South Australian Law Reform Institute calls for statutory right of privacy

March 23, 2016 |

The South Australian Law Reform Institute has produced it Final Report calling for, amongst its 34 recommendations, a statutory right of privacy.  The 195 page report is found here.

This is yet another careful and considered report looking at all the issues in an independent manner which comes to exactly the same basic conclusion most recently reached by the Australian Law Reform Commission in 2008 and 2014 and the Victorian Law Reform Commission in 2009 and its New South Wales counterpart in 2010. That there is a real need for a statutory right of privacy.  The legal impediments are non existent.  The political lethargy is almost overwhelming to date.

The question is, and always has been, whether the report is given proper legislative effect or is put on the groaning book shelf with the other reports generated over the last 40 + years. Interestingly the Institute recommended that South Australia strike out and introduce the legislation.  That makes sense.  There is no constitutional or legislative restriction on a State enacting a statutory right of privacy.

Absent legislative reform there will be little change in the law.   The appellate jurisdictions in Australia will likely not recognise a tort of privacy.  In that respect they are more hidebound than the appellate courts in the United Kingdom and Canada.  That is a chronic weakness with the Australian courts.  It is unlikely to change any time soon.

The media statement provides:

More than 40 years after they were first recommended for South Australia, the need for new laws to protect personal privacy has again been championed, this time in the digital age.

The independent South Australian Law Reform Institute, based at the University of Adelaide, on 15 March 2016 handed over its Final Report to the State Attorney-General on invasion of privacy.

The report recommends a major reform: the establishment of a South Australian civil law for serious invasion of personal privacy, covering multiple issues such as bodily, territorial, information and communications privacy.

Among the report’s 34 recommendations are the issue of proof of personal damages, a test of what is considered to be in the “public interest”, the opportunity for courts to impose an injunction on material that may be a serious breach of privacy, and appropriate remedies and compensation for cases that are upheld.

“There has never been a ‘right to privacy’ for any Australians, and while we acknowledge that this proposal is likely to be contentious, such reform is both necessary and highly overdue to protect the rights of South Australians,” says the Director of the SA Law Reform Institute, Professor John Williams.

“The main reason behind these laws is the use of new media in the hands of private individuals. Modern technology makes it increasingly easy to invade personal privacy, to publish material or information about people, and to reach a wider audience than ever before, with potentially devastating and irreversible consequences.”

Professor Williams says a test for matters that are in the “public interest” would be a crucial part of any privacy case brought before the courts. “We recognise that there is a particularly acute tension between, on the one hand, freedom of speech and, on the other, protecting privacy interests by the granting of a court injunction,” he says.

“For example, footage secretly obtained for a television program that exposes animal cruelty will arguably be in the public interest, because animal welfare is a key issue for our community. But intimate footage that is recorded by private individuals and then shared without consent – such as on revenge websites – or using a remote-controlled drone with a camera to film an individual or their family in their own backyard, these issues would constitute a serious breach of personal privacy. Our report recommends that the courts consider all relevant competing public interests when deliberating on these cases.”

The Institute’s report builds on years of law reform research undertaken in other states of Australia, and has taken into consideration submissions from a number of individuals and organisations, including media.

Despite multiple reform recommendations over many decades, no state or territory in Australia has so far succeeded in establishing a civil law for invasion of personal privacy.

South Australian privacy laws were first recommended by the former SA Law Reform Committee in 1973. The last Privacy Bill before the State Parliament was in 1992. At the time, the then Attorney-General, the Hon. Chris Sumner, said that “at this stage the Parliament is just not mature enough to grasp the issue”.

Professor Williams says: “It is unlikely that such a law will emerge in the near future from either the Commonwealth or through the courts. But in the 21st century, the impetus for reform is even stronger than it was in the 1970s and 1990s. Because of technological advances, and the ease with which our personal information in digital form can be found, accessed and disseminated, we are now more vulnerable than ever before to serious invasions of privacy.”

The Report is now with the State Government for its consideration.

The recommendations are:

