New discussion of a statutory tort of privacy

September 23, 2012 |

The Australian newspaper has consistently opposed the concept of a statutory right to privacy.  It has been very open about that.  That is fair enough. It is not an issue with only one legitimate viewpoint.  But it is better if any commentary on the issue is logical and factual.  On Friday Associate Professor Ainslie Van Onselen penned an opinion piece, The push for a tort is misguided and wrong.  It is found here (behind the pay wall).  It  is not the best contribution to the debate being in the main a polemic and in places wrong. It does however warrant a detailed response.

It provides (with my response where appropriate):

Recent reports indicate that there may be some development in a statutory tort of privacy being considered.

FEDERAL cabinet has had a sudden rush of blood to the head if reports this week are correct that it is to consider enacting a statutory tort for invasion of privacy.

Does the issue arise out of the February Finkelstein report into the media and regulation? No.

Given that it was September last year when a discussion paper on the statutory right of privacy was released and the responsible Minister, Brendan O’Connor discussed this on AM on Thursday 21 July 2011 it is hardly a new matter or one that arises from the  Finkelstein report.  It has been discussed as a possible law reform before the Australian Law Reform Commission (“ALRC”) released Volume 108 in 2008. 

Finkelstein, in his 474-page report to Minister for Broadband, Communications and the Digital Economy Stephen Conroy, addressed one  paragraph – 48 words  – to  the  tort  or  lack thereof in Australia. He did not advocate for reform but simply noted that the Australian Law Reform Commission recommended it in 2008.

And….. All of this assumes the government’s actions are tied to the Finkelstein report.  Of which there is only supposition by Van Onselen.

Finkelstein goes on to outline (as the Law Council of Australia did to the ALRC in 2007 when advocating  against a statutory tort of privacy) the myriad regulatory protections in Australia to protect  an individuals’ privacy rights including:

  •  The well-developed  cause of action for breach of confidence.

He did not say that.  He relevantly stated:

5.113     Courts will restrain the publication of confidential information. Confidential information is particular information that has some quality of confidence, secrecy or privacy about it, which is communicated in circumstances that show it is confidential, secret or private. It could be a trade secret, government information or other personal or private information. An action will lie against a person who makes unauthorised use of such information. In some cases, the court will intervene if the confidential information was ‘improperly or surreptitiously obtained’.

5.114     While there is no ‘public interest defence’ to a breach of confidence claim, where the information would disclose iniquity (a crime, civil wrong or serious misdeed of public importance), it is unlikely the court will intervene to restrain the publication.


5.116     It is sometimes said that the action for breach of confidence does some, or all, of the work that a tort of privacy might perform. In the United Kingdom, extensions in the law relating to confidential information mean the action can cover misuse or wrongful dissemination of any private information. This has been achieved by doing away with the requirement that the information should have been imparted in confidential circumstances. Now there is almost an automatic protection for private information.

Privacy and other restrictions

5.117     Australian law does not yet recognise a tort of privacy. It was partly for this reason, and partly to ensure the consistent and uniform development of the law in this area, that the ALRC recommended the enactment of a statutory right of action for serious invasions of privacy.

5.118     Beyond an action for breach of confidence, some protection for an individual’s right to privacy exists in legislation that prevents the disclosure of information obtained from unlawful surveillance of private activities, the identities of victims of sexual assault and the identities of children involved in certain proceedings.

Finkelstein’s commentary  is a long way from a “well developed cause of action for breach of confidence.” At best he is neutral on the protections in Australia, using the preface “It is sometimes said..” when discussing an action for breach of confidence. A more accurate reading is that the author highlights a possible action but goes no further than that.  He does not say it is well developed or even on a par with that which exists in the UK.
  • The array of state and federal privacy legislation that controls the collection, use and dissemination of personal information.

Again Ass Prof Van Onselen oversells.  What Finkelstein actually said which was:

5.119     There is also a range of privacy legislation that controls the collection, use and disclosure of personal information though that legislation is fragmented across jurisdictions and is inconsistent.

Finkelstein pointed out that the legislation is both fragmented and inconsistent.  He certainly did not raise this issue in the context of a need or otherwise for a tort of privacy.  He stated what is common throughout the common law jurisdictions.  Privacy legislation generally covers information on government or organisation databases.  It does not cover the field and is generally not relevant in determining whether a statutory right of privacy is warranted or not.  In short, a furphy by the Proff.

