspired by press intrusion into the wedding of Warren’s daughter, was the bedrock upon which recognition of a right to privacy in the United States was built.[307] In evocative language, Warren and Brandeis propounded the case for the protection of privacy:
Of the desirability - indeed of the necessity - of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual ; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunates and frailties of our neighbours, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.”
Consistent with the time at which they were writing, Warren and Brandeis spoke of the advent of newspapers and the deleterious impact upon the community of their potential to spread gossip. However, if the passage is re-read and the word “newspapers” replaced with “social media” or “tabloids”, it is equally compelling. Their potent description of the negative sociocultural and intellectual impacts of broadcasting gossip for profit, and the concomitant need for the common law to protect a person’s right to be “let alone”, is remarkably prescient for the modern age.
Having performed no more than a whistlestop tour of the United States, I will turn to focus on the development of the law in the United Kingdom and New Zealand, two jurisdictions with which I am more comfortably familiar. In the New Zealand Court of Appeal decision of Hosking, photographs had been taken of the plaintiffs’ two children in a public place. The defendant was proposing to publish those photos as part of a piece on the impact of the marital breakdown of the two plaintiffs. Gault and Blanchard JJ delivered the majority judgment. They recognised the existence of a cause of action for interference with privacy, however held that it was not available on the facts of that case. They recognised two “fundamental requirements” for a successful claim:
“1. The existence of facts in respect of which there was a reasonable expectation of privacy; and 2. Publicity given to those private facts that would be considered highly offensive to an objective reasonable person ... .”
In a concurring judgment, Tipping J explained:
“... It therefore seems to me, with respect to those who do not share this view, that it is more jurisprudentially straightforward and easier of logical analysis to recognise that confidence and privacy, while capable of overlapping, are essentially different concepts. Breach of confidence, being an equitable concept, is conscience-based. Invasion of privacy is a common law wrong which is founded on the harm done to the plaintiff by conduct which can reasonably be regarded as offensive to human values. While it may be possible to achieve the same substantive result by developing the equitable cause of action, I consider it legally preferable and better for society’s understanding of what the Courts are doing to achieve the appropriate substantive outcome under a self-contained and stand-alone common law cause of action to be known as invasion of privacy. ... .”
In Hosking, the court found it unnecessary to determine whether there was a tort of intrusion upon seclusion. That question rose for determination in the case of C v Holland. The defendant had secretly taken videos of his flatmate’s girlfriend in the shower, using a handheld camera while hidden in the roof cavity above the ceiling area of the bathroom. There was no evidence that he had published these videos. Whata J held that the recognition of a tort of intrusion upon seclusion was a logical and necessary extension of the privacy tort which had been recognised in Hosking. He held that this tort required establishment of:
“ (a) an intentional and unauthorised intrusion; (b) into seclusion (namely intimate personal activity, space or affairs); (c) involving infringement of a reasonable expectation of privacy; and (d) that is highly offensive to a reasonable person.”
I referred above to the Baroness Hale of Richmond’s warning that the court cannot invent a general tort of invasion of privacy. Notwithstanding this warning, the case of Campbell may be viewed as one of the foundational cases for the recognition in the United Kingdom of a stand-alone tort of misuse of private information. Naomi Campbell brought proceedings against the Mirror Newspaper for publishing a front-page story revealing that Ms Campbell was a drug addict; and providing details of her attendance at Narcotics Anonymous meetings. The article included a photo of Ms Campbell on a public street in the doorway of a building, receiving a hug from two people. Five categories of information were identified as being disclosed by the article: (1) the fact of Ms Campbell’s drug addiction; (2) the fact that Ms Campbell was receiving treatment; (3) the fact that Ms Campbell was receiving treatment at Narcotics Anonymous; (4) what is described as the "details” of the treatment – “how long she had been attending meetings, how often she went, how she was treated within the sessions themselves, the extent of her commitment, and the nature of her entrance on the specific occasion”;[315] (5) the “visual portrayal” of Ms Campbell leaving a specific meeting with “other addicts”.
