Statutory Cause of Action for Privacy in Australia

JESSIE PORTEUS
Submission to the Department of

Prime Minister and Cabinet
2 November 2011
The time is ripe for a statutory cause of action
for invasions of privacy in Australia
The recent News of the World phone-hacking scandal has brought into sharp
focus a number of questions surrounding the scope and parameters of
privacy rights for individuals in Australia and around the world. With the
Gillard government announcing its intention to create a federal statutory
action for serious invasions of privacy, this area of law now necessitates
comprehensive analysis and review. This dissertation argues that the
fragmented state of Australian law does not currently provide sufficient or
direct protection of privacy. It surveys the gaps in privacy law previously
canvassed in the 2008 Australian Law Reform Commission Report ‘For Your
Information’ and the 2009 New South Wales Law Reform Commission Report
‘Invasion of Privacy’, and evaluates the proposed reforms in light of recent
developments. This dissertation examines the reluctance of the common law
and the inadequacy of equity to stitch up the unravelling fabric of the current
privacy framework, and draws upon both domestic Commission Reports and
best-practice approaches in overseas jurisdictions to propose a statutory
cause of action which aims to strike a balance between the right to privacy in
a technology and media-driven world, and the fundamental right to freedom of
speech.
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TABLE OF CONTENTS
TABLE OF CONTENTS......................................................................................................................2
INTRODUCTION..................................................................................................................................4
1. THE NEED FOR PRIVACY..........................................................................................................7

1.1. Definitional Difficulties............................................................................................................7
1.2. The Ripening of the Fruit......................................................................................................13
1.3. The [Anti] Social Network.....................................................................................................15
1.4. News of the World and the Phone-Hacking Scandal...........................................................21
1.5. The Need for Privacy.............................................................................................................23
2. THE CURRENT PRIVACY LAW FRAMEWORK: AUSTRALIAN AND OVERSEAS
APPROACHES..............................................................................................................................25
2.1. The Missing Cause of Action.................................................................................................25
2.2. Tort: A Negligent Approach?...............................................................................................27
2.2.1. The Case of New Zealand…………………………………………………………...………27
2.2.2. The Case of The United States………………………………………………………………
28
2.2.3. A Privacy Tort in Australia?……………………………………………………………….29
2.3. Equity: The New Fusion Fallacy?.........................................................................................30
2.3.1. The Case of the United
Kingdom…………………………………………………………...30
2.3.2. Extending breach of confidence in Australia?……………………………………………31
2.4. A Statutory Solution..............................................................................................................34
2.4.1. The Case of North America……………………………………………………………....…34
2.4.2. A Statutory Approach in Australia…………………………………………………………36
3. PREVIOUS ATTEMPTS AT REFORM…................................................................................37
3.1. The Australian Law Reform Commission Report..............................................................38
3.2. The New South Wales Law Reform Commission Report..................................................42
3.3. The Australian Government’s Response.............................................................................46
4. REFORM PROPOSALS: THE INVASION OF PRIVACY ACT 2011 (CTH)........................48
4.1. New Federal Statute...............................................................................................................49
4.2. Objects Clause........................................................................................................................49
4.3. Definition.................................................................................................................................52
4.4. Entitlement.............................................................................................................................54
4.5. General Cause of Action........................................................................................................55
4.5.1. Threshold……………………………………………………………………………………...55
4.5.2. Test……………………………………………………………………………………………..56
4.5.3. Mental Element……………………………………………………………………………….59
4.5.4. Factors to be Taken into Account………………………………………………………..…60
4.5.5. Consent………………………………………………………………………………………...61
4.5.6. Limitation
Period……………………………………………………………………………..63
4.6. Defences...................................................................................................................................64
4.7. Remedies.................................................................................................................................66
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4.8. Education Campaign............................................................................................................67

4.9. A Familiar Inertia.................................................................................................................70
4.10. Future Application of the New Framework......................................................................71
CONCLUSION....................................................................................................................................73
APPENDIX...........................................................................................................................................75
Table 1: Current Legal Protection of Privacy...................................................................................75

Table 2: Elements, Defences and Remedies in Overseas Privacy Statutes.....................................81
Table 3: Comparison of Recommendations for a Statutory Cause of Action in Australia...........86
BIBLIOGRAPHY................................................................................................................................93
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INTRODUCTION
I do not pretend that it is easy to safeguard privacy in the current age. But surrendering the
endeavour as just too difficult to achieve is not an option.1
Most Australians are under the mistaken belief that they have a right to privacy.2 At the same
time, Australians are increasingly willing to disclose private feelings, information and
photographs everyday on social networking websites and through other technological media
such as smart phones. Public knowledge about the realm of privacy protection is lessening,
yet, and somewhat paradoxically, Australians are lamenting the erosion of their privacy rights
as the ‘inevitable result of technological advance’,3 and are outraged by the recent scandal
surrounding widespread media phone-hacking.