  • The various  legislation that serves to thwart the disclosure of information obtained from unlawful surveillance of private activities, the identity of children in particular proceedings or the identity of sexual assault victims.

What Finkelstein said was:

5.118     Beyond an action for breach of confidence, some protection for an individual’s right to privacy exists in legislation that prevents the disclosure of information obtained from unlawful surveillance of private activities, the identities of victims of sexual assault and the identities of children involved in certain proceedings.

None of that is inconsistent with protections in other jurisdictions which have a stand alone tort of privacy (such as New Zealand) or a cause of action for the misuse of private information (the UK).  It is fairly standard part of a legislative protections established to deal with particular situations.  Absent reference to unlawful surveillance of private activities (of which the protections are hardly comprehensive) the other protections rarely rate in any discussion regarding a tort of privacy.
  •  An owner’s  right  to control what happens on her or his own property; and

This is hardly new material.  It states the obvious but hardly goes to the adequacy or otherwise of privacy protections.  Telephoto lenses have made the control of one’s property,with attendant legal rights, as sufficient protection of privacy sometimes quite moot.

  •  Restrictions on the  press to publish some sporting events.

This is hardly relevant in the debate.  On this point Finkelstein said:

5.121     The other concerns organisers of sporting events. They are increasingly making use of contracts to impose conditions on the press to restrict what may be published about the sporting event. The restrictions are usually imposed to protect the exclusivity of broadcast rights granted to a media outlet.

What Finkelstein did was provide a brief overview.  He did not laden that part of his report with a detailed analysis or provide his own views.  It was provided for context.  For Ass Prof Van Onselen to characterise it identifying a “..myriad regulatory protections in Australia to protect  an individuals’ privacy rights…” distorts what the Finkelstein report said and its import.

And that is not to mention the pre-existing causes of action for trespass and nuisance and the myriad  self-regulating  media bodies that address the issue of privacy.

The trespass action is the right to control what happens on ones own property.  As to self regulating media body they are just that, self regulating.  The critisism of this self regulation has been so sustained as to be notorious.  Having guidelines and rules gives no citizen any rights per se.  It is a basis to make a complaint to the “myriad” of bodies whose rulings can be complied with or ignored.

So notwithstanding that we have managed to judicially navi­gate without the need for such a tort since Captain Phillip first raised the British flag at Sydney Cove in 1788, this government has seen a sudden need to bring the issue to a head.

This is a twee point that goes nowhere.  Beyond a debating flourish it is hard to see, or understand, what “..we have managed to judicially navigate with the need for such a tort..” actually means.  Such a sentiment might have been expressed about the need for the tort of negligence prior to 26 May 1932 when the House of Lords gave a judgment that Donohue had a cause of action against Stevenson.  Nobody seriously suggests that the law of negligence is not a relevant and important part of common law jurisprudence.  It may be critisised in its application from time to time but it filled a gap which created injustice before then and would today if it was abolished.   Some might say having privacy protections at an earlier time would have been a public benefit.  This issue has been the subject of debate for some time in the community and the law.  Legally, cases involving privacy related claims in equity date back to 1825 with Prince Albert v Strange . In 1937 in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 the plaintiff commenced proceedings and took the matter to the High Court seeking enforcement of privacy rights.  So at least one party has sought privacy protections in the past.  That there has been no tort in existence does not mean it would not have been appropriate to have such an action at some stage between the raising of Captain Phillip’s flag and now.  That it has not happened means nothing historically or jurisprudentially. As for bringing matters to a head the issue has been subject to a discussion paper and no shortage of ink spillage in the last 12 months (and more) as well as significant academic interest in the past (have a review of the footnotes to the ALRC report).  What exactly does Ass Prof Van Onselen expect to happen, a three to four year lead time with a travelling committee to cover ground already exhaustively covered by the ALRC and the discussion paper.  Van Onselen characterises the issue as being a headlong rush to decision. That misconstrues the situation. Her argument could be characterised as being two pronged; first, there is no need for this tort and secondly, if we are to go down this path lets do it really, really slowly and put off the fateful day until the issue loses momentum.  Kick it down the road ad finitum.  Not a bad political strategy but poor policy.

Why? Because a flagrant loophole has been discovered?

It is not a question of loophole (a rhetorical flourish no doubt).  Here is a possible reason for consideration, perhaps because there is a need identified by the ALRC and this government wishes to consider it after issuing a discussion paper and receiving submissions.  Perhaps and probably as simple as that.  It is hardly an extraordinary development.  It is often as good a reason as any and better than most.