Ms Campbell conceded that she could have no cause of action with respect to categories (1) and (2), given she had made false public assertions that she did not take drugs. However, she claimed that categories (3), (4) and (5) entitled her to damages for breach of confidence. The House of Lords were divided on the result, but not on the principles to be applied. Each considered Ms Campbell’s claim within the rubric of existing principles of the action for breach of confidence, but with consideration of Articles 8 and 10 of the European Convention on Human Rights. Each concluded that an individual had a cause of action in circumstances where they established, first, that they had a reasonable expectation of privacy which was infringed and, second, that the infringement could not be justified when a balancing exercise was carried out in which the claimant’s right to privacy is balanced against other applicable Convention rights. Lord Nicholls suggested that this cause of action was better renamed as misuse of private information:
“The common law or, more precisely, courts of equity have long afforded protection to the wrongful use of private information by means of the cause of action which became known as breach of confidence. A breach of confidence was restrained as a form of unconscionable conduct, akin to a breach of trust. Today this nomenclature is misleading. The breach of confidence label harks back to the time when the cause of action was based on improper use of information disclosed by one person to another in confidence. To attract protection the information had to be of a confidential nature. But the gist of the cause of action was that information of this character had been disclosed by one person to another in circumstances ‘importing an obligation of confidence’ even though no contract of non-disclosure existed ... The confidence referred to in the phrase ‘breach of confidence’ was the confidence arising out of a confidential relationship.
This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship. In doing so it has changed its nature ... Now the law imposes a ‘duty of confidence’ whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Even this formulation is awkward. The continuing use of the phrase ‘duty of confidence’ and the description of the information as ‘confidential’ is not altogether comfortable. Information about an individual’s private life would not, in ordinary usage, be called ‘confidential’. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information.”
Lord Hoffman’s reasoning was also supportive of the re-categorisation of this cause of action away from its origins in the equitable action for breach of:
“The result of these developments has been a shift in the centre of gravity of the action for breach of confidence when it is used as a remedy for the unjustified publication of personal information. It recognises that the incremental changes to which I have referred do not merely extend the duties arising traditionally from a relationship of trust and confidence to a wider range of people. As Sedley LJ observed in a perceptive passage in his judgment in Douglas v Hello! Ltd ... the new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity—the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people. ”
Lord Hoffman and Lord Nicholls were in the minority in holding that Ms Campbell did not have a claim for damages. Each of the majority judges concluded that there had been an infringement of Ms Campbell’s right to privacy which could not be justified with respect to categories (3), (4) and (5). However, as I have already noted, the approach of each of the judges to the principles to be applied was largely concordant.
Murray v Express Newspapers Plc was a decision of the Court of Appeal on an appeal from summary judgment given against the claimant. The claimant was the child of a famous author, Mrs Murray. A photographic agency took a series of colour photographs of the claimant in a pram, in a public street, using a long-range lens. The photos were published in a newspaper. Murray sued the newspaper and the photographic agency. The newspaper settled the claim against it. The photographic agency did not, and successfully applied for summary judgment on the grounds that the child did not have a reasonable expectation of privacy when engaged in an innocuous, routine activity on a public street. The Court of Appeal allowed the appeal, holding that it was at least arguable that the child had a cause of action for the “domestic tort” of wrongful publication of private information.
By the time the claim by Meghan, Duchess of Sussex against the Associated Newspapers Limited was considered by the Court of Appeal, a “tort” of misuse of private information was so firmly cemented in the laws of the United Kingdom that it could found a summary judgment. The Court of Appeal had little hesitancy in describing the two stages of this newly-recognised tort. Stage one required the claimant to establish that she had a reasonable expectation of privacy. Stage two required consideration of whether, in all the circumstances, the privacy rights of the claimant should yield to conflicting rights, such as the right to freedom of expression, applying a proportionality test. The tort of misuse of private information is now embedded in the United Kingdom to the extent that it is included in tort textbooks. As explained by Lord Legatt in Lloyd v Google LLC:
“...the tort of misuse of private information evolved out of the equitable action for breach of confidence, influenced by the protection of the right to respect for private life guaranteed by art 8 of the Convention. The critical step in its emergence as a distinct basis for a claim was the identification of privacy of information as worthy of protection in its own right, irrespective of whether the information was imparted in circumstances which give rise to a duty of confidence. ... .”
The United Kingdom approach to the development of this new “tort” has been consciously and explicitly influenced by the European Convention on Human Rights, which has no application in Australia. However, the process by which the cause of action for misuse of private information has come to be developed and recognised is a useful illustration of the common law method in action. An existing cause of action (breach of confidence) was incrementally developed and expanded in a context of increasing recognition of the importance of the value of privacy. There was judicial acknowledgment that these developments had resulted in a cause of action underpinned by privacy, which had different elements to traditional breach of confidence and sat uncomfortably within its rubric. That acknowledgment ultimately led to the action being regarded as a standalone cause of action, now known as the tort of misuse of private information.