The fabric of the privacy law framework is unravelling. The recent unveiling of surreptitious
behaviour by News of the World and other media organisations overseas has pulled the last
remaining thread, and has called into question the currently fragmented and ad-hoc approach
to protecting the various notions of personal privacy in Australia.
Darwin’s theory of evolution states that life’s forms evolve as Mother Nature’s forces respond
to new pressures exerted by changes in the environment. ‘The more dramatic the change, the
greater the pressure, the faster the evolution.’4 The law develops in much the same way, as an
1
The Honourable Michael Kirby AC CMG, ‘Privacy, MySpace, YouTube and Facebook: Can the Law Cope?’
(Speech delivered at the Victorian Privacy Commission Privacy Oration, Melbourne, 1 September 2009) 11.
2
New South Wales Law Reform Commission, Invasion of Privacy, Report No. 120 (2009) 7 [3.1].
3
Ibid.
4
Dr Robert Dean, ‘A right to privacy?’ (2004) 78 Australian Law Journal 114.
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organic and ever-changing life-form, responding to social, political and economic changes
around it.
A new wave of privacy regulation is now in an embryonic5 stage as a result of recent
developments. In 2011, there is an overwhelming need to change the currently defective
privacy framework, and to strike a flexible and common-sense balance6 between the privacy
interests of individuals and public concerns such as freedom of speech, national security and
freedom of information.
The purpose of this paper is to fill a gap in the academic literature by responding directly to
the recent phone-hacking scandal and other contemporary challenges to privacy by offering a
new legislative proposal. In formulating the proposal, this paper addresses the need for
general privacy protection in Australian law, given the current socio-economic climate,
advancements in technology, the domination of social networking in the everyday lives of
Australians, and the clandestine behaviour by major media organisations, brought to the
widespread attention of the public particularly over the last twelve months. This paper draws
upon the 2008 Australian Law Reform Commission Report For Your Information and the
2009 New South Wales Law Reform Commission Report Invasion of Privacy, and statutory
causes of action operating in Canada and other jurisdictions, which provide sound statutory
models upon which the proposed legislation is based.
This paper firstly considers why the issue of privacy should pervade current legal and
academic thinking. Chapter One evaluates the contemporary arguments as to why Australia
requires privacy protection and how modern threats to private life provide the impetus for
legal reform in 2011. The Chapter pays particular attention to the explosion of social
networking, the free flow of information, and the News of the World phone-hacking scandal.
5
Carolyn Doyle and Mirko Bagaric, Privacy Law in Australia (Federation Press, 2005) 178.
6
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No
108 (2008) vol 1, 105-110 [1.82-1.93].
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Secondly, the paper surveys the currently fragmented state of privacy law in Australia.
Chapter Two examines the fact that privacy is only incidentally protected under Australian
law. There is no general law protecting privacy. The chapter then evaluates the different
legal methods of privacy protection utilised in overseas jurisdictions such as New Zealand,
United Kingdom, Canada and the United States, and applies each approach to the Australian
legal landscape. By demonstrating the reluctance of the common law and the inadequacies of
equity to protect privacy, the chapter concludes that privacy is best protected through statute.
Thirdly, this paper reviews existing academic and legal literature on privacy law reform.
Chapter Three assesses and compares the previous models of reform put forward by the
Australian and New South Wales Law Reform Commissions in 2008 and 2009. The chapter
considers those recommendations in light of recent developments in order to plug the gap in
privacy laws and literature in 2011.
Finally, this paper will explain how to address the problems and gaps in privacy protection
canvassed in the previous chapters by proposing a new model for reform. Chapter Four
recommends new federal legislation that creates a statutory cause of action for invasions of
privacy. The proposed legislation draws upon the value of individual autonomy, the need for
national consistency and the delicate balancing process between individual privacy interests
and the public interest in freedom of expression. The chapter also recommends a
comprehensive education campaign aimed at improving social norms and expectations
relating to privacy.
This paper will illustrate that there is urgent need for Australia to build a new privacy
framework that adapts to contemporary concerns and values. The time is ripe for statutory
protection of privacy.
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1. THE NEED FOR PRIVACY
In our overexposed world, is anything private anymore? Currently, the law recognises as
private only information that is completely secret. Information exposed to others is public.