Is an Australian tabloid threatening to publish the recent photographs of Kate Middleton sunbathing topless on a terrace in the south of France? No.

This is another self serving rhetorical flourish.  But to be consistent, no, Kate Middleton’s state of undress caught on film is not the issue.  The reason is more prosaic.  The Australian Law Reform Commission puts out a report recommending a statutory right of privacy, the government issues a discussion paper and now the Government looks at the issue at a Cabinet Level.  It happens.  The wheels turn slowly but they turn.  The fact that it is being reportedly considered at a time proximate to this incident is neither here nor there.  Unless of course Ass Prof Van Onselen has information which is not disclosed in her article.

Every publisher in the country has avowed it won’t due to the existing regulatory framework.

Due to existing regulatory framework?  Really?  Stating which ones would have been a better way of advancing an argument. The more relevant consideration for publishers here is that, like the UK papers and magazines, publication of such photographs given the tacky circumstances would be courting disaster with the public. The publishers have opted for the high road for, I suspect, commercial and publicity reasons.

And the irony, of course, is that the very country that these photos were published in, France, actually does have a robust history of privacy jurisprudence.

Not much irony there.  Privacy laws, like defamation laws and consumer protection legislation exist to provide protections but do not guarantee breaches will not occur.  That is why they have enforcement provisions.  Having legislative privacy protections does not stop interferences with privacy. It does give the victim an opportunity to take action arising out of them and taking steps to prevent a repetition.

The urgency could spring from the media reporting of the death of teenager Molly Lord following a quad bike accident in July.

This is speculation pure and simple.  Van Onselen provides not a stitch of evidence to support this contention.  And given earlier comments about the process of consideration of a statutory right of privacy commencing with a discussion paper in September last year the evidence pushes in another direction.

Long-range images of Molly lying face down under a sheet with her legs and feet visible while her mother was in great distress nearby were broadcast on WIN News. The Fairfax Media’s Illawara Mercury also ran a photograph of the image. It is understood the girl’s mother has complained to Conroy regarding the reporting and that the matter is subject to pending legal proceedings.

All very true but so what.

As unfortunate as this reporting was, however, there appears to be sufficient legal protections to protect and remedy the family of the teenager.

Beg to differ.

Leaving aside a cause of action for breach of confidence,

Whether a breach of confidence action would succeed in Australia is far from certain.  There is one superior court authority, Giller v Procopets.  The majority adopted the principles set out in Campbell v MGN Ltd and Douglas v Hello particularly in the context that psychological damage is no longer required, distress will suffice.   But whether the Australian courts will fulsomely follow the UK line of authorities or otherwise presume confidence in situations such as this is not known. But the bigger point is that adapting breach of confidence to deal with private information is complicated and a confused means of providing privacy protection.  The English law have used section 8 and 10 of the Human Rights Act as well as breach of confidence principles to provide a more structured approach to such a cause of action.  In practice UK law is moving to a merger of breach of confidence equitable principles in conjunction with  the use of the Human Rights Act .   McKennitt v Ash best describes the status of UK law when the Court of Appeal stated, at  [8]:

8.    It will be necessary to refer to the underlying law at various stages of the argument, and it would be tedious to repeat such reference more than is necessary. Since the content of that law is in some respects a matter of controversy, I set out what I understand the present state of that law to be. I start with some straightforward matters, before going on to issues of more controversy:
i)    There is no English domestic law tort of invasion of privacy. Previous suggestions in a contrary sense were dismissed by Lord Hoffmann, whose speech was agreed with in full by Lord Hope of Craighead and Lord Hutton, in Wainwright v Home Office [2004] 2 AC 406 [28]-[35].
ii)    Accordingly, in developing a right to protect private information, including the implementation in the English courts of articles 8 and 10 of the European Convention on Human Rights, the English courts have to proceed through the tort of breach of confidence, into which the jurisprudence of articles 8 and 10 has to be “shoehorned”: Douglas v Hello! (No3)[2006] QB 125[53].
iii)    That feeling of discomfort arises from the action for breach of confidence being employed where there was no pre-existing relationship of confidence between the parties, but the “confidence” arose from the defendant having acquired by unlawful or surreptitious means information that he should have known he was not free to use: as was the case in Douglas, and also in Campbell v MGN [2004] 2 AC 457.    Two further points should however be noted:
iv)    At least the verbal difficulty referred to in (iii) above has been avoided by the rechristening of the tort as misuse of private information: per Lord Nicholls of Birkenhead in Campbell [2004] 2 AC 457[14]
v)    Of great importance in the present case, as will be explained further below, the complaint here is of what might be called old-fashioned breach of confidence by way of conduct inconsistent with a pre-existing relationship, rather than simply of the purloining of private information.
Something more now needs to be said about the way in which the rules laid down by articles 8 and 10 enter English domestic law.