Finally, briefly, I conclude this review of the international authorities by noting that counsel for Lynn referred me to one Canadian decision, that of the Ontario Court of Appeal in Jones v Tsige, in which the Court of Appeal recognised the existence of a tort of intrusion upon seclusion, adopting the elements of the action for intrusion upon seclusion in the Restatement (Second) of Torts. In a number of other provinces, privacy is protected by statute, supplanting the need for development of a common law tort. This decision, taken alone, does not establish widespread common law recognition of a tort of invasion of privacy in Canada.
Can the recognition of a tort of invasion of privacy be viewed as an incremental development of the existing action for breach of confidence?
I draw the following guidance from my review of the cases thus far: (a) the common law allows for the development of legal principle; (b) however, the Court cannot simply invent a new cause of action wherever it considers it to be in the interests of justice to do so. The common law method requires judicial development of the law to be incremental; and to proceed logically or analogically from existing legal principles, rules and institutions; (c) no binding authority excludes the recognition of a cause of action for invasion of privacy. To the contrary, Lenah Game Meats confirms that the development of a tort of invasion of privacy is open. However, there is also a thread of caution running through each of the judgments delivered in that case – an emphasis on the need to ensure that any such development be in accordance with the common law method; and some encouragement to do so through the mechanism of developing existing causes of action; (d) this need for caution was also affirmed by the Neave and Ashley JJA in the Court of Appeal case of Giller; (e) comfort can be taken from the fact that a tort of invasion of privacy has been recognised in two first-instance decisions in Australia: Grosse and Doe v ABC. Ultra Tune was a case concerning breach of statutory duty and so does not expressly tell against the recognition of a cause of action for invasion of privacy. Comfort can also be taken from the recognition of a cause (or causes) of action for invasion of privacy in other common law jurisdictions. However, this in and of itself does not justify the “invention of a new tort”; (f) although determined in a different legislative context, the development of the tort of misuse of private information in the United Kingdom provides a useful example of the common law method in action. There, the action for breach of confidence was developed and expanded in response to the increasing recognition of the need to protect the human right to privacy. Ultimately, the extent of this development led to effective recognition of a separate and renamed tort of misuse of private information. In my view, this was also the approach adopted by the majority in Hosking (albeit at a perhaps less measured pace than in the United Kingdom), notwithstanding the dichotomy drawn by Neave JA (without the benefit of considering subsequent UK authority) between the approach in Lenae and in the United Kingdom; and the approach in Hosking.
Applying this guidance to the current case, my initial focus will be upon the question of whether the recognition of an actionable wrong of invasion of privacy can be viewed as an incremental development of the existing action for breach of confidence. It is only upon answering this question in the affirmative that I will turn my attention to the normative question of whether an actionable wrong of invasion of privacy should form part of the Australian common law.
In the foundational case of Coco, Megarry J explained that: “The equitable jurisdiction in cases of breach of confidence is ancient; confidence is the cousin of trust. ... .”
Megarry J identified the three essential elements of the equitable claim for breach of confidence as: (a) the information must be of a confidential nature; (b) the information must be imparted in circumstances importing an obligation of confidence; and (c) there must be an unauthorised use of that information to the detriment of the party communicating it.
The case of Coco concerned what may be called “classic” breach of confidence – an allegation that the defendants had used the plaintiff’s design of a moped engine to prepare their own engine. In this form, the action for breach of confidence provided a quasi-proprietorial protection for commercial-in-confidence disclosures and trade secrets. As such, its concern was principally with the control and harvesting of created economic value.
The primary concern of the action for breach of confidence with the protection of created economic value may be illustrated by considering that it was not until the Court of Appeal decision in Giller was delivered in 2008 that it became clear in Australia that a plaintiff could obtain damages for hurt feelings and distress in an action for breach of confidence.
Nevertheless, concerns with the protection of privacy have fed into the action from its early days. The case of Prince Albert v. Strange & Ors concerned various etchings of the Royal Family which Queen Victoria and Prince Albert had made and, from time to time, shared with their friends and family for their own private enjoyment. The defendant, Mr Strange, obtained copies of the etchings and proposed to exhibit them to paying members of the public and to publish a catalogue describing those etchings. The etchings which came into the possession of Mr Strange had been produced without authorisation by an employee of a printer who had been entrusted with the original plates by the Royal Family. There was no direct relationship between Mr Strange and Prince Albert. Mr Strange contended that he had no knowledge that the etchings had been improperly obtained. Nevertheless, the Lord Chancellor granted an injunction restraining Mr Strange, not just from exhibiting the etchings, but also from publishing a catalogue describing the etchings. In doing so, he emphasised that Prince Albert’s entitlement to an injunction lay, not just in property, but also “for a breach of trust, confidence, or contract”. The Lord Chancellor’s concern for the protection of the privacy of the Royal Family runs through his judgment: “In the present case, where privacy is the right invaded, postponing the injunction would be equivalent to denying it altogether”.