Recommendation 1:
The South Australian Parliament should enact a limited cause of action for serious invasions of personal privacy.
Recommendation 2:
The statute should refer to the cause of action as a ‘tort’.Recommendation 3:
The cause of action should extend to the protection of bodily privacy, territorial privacy, information privacy and communications privacy.
Recommendation 4:
The cause of action should require that a plaintiff have a reasonable expectation of privacy in the circumstances. The statute should provide a non-exhaustive list of factors that a court may take into account in making that assessment. In developing this list, guidance should be taken from the list of factors recommended in the ALRC 2014 Report.
Recommendation 5:
The statute should provide that the cause of action extend to intrusions upon a person’s seclusion and misuse of a person’s private information.
Recommendation 6:
The statute should include the following non-exhaustive guiding examples:
  • For intrusion upon seclusion: by physically intruding into the plaintiff’s private space or by watching, listening to or recording the plaintiff’s private activities or private affairs.
  • For misuse of private information: by collecting or disclosing private information about the plaintiff.
Recommendation 7:
The statutory cause of action should provide that ‘private information’ includes untrue information, but only if the information would be private if it were true.
Recommendation 8:
The fact of invasion is sufficient; that is, a plaintiff would have
a cause of action if their privacy was invaded, even if the defendant did not further disclose or disseminate information or material obtained in the course of the invading act.
Recommendation 9:
The cause of action should provide that the invasion be serious. Whether the invasion is sufficiently serious to give rise to an action will be left for the court to decide, having regard to:
  • (an objective test) the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause to a person of ordinary sensibilities in the position of the plaintiff;
  • (a subjective test) whether the defendant was motivated by malice or knew the invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff; and
  • any other factors the court considers relevant.
Recommendation 10:
The Institute considers that a public interest test should be an element of the proposed cause of action. In determining whether a cause of action has been established, a court should be required to take into account whether the public interest in maintaining a plaintiff’s privacy outweighs other issues of public interest. The
statute should set out a non-exhaustive list of examples that a court may consider, along with any other
relevant public interest matter. The list should be made having regard to the ALRC 2014 Report and the specific activities deemed to be of ‘legitimate public purpose’ in the 2012 amendments introducing the humiliating
and degrading filming offences to the Summary Offences Act 1953 (SA), taking into account any overlap and interplay with the other elements and defences listed in this Report.
Recommendation 11:
The statute should expressly provide that the cause of action is actionable without proof of damage.
Recommendation 12:
The kinds of harm or loss which are compensable should be cast as broadly as possible and should at least include emotional distress.
Recommendation 13:
The cause of action for invasion of privacy should apply to conduct that is either intentional or reckless but not accidental or negligent. There must exist either an intention to invade someone’s privacy or recklessness as to that fact. Recklessness in this context means where the defendant is aware of the risk of an invasion of privacy and is indifferent to  whether or not an invasion of the plaintiff’s privacy would occur as a result of the conduct.
Recommendation 14:
The statute should provide that the cause of action only be available to natural persons.
Recommendation 15:
The statute should provide that the cause of action be confined to living persons.
Recommendation 16:
The consent (implied or inferred and freely given) of the plaintiff ( or by an individual who has legal capacity to consent on their behalf) should be a complete defence tothe action. The statute should make it clear that for the purposes of the defence, the consent must be to the particular disclosure or conduct constituting the invasion, including in the case of publication or dissemination, the extent of that publication or dissemination.
 
Recommendation 17:
There should be a defence for conduct incidental to the exercise of a lawful right of defence of person or property, where:
  • the defendant believes, on reasonable grounds, that the conduct was necessary; and
  • the defendant’s conduct is proportionate to the perceived threat.
Recommendation 18:
There should be a defence of necessity.
Recommendation 19:
There should be a defence for conduct which was required or authorised by law. For the purposes of this defence ‘law’ should be defined broadly and should mean the law as applicable in South Australia. The definition should include:
  • the general law;
  • Commonwealth Acts, regulations, legislative instruments and other instrumentsmade under a Commonwealth Act;
  • South Australian ‘Acts’ and ‘statutory instruments’ (as defined in the Acts Interpretation Act 1915(SA));
  • orders made by courts and tribunals;
  • prerogative powers; and
  • documents that have the force of law pursuant to an Act. The statute should make it clear that the absence of a law prohibiting particular conduct should not, of itself, mean that that conduct is authorised by law.
Recommendation 20:
There should be defences which are in similar terms to, and co- extensive with, the following defences to an action in defamation under the Defamation Act 2005(SA):
the defence of fair report of proceedings of public concern;
  • the defence of innocent dissemination;
  • the defence for publication of public documents; and
  • the defence of absolute privilege.

 

Recommendation 21:

It should not be a defence to the cause of action to prove that the
information was in the public domain prior to the invasion.
Recommendation 22:
The cause of action should not include any complete exemptions. However, consideration should be given to exempting (or in some other way excusing) young persons from liability.
Recommendation 23:
The remedies available for an invasion of privacy should include:
  • account of profits;
  • injunctions;
  • orders of correction or apology;
  • delivery up (including orders to take down);
  • declarations;
  • damages; and
  • any other relief that the court considers appropriate in the circumstances.
Recommendation 24:
The statute should provide that a court may award as many different remedies for an invasion of privacy as it sees fit.
Recommendation 25:
The statute should expressly require courts to consider all relevant competing public interests (including, but not limited to, freedom of expression) prior to granting an injunction as a remedy for an invasion of privacy.
Recommendation 26:
The statute should require courts to draw on established principles of tort law when determining the appropriate award of damages (and should consider awards in analogous cases for other torts).
Recommendation 27:
The statute should contain the following non- exhaustive list of considerations relevant to the determination of the award of compensatory
damages:
(a) whether the defendant has made an appropriate apology to the plaintiff;
(b) whether the defendant has published a correction;
(c) whether the plaintiff has already recovered compensation, or has agreed to receive compensation in relation to the conduct of the defendant;

(d) whether either party has taken reasonable steps to settle the dispute without litigation; and

(e) whether the defendant’s unreasonable conduct following the invasion of privacy, including during the proceedings, has subjected the plaintiff to particular or additional embarrassment, harm, distress or humiliation.
Recommendation 28:
The statute should prevent courts from awarding aggravated damages as a separate head of damage.
Recommendation 29:
The statute should expressly allow courts to award exemplary damages in
exceptional cases.
Recommendation 30:
The statute should expressly allow courts to award nominal damages.
Recommendation 31:
The statute should impose a maximum amount of damages that may be awarded for the combined sum of the award for non – economic loss and the award for exemplary damages (if any). The maximum amount should be consistent with the maximum imposed by s 33(1) of the Defamation Act 2005 (SA), which is currently $250,000.
Recommendation 32:
The statute should allow a plaintiff to bring a claim within the earlier of one year from the date the plaintiff became aware of the invasion of privacy or six years from the date of the invasion of privacy. The one year limitation should be open, in exceptional circumstances,to extension by the court, but not beyond six years
from the date the invasion occurred.
Recommendation 33:
A plaintiff should be able to bring an action for invasion of privacy in the Supreme Court of South Australia, the District Courtof South Australia or the Magistrates Court of South Australia.
Recommendation 34:
The costs should be determined in accordance with the relevant rules of
the court in which the matter is heard.

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