(Emphasis added)

Australia has no statutory equivalent of the UK Human Rights Act 1998.   In the circumstances some form of statutory tort of privacy would provide significantly more structure and certainty in both prosecuting claims and defending them.

Jonathan Holmes on ABC-TV’s Media Watch on July 30 referred to the commercial television code of practice, the Fairfax code of conduct and the Media Alliance’s code of ethics, all of which deal with respecting private grief and personal privacy.

The problem with a code of practice is that it is voluntary and provides no real enforcement to a complainant.  What if the complainant wants to stop a repeated showing? No injunctive relief exists under a code of practice.

Tragic as this case is, the government should be wary of a knee jerk reaction to it

Hold on.  Where is the evidence that this consideration is due to the Molly Lord situation?  This is an issue that has been part of policy discussion for a considerable period. There are New South Wales and Victorian Law Reform Commissions which predate the ALRC report and both recommend a statutory tort of privacy.  In ABC v Lenah Game Meats in 2001 the High Court opened the door to the development of privacy law.

by simply endorsing the ALRC’s 2008 recommendation to introduce the tort.

Ass Prof Van Onselen seems not to have read the Discussion Paper released in September last year which outlines various options.

There are several reasons for this.

The first is that the ALRC report appears  to have been influenced by the 2004 Victorian Supreme Court decision of judge Eugene Gillard in Giller v Procopets, where the defendant distributed videotapes of himself having sex with his former partner, including to the plaintiff’s father and her employer.

This is assertion and extremely poor analysis.  Chapter 74 of the ARLC report runs to 198 paragraphs with examples and recommendations. When setting out the ALRC’s view Giller is mentioned exactly twice the first time as a footnote to a question:

Question 1–2 1. Following the break-up of their relationship, Mr A sends copies of a DVD of himself and his former girlfriend (B) engaged in sexual activity to Ms B’s parents, friends, neighbours and employer

and the second time by name:

74.140 While some of the examples above also may give rise to criminal sanctions, a federal statutory cause of action would give complainants access to a broader range of civil remedies to redress the invasion of their privacy. In the case of Giller v Procopets, the defendant showed another person a video of himself and the plaintiff having sex, left a copy of the video with the plaintiff’s father and threatened to show the video to others, including the plaintiff’s employer—and it was found that, under the existing state of the law, the plaintiff was left with no remedy in either criminal or civil law.

The ALRC refers to a significant number of sources;  legislation, cases, submissions and articles.  The relevant chapter, 74, has 244 footnotes.  On no sensible view can Ass Prof Van Onselen reach her conclusion on the facts available.

Causes of action for breach of confidence and/breach of privacy were rejected at first ­ instance, leaving the plaintiff in the invidious position where she had no remedy in either criminal or civil law.

This case was leaped upon by the ALRC as an example of  what would be covered by a statutory tort for invasion of privacy.

The ALRC leapt on nothing.  It set out a series of examples which the ALRC should amount to a serious invasion of privacy.  Of which one, Question 1-2 was the Giller v Procopets fact situation.  The questions are:

74.139 To illustrate this point more clearly, the ALRC provides below some examples of the circumstances that the ALRC considers should amount to a serious invasion of privacy for the purposes of the recommended cause of action.

Question 1–1 Examples of matters intended to fall within the ALRC’s recommended statutory cause of action for serious invasion of privacy

Question 1–2 1. Following the break-up of their relationship, Mr A sends copies of a DVD of himself and his former girlfriend (B) engaged in sexual activity to Ms B’s parents, friends, neighbours and employer.

Question 1–3 2. C sets up a tiny hidden camera in the women’s toilet at his workplace, capturing images of his colleagues that he downloads to his own computer and transmits to a website hosted overseas, which features similar images.