Privacy, however, is far more complicated, as it involves a cluster of nuanced expectations of
accessibility, confidentiality and control. If we are to protect privacy today, we need to
rethink our understandings of privacy.7
1.1. Definitional Difficulties
In order to understand why protection of privacy is needed in Australia and how it should be
protected, the intricacies and complexities within the meaning of privacy should first be
acknowledged.
‘Privacy seems to encompass everything, and therefore it appears to be nothing in itself.’8
While privacy law authors may disagree on the scope and parameters of privacy protection
and how it should be reformed, the one thing they can agree on is that there is no satisfactory
definition of privacy. Rhetoric such as: ‘[n]obody knows what that thing means. But you
have to define it; you have to define it. And the Court has not given it definition’,9 has played
a somewhat critical part in the Australian Government’s failure to develop a coherent and
uniform system of privacy laws.10 This essential first step has also been avoided by the Law
7
Daniel J Solove, The Future of Reputation: Gossip, Rumour, and Privacy on the Internet (Yale University
Press, 2007) 161.
8
Daniel J Solove, Understanding Privacy, (Harvard University Press, 2008) 7.
9
Nomination of Robert H. Bork to be an Associate Justice of the United States Supreme Court, Report of the
Committee on the Judiciary, US Senate, Washington: 13 Oct 1987, 32; cited in Raymond Wacks, Personal
Information: Privacy and the Law (Clarendon Press, 1993) 1.
10
Doyle and Bagaric, above n 5, 6.
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Reform Commissions in the past, defining privacy as something that should ‘speak for
itself’.11
Some authors have attempted to define privacy’s parameters, despite the commonly-held
belief that privacy is ‘beyond the scope of the law’. 12 In 1979, the Australian Law Reform
Commission described privacy as ‘material which so closely pertains to a person’s innermost
thoughts, actions and relationships that he [or she] may legitimately claim the prerogative of
deciding whether, with whom and under what circumstances he [or she] will share it’.13
Westin defined privacy as ‘the claim of individuals, groups, or institutions to determine for
themselves when, how and to what extent information about them is communicated to
others.’14 Cooley simply described it as the ‘right to be let alone’.15
The judicial definition proposed by Gleeson CJ in Lenah also appears to be widely accepted,
even finding endorsement by the Irish Working Group on Privacy:16
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. 17
11
New South Wales Law Reform Commission, Report No. 120, above n 2, 21 [4.16].
12
R F Hixson, Privacy in a Public Society: Human Rights in Conflict (Oxford University Press, 1987) 98.
13
Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, Report No 11 (1979) 109
[206].
14
Alan Westin, Privacy and Freedom (Atheneum, 1970) 7.
15
Thomas M. Cooley, Cooley on Torts 29 (2nd ed, 1888).
16
Irish Working Group on Privacy, Report of Working Group on Privacy (2006) 12.
17
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 226 [42] (Gleeson
CJ).
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The legal definition of privacy however remains elusive,18 particularly as social norms
change. The concept is ambiguous on at least three levels – status, features and coherence.19
Firstly, the status and value of privacy is uncertain. Privacy is not a recognised right in
Australia. Indeed, Australia has international obligations to protect people’s privacy. Article
12 of the Universal Declaration of Human Rights 1948 and Article 17 of the International
Covenant on Civil and Political Rights [‘ICCPR’] both provide that ‘no one shall be
subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and reputation.’20
Despite ratifying the ICCPR on 13 August 1980, Australia’s domestic approach follows a
traditional trend of reticence towards rights.21 In 1988, the Office of the United Nations High
Commissioner for Human Rights announced that Article 17 was to apply to states, natural
persons and legal persons, and that ‘all member states are required to adopt legislative and
other measures to give effect to the prohibition against such interferences and attacks as well
as to the protection of this right’.22 The Australian government passed the Privacy Act 1988
(Cth) as a way to implement the ICCPR obligations. However, the Act only relates to
information privacy and therefore only partially implements Article 17. Furthermore,
Australia does not have a Bill of Rights (although ACT23 and Victoria24 have rights
legislation), which is another possible method of implementing Article 17 and other rights.
As a result, privacy is not a wholly-recognised right in Australia.
18
Raymond Wacks, Personal Information: Privacy and the Law (Clarendon Press, 1993) 13.
19
Ibid, 13-14.
20
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, (entered into
force 13 March 1976) [1980] ATS 23, Article 17; and Universal Declaration on Human Rights, GA Res 217A
[III], UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) Article 12.
21
David Lindsay, ‘An Exploration of the Conceptual Basis of Privacy and the Implications for the Future of
Australian Privacy Law’ (2005) Melbourne University Law Review 4, 5.