In the years since the age of Queen Victoria, these disparate values have continued to be housed within the rubric of confidential information, and via the application of the essential elements identified in Coco. At times, though, the application of those essential elements to cases concerned principally with the protection of individual privacy, has been strained. Thus, in AFL v The Age, in which an injunction was sought refraining two newspapers from identifying AFL players who had tested positive to illicit drugs. The positive drug tests were held to be confidential information, notwithstanding the fact that they had been disclosed on internet discussion sites. In reaching this conclusion, Kellam J focused on the question of whether speculation, gossip or assertion from an anonymous source could be regarded as placing the information in the “public domain”. In Day, an injunction was sought restraining newspapers from publishing the identity of an informant. The identity of this informant had already been disclosed on two Channel-10 broadcasts. After a detailed review of the authorities, Yeldham J concluded that: “... at least in cases not concerning trade secrets where full disclosure is made, the mere fact that some publication has occurred is not in itself a reason for declining to protect the plaintiff’s right to confidentiality. ... .”
He noted that the disclosures on broadcast television were “transitory and brief” and “limited and impermanent” and concluded: “Where, as here, there has been a limited publication of the plaintiff’s name without his knowledge or approval, where he is entitled, to the knowledge of a newspaper publisher, to expect anonymity, and where any unauthorized publication of his identity will probably be to his detriment, I do not consider that the court should be astute to deprive him of relief merely by reason of that limited publication. ... .”
Finally in Doe v ABC, the plaintiff had disclosed her rape to fourteen close friends and associates. Her name was also known to those involved in investigation, prosecution and defence of her rapist and had been stated in open court. Nevertheless, the court held that her identity was confidential.
In each of these cases, the court’s focus in considering whether the information was relevantly “confidential” for the purposes of the first limb of the elements identified in Coco, extended beyond the mere extent of disclosure to concerns of individual fairness and justice (that is, should the plaintiff be deprived of relief) and the likely impact on the dignity of the plaintiff.
By contrast, when considering trade secret cases, the courts have shown themselves to be much more concerned with: (a) whether there was some direct obligation of confidence arising from the relationship between plaintiff and defendant; and (b) if not, whether the information (or at least some meaningful part of the information) could be construed as secret.
These contrasting categories were recently described by Edelman J in the recent decision of Farm Transparency International Ltd v New South Wales:
“The equitable wrong of breach of confidence is an overarching doctrine. It can only be understood by appreciating that it encompasses three overlapping and closely related categories concerning information that is private, in the sense of information that is not publicly available. The first category is private information that arises in the course of a relationship of confidence. The second category is private information that is secret. The third category is private information that is personal in the sense that it concerns the dignity of an individual.”
Edelman J’s description illuminates the point that, where information is personal in the sense that it concerns the dignity of an individual, it may be protected, notwithstanding the fact that it is not secret (that is, does not fall within the second category), and notwithstanding the fact that it was not disclosed in the course of a relationship of confidence (that is, does not fall within the first category).
Edelman J went on to recognise that, in the case of personal information, there may be utility in recognising “a separate category concerning personal information” due to the “potential wrongfulness of communicating or publishing such information even where, to some degree, it is in the public domain”. As he explains it: “... It may be that personal information should be protected not merely where the information is secret, but also where further disclosure would compromise foundational interests of human dignity and autonomy. ... .”
Edelman J considered the availability of this cause of action to corporations, stating: “At its narrowest, the present state of the law concerning the third category of breach of confidence is, therefore, that it can extend to all private information where human dignity is concerned. In that category, it cannot be conclusively said that it extends to corporations or that human dignity would be compromised by the communication of any private information.”
The differing considerations applicable to corporations in relation to privacy were also recognised by Gummow and Hayne JJ (with whom Gaudron J agreed) in Lenah Game Meats. They noted that: “... Whatever development may take place in [the field of privacy] will be to the benefit of natural, not artificial persons. It may be that development is best achieved by looking across the range of already established legal and equitable wrongs.”
