Meat on the bone for cause of action for unwarranted serious breach of privacy

Commissioner Professor Barbara McDonald

The Australian Law Reform Commission Report Serious Invasions of Privacy in the Digital Age, tabled in Parliament today, is in response to the reference by then Labor Attorney General Dreyfus who in June last year asked that the ALRC look at innovative ways to address the problem and provide a detailed legal design of a statutory civil cause of action.  

Recommendations(pdf) 4-12 set out the design elements of a tort for a serious invasion of privacy,"if a statutory cause of action is to be enacted":

• the invasion of privacy must be either by intrusion into seclusion or by misuse of private information (Chapter 5);

• it must be proved that a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances (Chapter 6);

• the invasion must have been committed intentionally or recklessly—mere negligence is not sufficient (Chapter 7);

• the invasion must be serious (Chapter 8,) the invasion need not cause actual damage, and damages for emotional distress may be awarded (Chapter 8); and

• the court must be satisfied that the public interest in privacy outweighs any countervailing public interests (Chapter 9).

The last point, the commission notes, is "the crucial ‘balancing exercise’, in which courts weigh privacy against other important public interests, such as freedom of speech, freedom of the media, public health and safety, and national security. The ALRC recommends that such competing interests be considered when determining whether the plaintiff has a cause of action. It should be an element of the tort, rather than a defence. A plaintiff should not be able to claim that a wrong has been committed—that their privacy has been seriously invaded—where there are strong public interest grounds justifying the invasion of privacy."

The commission wasn't asked to go further than report on the elements of a cause of action but you don't need special powers in reading this extract to work out what they would say if they were: that our our legal system should provide recourse, best by statute, in the event of invasions of privacy either by intrusion upon seclusion or by misuse of private information that are serious, committed intentionally or recklessly, and that cannot be justified in the public interest. 

With various wrinkles the Victorian and NSW law reform commissions, the ALRC in 2008, most of the submissions to the previous government's issues paper on the subject, and the recent parliamentary committee report on drones reached the same conclusion.

But given the comment said to have been made by Attorney General Brandis some time back (hard to track down) that "the Government has made it clear on numerous occasions that it does not support a tort of privacy" don't expect the Abbott government to rush to act, soon or maybe anytime. 
(Update: Paul Farrell in The Guardian clears this up:
"A spokesman for the attorney general, George Brandis, said: “The government has made it clear on numerous occasions that it does not support a tort of privacy.”)

That probably won't stop The Australian wheeling out the shock and awe about the impact such a tort could have on free speech, leaving unexplored and even unreported (as was often the case after 2008) that the recommended elements recognise that privacy must  be balanced with other rights, such as the right to freedom of expression and the freedom of the media to investigate and report on matters of public importance.

The report includes a suite of other recommended measures:

• Commonwealth legislation to replace existing state and territory laws regulating the use of surveillance devices, to include a ‘responsible journalism’ defence to protect journalists and media groups who make appropriate use of a surveillance device for journalism in the public interest; 

• extension of the existing powers of the Privacy Commissioner to investigate breaches of the Privacy Act 1988 (Cth) to allow investigations of complaints about serious invasions of privacy more generally, that is that do not involve breach of that law;

• and if a tort for a serious invasion of privacy is not enacted by the Commonwealth, that the law for an action for breach of confidence be strengthened enabling courts to award compensation for emotional distress, and that state and territory governments  enact uniform legislation providing for a statutory tort of harassment.