22
Office of the United Nations High Commissioner for Human Rights (1988) General Comment Number 16.
23
Human Rights Act 2004 (ACT) s12.
24
Charter of Human Rights and Responsibilities Act 2006 (Vic) s13.
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Secondly, the features of privacy are unformulated. In 1890, American writers Warren and
Brandeis argued that there should be a general right to privacy in the United States.25 This
spawned the development of four types of privacy invasion, which were authoritatively stated
by Prosser in 1960 as intrusion upon seclusion, public disclosure of embarrassing private
facts, appropriation of the plaintiff’s name and likeness, and publicity which puts the plaintiff
in false light.26 However, Prosser’s features of privacy do not wholly represent all of the
types of privacy interests valued by individuals, nor do they reveal the only ways in which
privacy can be invaded. Wacks argues that by addressing the issue of privacy in terms of
personal information only, the definitional strait-jacket is removed, resulting in a ‘less
artificial and more effective legal resolution’.27 However, restricting the concept to
information privacy limits the boundaries of the concept. What about some less traditional
features of privacy such as sexual orientation, gender identity or a woman’s decision to use
contraceptives or abort a foetus?28 On the one hand it would be impractical to list every
conceivable invasion of privacy. On the other hand, there is merit in arguing that privacy
must have value to be effective. The worth and features of privacy must therefore derive
from social values and norms. The definition is heavily reliant on context.
Demarcating between what is private and what is public is also an indeterminate exercise. ‘A
strict public/private divide is unsustainable - or at least is a very blurred ideal. Not only is the
boundary between public and private constantly shifting but it is inherently political.’29 A
broad interpretation of the meaning of private life is expounded in Von Hannover v Germany
[2004] ECHR 294, which held that any publication of an unauthorised photograph taken of a
particular person engaged in everyday activities outside their public duty will constitute a
25
Samuel D. Warren and Louis D. Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193, 196.
26
William L. Prosser, ‘Privacy’ (1960) 48 California Law Review 383, 389.
27
Wacks, above n 18, 10.
28
Brett Mason, Privacy without Principle: The Use and Abuse of Privacy in Australian Law and Public Policy
(Australian Scholarly Publishing, 2006) 16.
29
Ibid, 3.
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violation of the right to privacy under Article 8 of the European Convention on Human
Rights [‘ECHR’].30 In Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, the Court
held that the 19-month old son of the writer of the Harry Potter books, JK Rowling, had an
action for invasion of privacy as a result of a photograph being taken of the family walking
down a public street. The Court reasoned that Big Pictures UK Ltd would not have taken the
photograph if he was the child of ordinary parents.31 Drawing a line between public and
private spheres is therefore a highly context-dependent exercise. An activity is not private
simply because it is not done in public, and at the same time, an activity does not lose its
private nature simply because it occurs in a public place.32
Furthermore, in the modern world of technology and social networking, it may not be
possible to enforce a binary view of public versus private spheres. Rather, a more nuanced
view may need to be adopted, given the ease in which something that takes place in public
can be made permanent and widespread simply by uploading a photo to the internet or
sending photos via mobile phone technology, by members of the public or the members of
what has become known as the ‘citizen media’.33 Other modern developments also highlight
the blurring of the private and public spheres and the increased intrusion upon individual
privacy, such as full body scanners at airports, identification-card scanners and facial
recognition at nightclubs, smart cards, telemarketing, debt recovery, anti-terrorism checks,
Google Earth and WikiLeaks. How can we deal with an increasingly invasive and globalised
world where nothing is sacred anymore? A flexible definition of privacy will allow the law to
adapt to these invasions.
30
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4
November 1950, 213 UNTS 221 (entered into force 3 September 1953).
31
Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446.
32
New South Wales Law Reform Commission, Report No 120, above n 2, 20 [5.27].
33
Solove, above n 7, 7-8.
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Thirdly, protection of privacy is incoherent. The Australian legal system only protects
privacy indirectly through protecting some of the values underpinning it, such as property
rights, human dignity and reputation. This parasitic34 approach means that the current
framework fails to achieve direct and effective legal privacy protection. These difficulties are
further ‘exacerbated when a precise definition of the term is sought for legal purposes’.35
Ultimately, the concept currently does not have a consistent core36 capable of providing hard
and fast answers to what is private and what is not. This is further illustrated in Chapter Two
of this paper.