Gleeson J also noted that: “... the foundation of much of what is protected, where rights of privacy, as distinct from rights of property, are acknowledged, is human dignity. This may be incongruous when applied to a corporation. ... .”
Kirby J noted the doubts as to whether a corporation can be viewed as enjoying any common law right to privacy, although he did not express an opinion on the issue. Callinan J, on the other hand, did not “rule out the possibility” that a corporation could enjoy a right to privacy. However, it is apparent from his reasoning (focusing on profiting from a spectacle), that he was not concerned with privacy in the sense which I am addressing here, that is, privacy founded in human dignity and autonomy. Thus, situated under the umbrella of the current action for breach of confidence, there lies a category of case which: (a) is founded on the fundamental common law right to privacy and the recognised value in protecting human dignity and autonomy, rights and values which are not held in common with other breach-of-confidence cases; (b) is more restricted in availability than other breach-of-confidence cases, in that only individuals can be said to have a right to privacy founded in human dignity and autonomy; (c) is also broader in scope, in that: (i) what has been accepted by the courts as “confidential” for the purposes of a claim raising privacy concerns, is broader than has been accepted as “confidential” for the purposes of trade secret claims; and (ii) liability may arise “because [of] an objective assumption of responsibility” that is independent of “subjective knowledge”; and (d) carries with it differing remedies, including the availability of damages for mental distress. Thus, Neave JA held in Giller that equitable damages for mental distress were available where: “... the essence of the plaintiff’s case is that he or she has been embarrassed by the exposure of private information, rather than that the defendant has profited from the wrongful use of that information. ... .”
The case for recognising this existing category of case as a standalone cause of action, separate and distinct from the action for breach of confidence, is compelling.
First, to do so is consistent with the common law method I have described above, and the process (if not necessarily the substantive principles) adopted in the United Kingdom and New Zealand. It is not to suggest that a cause of action for invasion of privacy be invented, but rather to recognise that one already exists, albeit currently subsumed under the “overarching doctrine” of an action for breach of confidence. In the words of Sedley LJ: “To say this is in my belief to say little, save by way of label, that our courts have not said already over the years. ... .”
Second, where two categories of case are based on such fundamentally-different underlying values, it makes sense to deal with them quite separately. As pithily explained in the Warren and Brandeis 1890 article, this enables the protection of things which are “in their nature material rather than spiritual” to be considered separately from matters which “in reality [are] not the principle of private property, but that of an inviolate personality”.
The centrality of dignity and autonomy to concepts of privacy was explained at length by Jelena Gligorijevic in “A Common Law Tort of Interference with Privacy for Australia: Reaffirming ABC v Lenah Game Meats”:
“Privacy’s value to the individual rests predominantly upon its safeguarding of human dignity, thereby protecting individual personhood. Insofar as privacy shields individuals from observation by others, recognising individuals are not merely entities which can and therefore should be observed, it is consistent with the Kantian vision of dignity, that human beings are categorically recognised as having inner self-worth so as to be an end in themselves, and that, subsequently, no individual should be used solely as a means to an end. Private information should not be commodified and traded for profit, given invasions of privacy ‘injure [individuals] in their very humanity’. Privacy understood as normative barriers erected around certain aspects of an individual’s life draws upon dignity as a categorical imperative: even when I disclose certain information, I do not automatically entitle others to seek out and take all information about me. Privacy enables individuals to keep from the public aspects of their lives, behaviour and beliefs, allowing them to come to terms with their own identity, and with those things that ensure they ‘live well’, without pressure or bias of public judgment or humiliation. Dignity justifies privacy in shielding core aspects of every individual’s life that we ‘have been socialised into concealing’, including ‘deeply primordial’ matters of the human body, exposure of which ‘creates embarrassment and humiliation’.
Dignity is conceptually proximate to individual autonomy, which has also been furthered as justifying privacy protection: privacy is an individual’s ability to control her own life, including how much others know about her life. This control enables her to realise, independently and without intrusion, that which defines her inner worth and ability to ‘live well’. The ‘barriers’ conception draws upon autonomy, given the strongest barriers to intrusion result from individuals exerting control over their lives and defining who has access: ‘If the intimate details of my life are disclosed without my consent ... then even the truth of that disclosure cannot undercut the fact that something that is essentially mine to control has been taken from me’.