Question 1–4 3.D works in a hospital and accesses the medical records of a famous sportsman, who is being treated for drug addiction. D makes a copy of the file and sells it to a newspaper, which publishes the information in a front page story.[

Question 1–5 4.E runs a small business and uses F&Co Financial Advisers to handle her tax affairs and financial advice. Staff at F&Co decide to do a bit of ‘spring cleaning’, and a number of files are put out in a recycling bin on the footpath—including E’s file, which contains her personal and contact details, tax file and ABN numbers, and credit card details. A passerby grabs the file and, unbeknown to E, begins to engage in identity theft: removing money from E’s bank account, using her credit cards and applying for additional credit cards in E’s name.[

74.140 While some of the examples above also may give rise to criminal sanctions, a federal statutory cause of action would give complainants access to a broader range of civil remedies to redress the invasion of their privacy. In the case of Giller v Procopets, the defendant showed another person a video of himself and the plaintiff having sex, left a copy of the video with the plaintiff’s father and threatened to show the video to others, including the plaintiff’s employer—and it was found that, under the existing state of the law, the plaintiff was left with no remedy in either criminal or civil law.

Taken in context the Giller example is but one of a number.  Each of the other examples were loosely based on factual situations.

However, seven months after the ALRC’s report, the Victorian Court of Appeal held in favour of breach of confidence and awarded damages.

True as far as it goes.

As none of the other examples given by the ALRC was· devoid of an existing right of redress in Australia (hidden cameras in toilets;

Criminal sanctions lie but not necessarily a civil claim.  Whether a breach of confidence action lies is a matter of speculation.  There is hope but it is far from clear.

releasing health or tax records, etc

This is primarily a Privacy Act breach though pursuant to section 90 it may be a breach of confidence action.

), the court’s subsequent decision closed the door on the argument that a loophole needed to be addressed. 

It is nonsensical and intellectually dishonest to frame the Giller Court of Appeal decision as closing a loophole.  That presumes there was one to start with.  Chapter 74 of the ALRC report which deals with a statutory right of privacy was wide ranging and looked to the benefit generally of such a tortious right.  It used the judgment in Giller at first instances to highlight a problem.  That was not the basis of its overall analysis, and Ass Prof Van Onselen should know it.  The tenor of the chapter, found here, was that there was an overarching need irrespective of the examples given.

There are other reasons as to why introducing a statutory tort of invasion of privacy is flawed.

Of course there are….

The second is there is no common law history of the tort in Australia, unlike the Defamation Act that had hundreds of years of common law development before being enshrined in national uniform legislation.

So what?  This is a confected argument with little legal or factual support.  Competition law and anti dumping laws are creatures of statute without hundred of years of common law development and nobody suggests they are flawed systems of regulation.  It is true that Australia, unlike the USA prefers to evolve from established heads of action.  That is not a prerequisite to reform.

To the contrary, the scant judicial commentary to date suggests little appetite to develop the tort in Australia even on a piecemeal basis.

Since the High Court refused to rule out future development of the tort 11years ago in the 2001 case Lenah Game Meat, there have been only two decisions upholding the tort-in the Queensland District Court (2003) and County Court of Victoria (2007), respectively.

This suggests no pressing need for it to be a sudden action item on the government’s agenda.

This is nonsense.  The ALRC dealt with this falacious argument in its report at paragraph 74.141 when it said:

74.141 A number of stakeholders in this Inquiry have claimed that there have not been a sufficient number of complaints to warrant enactment of a cause of action for a serious invasion of privacy. The ALRC suggests that there are two arguments against the logic of that claim. First, the fact that no cause of action currently exists (and the lack of a definitive judgment under the common law) means that the numbers of those who have experienced a serious invasion of privacy cannot be known. Secondly, effective law reform must respond not only to current problems and gaps in the law, but also anticipate where there are likely to be significant problems in the future that will require some kind of regulation. In this case, it is clear that developments in information technology and surveillance technology have led to widespread concerns about an ‘increasingly invasive social environment’.

The Queensland decision, of Grosse v Purvis (2003) Aust Torts Reports 81–706 and the County Court decision in Doe v ABC are both intermediate court decisions which carry no precedential weight.  To expect a practitioner to advise his or her client to proceed on such weak foundations would have been very risky. The suggestion is also fallacious because it does not take into account a desire that may exist but a reluctance to “test the waters” where the development of the law is anything but likely let alone certain.

Rather, like Britain, Australian courts have relied on developing the causes of action for breach of confidence, nuisance and trespass.