What makes the meaning of privacy even more difficult to characterise is the fluidity of the
concept. The concept changes according to generational norms, particularly in relation to the
dissemination of personal information:
It does appear that young people are more comfortable than their parents, and certainly their
grandparents, in sharing personal information, photos and other material on social networking
websites. The question is whether this represents the beginnings of an enduring cultural shift, or
simply the eternal recklessness of youth, played out in a new medium and utilising new
technology. Put another way, will today’s teenagers be horrified in a decade’s time when
prospective employers—and prospective partners and in-laws—can easily ‘google up’ intimate
and potentially embarrassing images and information?37
There exist immense difficulties for lawmakers and academic writers in arriving at a
definition of privacy. However, the common element that unites the literature is that
privacy’s meaning is contextually-relative. The following discussion identifies the current
legal and social context that should inform the meaning of privacy, which demonstrates why
it is necessary to give legal recognition to privacy interests in Australia.
34
Mason, above n 28, 18. See also Chapter 2 and Appendix: Table 1.
35
36
Mason, above n 28, 6.
37
Australian Law Reform Commission, Report No 108, above n 6, vol 1, 108.
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1.2. The Ripening of the Fruit
Privacy is a key policy issue facing our legal system.38 There is an overwhelming need for
protection of personal privacy. The exigencies of modern day living, our media-driven
society, the connectedness resulting from the forces of globalisation and the advent of social
networking have coalesced to create a world where there appears to be only one domain – the
public domain. The News of the World phone-hacking scandal should represent the last
remaining sensationalist disclosure39 to spark the privacy debate in Australia. It is time to
reform the law.
A decade has elapsed since Justice Callinan advocated for change to the privacy law
framework in the landmark case of Australian Broadcasting Commission v Lenah Game
Meats (2001) 208 CLR 199 [‘Lenah’]:
Having regard to current conditions in this country, and developments of law in other
common law jurisdictions, the time is ripe for consideration whether... the legislatures should
be left to determine whether provisions for a remedy for [a tort of invasion of privacy] should
be made...40
Is the time still ripe in 2011? Or has the proverbial privacy fruit gone bad with age?
The Prime Minister, Julia Gillard, believes it is picking season. On 21 July 2011, the Prime
Minister announced ‘[w]hen people have seen telephones hacked into, when people have
seen individuals grieving have to deal with all of this, then I do think that causes them to ask
some questions here in our country.’41 A consultation period for privacy reform was launched
38
Simon Chester, Jason Murphy and Eric Robb, ‘Zapping the paparazzi: is the tort of privacy alive and well?’
(2003) 27 Advocates’ Quarterly 357, 358.
39
Raymond Wacks, Privacy and Press Freedom (Blackstone Press Limited, 1995) 1.
40
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 328 at [335]
(Callinan J).
41
Julia Gillard, quoted in Katharine Murphy, ‘Canberra to move on Privacy Law’, The Age (online) July 21
2011 <http://www.theage.com.au/national/canberra-to-move-on-privacy-law-20110720-
1hp19.html#ixzz1T58aRPfx>.
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following this announcement, with Federal Privacy and Freedom of Information Minister
Brendan O’Connor explaining that the Government is ‘very serious about having this
discussion’ following the News of the World scandal, and that ‘there are two ideals we uphold
as a government - freedom of speech, and people’s right to have a private life’.42 In
September 2011, the Government released an Issues Paper, confirming this rationale and
expressing support for a statutory cause of action for serious invasions of privacy.43
While Lenah left the door open for the common law to develop a cause of action for breach
of privacy, a judicial majority is yet to take the bold step44 in developing the action.
Moreover, despite the best efforts and recommendations of the Australian and New South
Wales Law Reform Commissions, Australia has succumbed to both political inertia and
conservatism by refusing to recognise a right to privacy and by failing to provide a statutory
cause of action for privacy invasion.
The time is ripe45 for a cause of action for invasions of privacy, and Australian lawmakers
must take this step using a legislative framework. This is a logical and desirable step,46 given
the current social, political and technological environment. Privacy laws have not kept pace
with changes in society. The following discussion analyses two broad concerns underpinning
the current debate on privacy reform; the boundless flow of information on the internet, and
the underhanded behaviour by media organisations, both of which seriously threaten personal
privacy.
1.3. The [Anti] Social Network
42
Ibid.
43
Commonwealth, A Commonwealth Statutory Cause of Action for Invasions of Privacy, Issues Paper (2011).
44
Grosse v Purvis [2003] QDC 151 (16 June 2003) (Skoien J).
45
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 328 at [335]
(Callinan J).