Control encompasses choice. An individual in control of her life can choose how to live, what to think, how much information about herself to share with others, and whom to let in to her personal space. Being able to reason, privately, about aspects of her life that are socially controversial or morally unsettled (for example, whether to have an abortion) allows an individual to make that choice freely, and ensures that choice is her own: ‘[p]rivacy is essential to ... free choice’. Autonomy-based privacy is not, therefore, necessarily dichotomous with publicity. In exercising his privacy right, an individual might choose to vitiate privacy. That ability to choose is more important than the outcome, placing control and choice at the normative heart of privacy.
The centrality of control and choice render privacy a precondition for individual liberty. The power of choice secured by privacy gives individuals freedom to act, reason, deliberate, socialise, and develop themselves without constraints of society, pressures to conform, or pressures to maintain a particular status quo: ‘There is a minimum level of opportunity for choice ... below which human activity ceases to be free in any meaningful sense’ and so the ‘horror of uniformity, conformism and mechanisation of life is not groundless’.
Other individual-centric justifications for privacy protection can be observed in how denial of privacy adversely affects individual interests: psychological sanctity and feelings of safety and security; the ability to be intimate and sincere with others and to cultivate meaningful relationships with others including within the family unit; preparedness to reflect upon one’s actions, decisions and opinions and to evolve as an intellectual being; and willingness and ability to participate in one’s society and cooperate with others with confidence and self-respect.”
The significance of this distinction has now been emphasised in many cases, both at trial and appellate level and in Australia and overseas. It was the driving reason behind the recognition of a tort of invasion of privacy in Hosking. As Gault J stated:
“...we consider that it will be conducive of clearer analysis to recognise breaches of confidence and privacy as separate causes of action. We say immediately, and emphasise, that we are not to be taken as establishing a general cause of action encompassing all conduct that may be described as invasion of privacy. ... .”
And:
“Privacy and confidence are different concepts. To press every case calling for a remedy for unwarranted exposure of information about the private lives of individuals into a cause of action having as its foundation trust and confidence will be to confuse those concepts.”
The distinction was explicitly recognised by the course of the development of the tort of misuse of private information in the United Kingdom. As explained by Lord Hoffman:
...the new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon protection of human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people.”
In Australia, in addition to the passages cited previously, the distinction was implicitly acknowledged by Gleeson CJ, when he cited the following passage by Laws J in Hellewell v Chief Constable of Derbyshire:
“... If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. It is, of course, elementary that, in all such cases, a defence based on the public interest would be available.”
In Lenah Game Meats, Gummow and Hayne (with whom Gaudron J agreed) recognised that there is a distinction between the interest of a corporation (or indeed an individual running a business) “in the profitable conduct of its business” whose “sensitivity is that of the pocket book”; and the interest of an individual “subjected to unwanted intrusion into his or her personal life” who “seeks to protect seclusion from surveillance and to prevent the communication or publication of the fruits of such surveillance”.
Human dignity and autonomy cannot comfortably sit under the same overarching umbrella as protection of material interests and property rights. The two are fundamentally different and justify different forms of protection.
Third, maintaining the two together has, in the past, under the umbrella of breach of confidence has muddled principles and led to anachronisms and inconsistencies, such as the straining of the meaning of the words “confidential” and “public” in cases such as AFL v The Age. The words “confidential” and “private” are not interchangeable. What is private may be best thought of as a metaphysical space or sphere around a person’s acts, beliefs and identity, defined in contradistinction to public. What is confidential imports matters disclosed (or confided) “in confidence” – that is, it focuses on secrets, relationships and obligations, rather than a protected sphere. Things may be private (and have been protected by the courts as private), even though they cannot fairly be described as “confidential”. Fourth, separating invasion of privacy from its origins in breach of confidence will enable the future principled development of the cause of action in accordance with those underlying values. As explained by Des Butler:
“... Here, the disclosure tort differs from the action for breach of confidence. Under the latter, once the information reaches the public domain it is no longer capable of protection. However, a reasonable expectation of privacy test is capable of protection. However, a reasonable expectation of privacy test is capable of greater flexibility. It is able to provide a principled basis for justifying why information, which has only had a limited release, should still be capable of protection...”
In the words of Sedley LJ in Douglas:
“What a concept of privacy does, however, is accord recognition to the fact that the law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.”