The Australian courts have not undertaken any meaningful development of nuisance or trespass in the privacy context. As for breach of confidence Giller relies on the early UK decisions of Campbell and Douglas.  That development, a tentative first step, was not in preference to legislative reform.

Any statutory expression of the tort runs the danger of being clumsy and ill-considered.

That can be said of most legislation.  Hence the need to consider drafting carefully with input from the various stakeholders.  It is hardly a novel process.

The internal debate that rages within the ALRC’s report-as to the composition of the elements of the cause of action and the test to be applied-evidences that drafting the legislation will not be easy.

What purple prose for an academic.  What the good (Associate) Professor describes as the raging internal debate is a consideration of all of the issues and the submissions made.  It is hardly a novel approach taken by the ALRC.  In fact it would be critisised if it did not raise these issues, discuss, discount or adopt various proposals.  The author should get out more and delve into some of their Reports to understand how it does its business.

A fourth reason against a statutory tort for privacy is the need to balance an individual’s privacy rights against the public’s right to the free flow of information on matters of public concern.

The balance is critical. As, funnily enough the ALRC, agreed when discussing the issue under the heading “A balancing test” stating, inter alia:

A balancing test
74.145    The ALRC agrees with the APC that the public interest in allowing freedom of expression is an essential criterion to be used to determine ‘the balance between privacy rights for individuals and the public’s right to the free flow of information on matters of public concern’.198
74.146 As discussed in Chapter 5, the right to privacy is one of a number of fundamental human rights set out in the ICCPR and other international instruments. The right is not absolute, and privacy competes with other rights and interests, such as freedom of expression. In McKennitt v Ash, Eady J noted that the balancing of these rights does not occur in a vacuum and public attitudes towards the correct balancing of rights may change along with societal expectations:
It is clear that [in the United Kingdom] there is a significant shift taking place as between, on the one hand, freedom of expression for the media and the corresponding interest of the public to receive information, and, on the other hand, the legitimate expectation of citizens to have their private lives protected … Even where there is a genuine public interest, alongside a commercial interest in the media in publishing articles or photographs, sometimes such interests would have to yield to the individual citizen’s right to the effective protection of private life.199
74.147    Rather than attempt to protect other rights through a defence, the ALRC agrees it would be better in principle and in practice to add an additional element to the cause of action for a serious invasion of privacy. This would ensure that privacy interests are not privileged over other rights and interests.200

74.155    Chapter 5 notes that, although the right to privacy is an individual right, there is a strong public interest in protecting that right. There is also a public interest in allowing freedom of expression, and the free flow of information, in an open and democratic society.209 A statutory cause of action would provide an opportunity to ensure that the appropriate balance between the public interests in protection of privacy and freedom of expression (and other public interests) is struck. Recognition of these other public interests simply reflects the fact that the right to privacy is not absolute. In appropriate circumstances, it will have to give way to other competing interests.
74.156 As noted above, and in Chapter 5, public interests can be, and frequently are, balanced against each other by the courts. In the traditional breach of confidence cases under the common law, the court can determine that the public interest in the protection of confidences is outweighed by a greater public interest in disclosure.210 In

74.157 The ALRC, therefore, recommends that, in determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action for serious invasion of privacy, the court must take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest—including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression.

But why can this not be a defence or a factor any court must take into account?  It is.  The ALRC recommends :

Recommendation 74–1    Federal legislation should provide for a statutory cause of action for a serious invasion of privacy. The Act should contain a non- exhaustive list of the types of invasion that fall within the cause of action. For example, a serious invasion of privacy may occur where:
(a)    there has been an interference with an individual’s home or family life;
(b)    an individual has been subjected to unauthorised surveillance;
(c)    an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed; or
(d)    sensitive facts relating to an individual’s private life have been disclosed.
Recommendation 74–2    Federal legislation should provide that, for the purpose of establishing liability under the statutory cause of action for invasion of privacy, a claimant must show that in the circumstances:
(a)    there is a reasonable expectation of privacy; and
(b)    the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities.
In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court must take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).
Recommendation 74–3    Federal legislation should provide that an action for a serious invasion of privacy:
(a)    may only be brought by natural persons;