46
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Each era in human history faces new threats in the battle for privacy. The cause stays the
same. It is only the weapons that change. From freedom from government intrusion in the
18th century to phone-hacking and Facebook stalking in the 21st Century, the pendulum
constantly swings between the right to privacy and the right to freedom of expression and
never quite seems to reach equilibrium. The inability to achieve a comfortable balance
between privacy and free speech continues unabatedly.
The explosion of new technology represents an advanced set of weaponry, threatening
personal privacy in a way never anticipated. However, it is not just the technology to blame.
We are, somewhat, authors of our own demise; our own worst enemy. We’re invading each
other’s privacy and our own47 almost every day, particularly by what we expose on the
internet. Network sharing sites such as YouTube, Twitter, Flickr and LinkedIn, and social
media sites such as MySpace and Facebook, invite us to share our most private and intimate
thoughts and feelings, our name, our hometown, our workplace, our marital status and our
image. Online services such as Cheaterville allow individuals to post the name, picture and
details of others who have been unfaithful in romantic relationships, in order to warn others
against engaging in relationships with those individuals.48 The website does not check the
accuracy of the allegations, and only provides a comment section so that the identified
individuals can respond. Facebook’s Check-In service allows users to post on their page
where they are and who they’re with. Google’s new Hangouts and Circle services provide
similar features. However, Google claims to allow users to share information with the people
that are authorised to access such information:
47
Solove, above n 7, vii.
48
Cheaterville, Cheaterville Home (5 October 2011) Cheaterville < http://cheaterville.com/>.
P a g e | 17
You share different things with different people. But sharing the right stuff with the right
people shouldn’t be a hassle. Circles make it easy to put your friends from Saturday night in
one circle, your parents in another, and your boss in a circle by himself, just like real life. 49
Almost every era has seen technology increase the flow of information; with the penny press
in the 1830s, the telephone in 1876, the snap camera in 1884, radio in 1900s, modern
television in the 1950s, the internet in the mid 1990s and smart phones within the last ten
years. The Gillard Government’s current commitment to build the National Broadband
Network [‘NBN’] means that 93% of Australians will have access to the internet via a high
speed fibre network once roll-out of the network is completed,50 and Australia will be among
the world’s leading digital economies by 2020.51 Yet the internet poses different challenges
than its technological predecessors. It is a developing technology, potentially without limits.
In the offline world, people had their fifteen minutes of fame and were forgotten the next day.
The internet’s boundless and omnipresent nature means that people’s stories are always
accessible. In a matter of milliseconds, that embarrassing thing you did last night is just a
Google search away,52 accessible to the entire world, saved as personal chronicles for infinity,
and remaining permanent ‘digital baggage’.53
With the click of a button, information can be instantaneously uploaded online and shared
with others, whether from a mobile phone, computer, webcam, Ipad or other electronic
device. With an increasingly-evolving ecosystem of interconnected networks developing
online, the free flow of information has reached enormous levels never before seen by
humankind. To illustrate, there are 750 million active users on Facebook, who collectively
49
Google, A Quick Look at Google+ (28 September 2011) Google <https://www.google.com/intl/en/+/
learnmore/index.html#circles>.
50
Commonwealth, Issues Paper, above n 43, 10.
51
Department of Broadband, Communications and the Digital Economy, The Vision (23 October 2011) National
Broadband Network < http://www.nbn.gov.au/the-vision/>.
52
Ruben Rodrigues, ‘Privacy on Social Networks: Norms, Markets and Natural Monopoly’ in Saul Levmore and
Martha C Nussbaum (eds), The Offensive Internet (Harvard University Press, 2010) 237.
53
Solove above n 7, 10.
P a g e | 18
spend over 700 billion minutes on the site a month.54 Facebook is the second most-visited
site in Australia.55 Twitter boasts over 100 million active users.56 Around 3 billion YouTube
videos are viewed everyday.57 This represents a phenomenal flow of information globally.
Online information can be a cash-cow for advertisers and online businesses, and also for the
social networking sites that provide the information. For instance, when a user ‘likes’ a page
on Facebook, such as a certain clothing brand or a confectionary product, Facebook can sell
ads to those businesses targeted at the users who like the page. Facebook receives data from
advertisers when users visit their sites, even if the user’s profile is set to private. Facebook
then sells the user’s endorsement, ‘with no payment other than the continued use of its
website’.58 Facebook made $2 billion last year, which was a 157% increase from 2009.59
With one click on an online advertisement, Facebook assumes it to be an endorsement worth
sharing. ‘Listen to a music app, and every song will appear in ‘tickers’ of your friends… Go
for a run using Nike Plus, an electronic distance calculator, your effort is logged for all to
critique. Watch a movie, its title is broadcast to all you know.’60 Guvera, a music-sharing
service, provides free music downloads to individuals in exchange for personal information
such as their likes and dislikes, which are used by the company’s advertising partners.61
Individuals may therefore be more inclined to provide personal information if they perceive
that some tangible benefit will arise from the disclosure.