Fifth, recognising this category of case as deserving of a separate cause of action in its own right accords with the shift towards more explicit recognition of the importance of privacy as a fundamental common law right. That shift is driven by the greater explicit recognition given to fundamental human rights. The common law can and should be influenced by the protection given to privacy under Article 17 of the International Covenant on Civil and Political Rights, which has been ratified by Australia: “1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, not to unlawful attacks on his honour and reputation. ... .” Thus, the centrality of the value of privacy has been emphasised in recent High Court decisions, including Clubb v Edwards, in which Kiefel CJ, Bell and Keane JJ said:
“Aharon Barak, a former President for the Supreme Court of Israel, writing extrajudicially, said: ‘Most central of all human rights is the right to dignity. It is the source from which all other human rights are derived. Dignity unites the other human rights into a whole.’ ... ... As Barak said, ‘[h]uman dignity regards a human being as an end, not as a means to achieve the ends of others’. Within the present constitutional context, the protection of the dignity of the people of the Commonwealth, whose political sovereignty is the basis of the implied freedom, is a purpose readily seen to be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. ... .”
Sixth, there is an increasingly urgent need to protect privacy in the world of telephoto lenses, deepfakes, social media and clickbait. I will return to this issue later in these reasons.
Seventh, one argument that has been made against the creation of a tort of invasion of privacy is that it is a matter that should be left to the legislature. Although this may be viewed as standing in the way of the creation of a tort of invasion of privacy, the argument does not apply with the same force to the recognition of a tort of invasion of privacy.
Finally, an action for invasion of privacy protects a distinct interest, not protected by, or conflicting with, existing torts outside breach of confidence. Thus: (a) the torts of defamation and injurious falsehood protect reputation against false statements; (b) the tort of negligence protects breaches of duty of care for one another and provides damages for mental distress in only limited circumstances; and (c) equitable actions outside breach of confidence have, as their focus, protection of proprietary interests or the sanctity of relationships.
In conclusion, it should be recognised that an action for invasion of privacy forms part of the common law of Australia. Although historically this action has been housed under the overarching doctrine of breach of confidence, it is better viewed as separate and distinct from the action for breach of confidence. This does not amount to the creation of a tort, but rather a recognition of the bifurcation which has developed in relation to the action known as breach of confidence, between actions which at their heart protect confidential trade information; and actions (available only to natural persons) which at their heart protect human dignity in privacy. It is proposed to elucidate that bifurcation, by renaming the latter category as an action for invasion of privacy.
With greatest respect for Senior Judge Skoien, I prefer not to attempt to define the essential elements of this action. There is much merit in Callinan J’s caution that:
“The recognition of a tort of invasion of privacy as part of the common law of Australia does not involve acceptance of all, or indeed any of the jurisprudence of the United States which is complicated by the First Amendment. There is good reason for not importing into this country all of the North American law particularly because of the substantial differences in our political and constitutional history. Any principles for an Australian tort of privacy would need to be worked out on a case by case basis in a distinctly Australian context.”
I would add that the rationale underlying this caution applies equally to the importation of the essential elements of the tort in the United Kingdom, which was developed in the particular context of the Human Rights Act 1998 (UK).
However, relief should continue to be available, at a minimum, in the circumstances where it has been available in the past – that is, the making public of private matters in circumstances that a reasonable person, standing in the shoes of the claimant, would regard as highly offensive.
I think it also preferable to leave for others the question of the availability of defences to such a cause of action, including defences which aim to protect other important rights, such as the constitutional right to political free speech. Clearly, any development in this cause of action “would need itself to follow a path consistent with the constitutional guarantee of freedom of political communication”. This may require careful attention to be paid to available defences. However, there has been no suggestion that such a defence would arise in the present case.
I also respectfully decline to express a concluded view on the question of whether the action for invasion of privacy is better viewed as an equitable or tortious cause of action. There is some force in the view that this action, with its locus being wrong to the person and mental harm, rather than property and relationships, more naturally belongs in the law of tort. However, since Giller, damages for mental distress have been available in equity for breach of confidence. In common law, damages for distress are available in the analogous tort of defamation. Whether this action is homed in tort or equity, Lynn would be entitled to the relief she seeks. Accordingly, it is not necessary for me decide this issue. ...
Application to the facts of the present case
What is necessary for me to decide is whether the action for invasion of privacy would respond to the facts of the present case, and particularly to item 3, the statement that Lynn had apologised to Romy. Herein lies the substance in the form, as it were. The separating out, and renaming of, that part of the action of breach of confidence, which is exclusively concerned with individual privacy and therefore human dignity, enables greater focus to be placed on the values and rights underpinning that cause of action, without doing etymological violence to the words “breach of confidence” and “confidential information”.