(b)    is actionable without proof of damage; and

(c)    is restricted to intentional or reckless acts on the part of the respondent.
Recommendation 74–4    The range of defences to the statutory cause of action for a serious invasion of privacy provided for in federal legislation should be listed exhaustively. The defences should include that the:
(a)    act or conduct was incidental to the exercise of a lawful right of defence of person or property;
(b)    act or conduct was required or authorised by or under law; or
(c)    publication of the information was, under the law of defamation, privileged.
Recommendation 74–5    To address a serious invasion of privacy, the court should be empowered to choose the remedy that is most appropriate in the circumstances, free from the jurisdictional constraints that may apply to that remedy in the general law. For example, the court should be empowered to grant any one or more of the following:
(a)    damages, including aggravated damages, but not exemplary damages;

(b)    an account of profits;

(c)    an injunction;

(d)    an order requiring the respondent to apologise to the claimant;
(e)    a correction order;

(f)    an order for the delivery up and destruction of material; and

(g)    a declaration.

(Emphasis added)

As argued by SBS and the Australian Press Council, public scrutiny  of possible malfeasance or nonfeasance could be deflected by the  tort.

That is an argument but not much more than that.  France has strong privacy protections but there has been no shortage of stories about allegations of inappropriate behaviour by previous Presidents Jaques Chirac and Nicholas Sarkozy.  A vibrant press still exists in the UK with its  privacy protections.  This argument is classic Chicken Little with the “chilling effect” trope being the secondary theme.  The facts do not bear out the end of the world shrieks from the stands.

Journalists’ tools of the trade to discover stories will be curtailed, reducing the amount of stories revealed by the media to the public.

And the evidence is where?  This is just assertion. Some journalists’ egregious practices may be affected.  But where this argument falls down badly is that a statutory tort of privacy is not a dagger aimed at journalists, journalism or the media generally.  If enacted the tort should apply to all citizens, organisations and agencies.  As such individuals can take action against others who are interfering with their privacy. The case law in the UK indicates that individuals have had recourse against those who are not journalists.  It is more than a little arrogant for Ass Prof Van Onsolen to assume that any legislative reform would be a matter only the concern of journalists.

The right to knock on the door of someone’s home unannounced to gather information on a story, conducting surveillance or interviews while researching a story or vox pops could all go the way of the yeti.

On the basis of the recommended elements of a statutory right to privacy, with the associated defences, I doubt it.  There is a large dollop of the “wouldas” and “couldas” in this jeremiad.  The right to knock on a door is an implied licence to enter premises.  There is no suggestion that will be removed.  Gathering information by surveillance depends upon the facts but it is far from precluded.  As for the claim that interviews or vox pops being proscribed is just assertion.

Finally, enshrining privacy interests in a statute while forsaking an equivalent statutory right of freedom of press and/or speech, will mean privacy rights are accorded privileged status.

But is this what is being proposed?  Not if one, actually, reads the Chapter 74 of the ALRC Report and especially its recommendations.  There is no suggestion that the right will be given weight above other factors.  And certainly not a privileged status.  This is more polemic than argument.

Introducing a statutory tort of privacy will skew the ledger.  

Again nonsense.  Where a tort of privacy exists in common law jurisdiction, such as New Zealand, there is no suggestion that the ledger has been skewed.  That the tort is a creature of statute makes no discernible difference.  More to the point, where is the evidence that it will engage in ledger skewing??

While the US has a statutory model of the tort, it sits-alongside the US constitution’s First Amendment protections of  freedom of speech and freedom of the press. Australia has no express constitutional equivalent.

True.  And so what. In the UK there are competing interests in the Human Rights Act, Article 8, a right to privacy, and Article 10, a right of freedom of expression.  There is no constitutional protections there.  Weighing the right to free expression and public interest in dissemination of information in a statute provides sufficient protections. The wording of the provision is important, not whether it is in a statute or the Constitution.

In 2007, the Law Council of Australia submitted that the existing regulatory environment combined with the various media and industry codes of practice provided “appropriate and adequate recourse to individuals who consider that a media organisation has interfered with their privacy”.

And it is entitled to its view. It was one of many submissions. I think the Law Council is incorrect in its assessment.  As, clearly given its recommendations, does the ALRC.  That the Law Council differs with me or the ALRC is a fact but no more.  The Law Council is not a court or even a gathering of wise persons whose views constitute the last word on anything.  Its input is always to be welcomed but must be considered on its merits.

Our federation has survived for more than 100 years without the need for developing the tort of privacy. The status quo should be maintained

 This statist argument is pure polemic.

As with most areas of law reform there are differing philosophical positions and differing legal interpretations.  What is important is the debate focus on those issues, not polemics and assertions.

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