54
Facebook, Statistics (14 September 2011) Facebook <http://www.facebook.com/press/info.php?statistics>.
55
Tim Dick, ‘From private life to public knowledge’, News Review, Sydney Morning Herald (Sydney) 1 October
2011, 7.
56
Twitter, ‘One hundred million voices’ on Twitter, Twitter Blog (8 September 2011) <http://blog.twitter.com>.
57
YouTube, Statistics (14 September 2011) YouTube <http://www.youtube.com/t/press_statistics>.
58
Dick, above n 55.
59
eMarketer.com, cited in Dick, above n 55.
60
Dick, above n 55.
61
Michelle Star, ‘Guvera music site uses guerrilla advertising tactics’, C Net (15 March 2010) <http://www.
cnet.com.au/ guvera-music-site-uses-guerrilla-advertising-tactics-339301774.htm>.
P a g e | 19
Critics also argue that Facebook cookies, which are packets of data used to track user
behaviour, keep sending information to Facebook even after the user logs out, resulting in
‘silent total surveillance’.62 Facebook bluntly responded to these criticisms: ‘we don’t share
information we receive about you with others’.63 However, Facebook’s privacy policy, under
the heading ‘how we share information’, provides large exceptions to this rule. Facebook
shares users’ information in a range of situations. For example, when it has the user’s
permission, a user invites a friend to join, or for advertising and offering services.
Significantly, a search engine can gain access to the name and profile picture of a user, and
anything else which is set to the ‘Everyone’ setting.64 Such frictionless sharing of
information is beyond individual control, unless the user leaves the site.
YouTube and social networking sites have meant that the media also has access to this public
and voluntarily-provided information, which has led to the creation of internet sensations,
celebrities and scandals. In 2008, Olympic swimmer Stephanie Rice caused controversy over
raunchy photographs of her in a police costume on her Facebook page. The photos were
removed from Facebook but were then reproduced on the Daily Telegraph’s website,
receiving 1.7 million hits in one week.65 In 2009, 19 year old Sydney woman Claire
Werbeloff became known as the Chk-Chk-Boom-girl when her eye-witness account of a
Kings Cross shooting went viral on YouTube and was later exposed as an elaborate lie. The
story was covered by the Australian media, including A Current Affair. She was hounded by
the press and turned to a Public Relations agency to handle the attention it caused.66 In
March this year, fifteen year old Casey Haynes fought back against a schoolyard bully, with
62
Dick, above n 55.
63
Dick, above n 55.
64
Facebook, Data Use Policy (September 2011) Facebook <http://www.facebook.com/full_data_use_policy>.
65
Angela Saurine, ‘Stephanie Rice Facebook pictures censored’, Daily Telegraph (online), April 2 2008
<http://www.dailytelegraph.com.au/news/rice-facebook-pics-censored/story-0-1111115947818>.
66
Daily Telegraph, ‘Chk Chk Boom girl Clare Werbeloff flees as Facebook fury erupts’, Daily Telegraph
(online), 25 May 2009 < http://www.dailytelegraph.com.au/news/chk-chk-boom-girl-claire-werbeloff-flees-as-
facebook-fury-erupts/story-e6freuy9-1225715728133>.
P a g e | 20
the fight being caught on camera and posted on YouTube,67 which also created a media
frenzy. Currently, these individuals have no redress for invasion of their privacy.
On the other hand, online anonymity has proved fatal in a number of cases. In the United
States, a thirteen year old girl committed suicide after the mother of one of her school friends
purported to be her boyfriend, and then told her that the world would be better off without
her.68 This and other situations of cyber-bullying indicate that the law currently offers no
effective solution to privacy issues online.
The explosion of online information and interconnectedness therefore necessitates a
comprehensive and effective education campaign so that individuals may be informed and
warned about the long-term consequences of their behaviour online. A US study has revealed
that 20 million Facebook users are under eighteen years of age. Over 7.5 million users are
under thirteen,69 which is the stipulated minimum age of users under Facebook’s Statement of
Rights and Responsibilities.70 Five million are under 10 years.71 These worrying statistics
indicate that young people are placing themselves at risk of dangerous online behaviour such
as cyber-bullying, and could be targeted by sexual predators. Furthermore, young people fail
to appreciate the implications that online information can have for the future.
