Low key launch for NSW LRC privacy paper

Without any fanfare (not even a media release), the NSW Law Reform Commission has released its Consultation Paper on "a statutory cause of action for privacy". The Paper provides a broad canvas of the issues, case law developments, the situation in other similar countries and puts forward a tentative view that we should join the ranks of those who should act to fill this current significant gap in our legal framework.

The Commission makes two proposals: that if a statute is to create a cause of action, the approach should be to identify in the legislation the objects and purposes it seeks to achieve, and incorporate a non-exhaustive list of the types of invasion that fall within it. It also suggests that the range of remedies include but not be limited to, damages (other than exemplary damages).

The Paper lists 20 questions and seeks responses during a consultation period to run until September.

While the Commission acknowledges the difficulty in defining 'privacy', it lists a range of considerations relevant to capturing the essential elements of any statutory cause of action, including whether there was a 'reasonable expectation of privacy in relation to the conduct or information, and whether in all the circumstances the invasion of privacy could be considered 'offensive to a reasonable person'. It also flags a range of possible justifications for action or conduct, including public interest considerations that could justify an invasion (to some degree) of privacy.

The NSW Paper is relevant to the Australian Law Reform Commission review of privacy laws, and should lead to a lively and vigorous discussion of whether we need a defined cause of action, and how it should be framed.