This, then, permits one incremental step to be taken. That is, the recognition that an actionable breach of privacy can occur even though the Court is not satisfied that there has been a disclosure of factually-correct “information”. Such an incremental step is not without precedent. Cases concerning images or footage have always fitted awkwardly within the rubric of confidential information. Further, in Campbell, the House of Lords seemed unconcerned by the fact that much of the “information” disclosed as to frequency and duration of treatment and as to whether Ms Campbell was coming or going, was inaccurate. Of far greater concern to the majority was the impact of the material published on Ms Campbell’s privacy and dignity and treatment for drug addiction.
Extending the cause of action in this manner follows naturally from an understanding of the cause of action as based in protection of privacy and human dignity, rather than a quasi-proprietorial understanding of “information” as having economic value and therefore being worthy of protection. As the extracts from academic writings above demonstrate, the concern of the action for invasion of privacy is not so much protecting private information, but protecting a private sphere within which human dignity and autonomy can be furthered. To provide one more pertinent quote from the academic writing:
“... Privacy is a form of opacity, and opacity has its values. We need more shades and more blinds and more virtual curtains. Someday, perhaps, we will look back with nostalgia on a society that still believed opacity was possible and was shocked to discover what happens when it is not.”
This quote foreshadows another important rationale for extending the action for invasion of privacy in this manner. The world in which we now find ourselves is one of deepfakes, including deepfake pornography; a decline in market share of big media; and the pervasive, “democratising” force of social media. To establish their privacy has been invaded, is a plaintiff to be required to prove that a sex tape is “real”? Must a plaintiff suing because a viral social media post is written concerning their sexual preferences, first establish, by admissible evidence, their sexuality? If the social media post is false, or the video a fake, is a plaintiff’s only recourse the law of defamation? What if the matters disclosed are intensely private, but not defamatory? If the action is so limited, an aggrieved person would effectively be placed into a catch 22: to obtain relief they would need to establish the truth of matters said about them, thereby exposing their intimate life even further. Meanwhile, the defendant who makes inaccurate public statements about intensely private matters is in a better legal position (and probably has more “clicks”) than the defendant who properly fact checks and makes only accurate statements. Warren and Brandeis put it this way, back in 1890:
“The truth of the matter published does not afford a defence. Obviously this branch of the law should have no concern with the truth of falsehood of the matters published. It is not for injury to the individual’s character that redress or prevention is sought, but for injury to the right of privacy. For the former, the law of slander and libel provides perhaps a sufficient safeguard. The latter implies the right not merely to prevent inaccurate portrayal of private life, but to prevent its being depicted at all.”
As Tipping J said more recently in Hosking:
“... Privacy is potentially a very wide concept; but, for present purposes, it can be described as the right to have people leave you alone if you do not want some aspect of your private life to become public property. ... . ...It is of the essence of the dignity and personal autonomy and wellbeing of all human beings that some aspects of their lives should be able to remain private if they so wish. ... .”
And, in “A Common Law Tort of Interference with Privacy for Australia: Reaffirming ABC v Lenah Game Meats”:
“Another upshot of the scholarship is that the normative demand for privacy protection in law should not artificially be limited to protection of informational privacy, separately from protection of physical privacy: if there is a normative basis for privacy protection, it underpins both constructions of privacy. The concerns of dignity, autonomy, liberty, psychological well-being and security, intimacy, intellectual development, and social value of privacy, all require adequate protection of both informational and physical activity.”
If privacy is understood as a barrier or shield around a person’s private domain, rather than a quasi-proprietorial right over particular information, it is apparent that invasion of privacy does not depend on any requirement that the information disclosed to the public be either true or false – the nub of the harm done is not what was said, but that the private sphere was made public; and the dignity of the person violated. Further, extending the right to relief in this manner does not unduly threaten the implied constitutional protection of freedom of political communication, or other important common law rights such as freedom of speech. If a right of privacy exists to prevent true publications about one’s private sphere, it can scarcely be an impermissible infringement on free speech to allow a cause of action where untrue publications concerning a person’s private sphere are made. I have concluded that it should be recognised that a distinct action for invasion of privacy forms part of the common law. The underlying principle to be protected by this cause of action is privacy and the human dignity that is associated with the maintenance of privacy. When one considers privacy as not so much protecting specific information, but rather as maintaining opacity, or a private sphere, it follows naturally that a plaintiff ought not be required to prove that the information disclosed concerning their private sphere was, in fact, true. There is nothing in the underlying policy of a tort of invasion of privacy which requires that this be an element. It is but a slight, incremental, development to say that it does not.