These scenarios and studies pose the question, has the free flow of information made us less
free?72 The long-term consequences may be dire for people whose personal image or
information is found online and spread further by the media. Employment opportunities and
67
YouTube, Victim fights back in NSW Sydney school (16 March 2011) YouTube, <http://www.youtube.com
/watch? v=isfn4OxCPQs>.
68
Mail Online, ‘Girl, 13, commits suicide after being cyber-bullied by neighbour posing as teenage boy’, Daily
Mail (online) 19 November 2007 <http://www.dailymail.co.uk/news/article-494809/Girl-13-commits-suicide-
cyber-bullied-neighbour-posing-teenage-boy.html>.
69
Dawn.com, ‘7.5 million Facebook users are under 13’, Dawn.com (online), 12 May 2011 <http://www.dawn.
com/2011/05/12/7-5-million-facebook-users-are-under-13-study.html>.
70
See Rule 4.5 in Facebook, ‘Statement of Rights and Responsibilities’ Facebook.com (online), 26 April 2011
<http://www.facebook.com/terms.php>.
71
Dawn.com, above n 69.
72
Solove, above n 7, 2.
P a g e | 21
personal and family relationships may be adversely affected. An interesting exercise
illustrating the extent of availability of this type of information occurred at Fordham
University in the United States, where a Law Professor, angered by Justice Scalia’s reluctance
to support protection of personal information, set his students the task of collecting as much
information about the judge as they could. The students turned in fifteen pages of
information, which included his Honour’s home address, telephone number, value of his
home, his wife’s personal email address, photos of his grandchildren and even his personal
movie and food preferences.73 His Honour’s response was that the project was ‘perfectly
legal’ but it showed ‘abominably poor judgment’.74 This type of project illustrates that once
information is in the public space, it becomes public property and is therefore beyond
individual control.75 The value of individual autonomy is diminished.
However, this paper is not arguing that such technological advances are all negative within
contemporary society. The internet provides extraordinary possibilities and limitless
advantages for human welfare and collective knowledge. Some technological advancements
that might impinge on privacy may in fact facilitate the common good and the public interest,
for example the iPhone Application which captures a photo of anyone who tries to unlock a
stolen phone and sends it to the nominated email address of the phone’s owner.76 However,
there is potential for technology to be abused. For example, in August this year a male
Australian Defence Force Academy cadet was charged with indecency and suspended from
training after he used his mobile phone to film a female cadet in the shower.77 This paper
73
Marta Neal, ‘Fordham Law Class Collects Personal Info about Scalia’ American Bar Association Journal
(online) 29 April 2009 <http://www.abajournal.com/news/article/fordham_law_class_collects_scalia_
info_justice_is_steamed>.
74
Ibid.
75
Kirby, above n 1, 7.
76
CBS News, ‘Say Cheese! iPhone App catches thief’, CBS News (online), 8 October 2011 <http://www.
cbsnews.com/stories/2011/10/08/scitech/main20117622.shtml>.
77
ABC News, ‘ADFA cadet suspended over shower scandal’, ABC News (online), 27 August 2011
<http://www.abc.net.au/news/2011-08-27/adfa-cadet-suspended-after-shower-scandal/2858408>.
P a g e | 22
brings into sharp focus the main challenges and policy issues raised by such technological
advancements, which should be addressed by law and education.
Even before the birth of the internet, American writers Warren and Brandeis acknowledged
the increasing importance of privacy to the individual in modern day life:
The intensity and complexity of life, attendant upon advancing civilisation, have rendered
necessary some retreat from the world, and man [or woman], 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 [or her] privacy, subjected him [or her] to mental pain and distress, far greater than could
be inflicted by mere bodily injury. 78
In 1976, after the adoption of the ICCPR, the United Nations [‘UN’] recommended that
‘States… adopt legislation, or bring up to date existing legislation, so as to provide protection
for the privacy of the individual against invasions by modern technological devices’.79 As the
Honourable Justice Michael Kirby noted, the amount of publicly-available personal
information is likely to increase rather than decrease: ‘Access to this information is what
occasions the contemporary fragility of privacy – a human attribute that has been steadily
eroded over the last century’.80 The development of modern technology and communication
therefore provide very strong reasons to protect privacy and provide redress for those whose
privacy is invaded.
1.4. News of the World and the Phone-Hacking Scandal
78
Warren and Brandeis, above n 25, 196.
79
United Nations Secretary General, Respect for the privacy and integrity and sovereignty of nations in the light
of advances in recording and other techniques, UN Doc E/CN.4/1116 (1976).
80
The Honourable Justice Michael Kirby, ‘Privacy in Cyberspace’ (1998) 21 University of New South Wales
Law Journal 323, 325.
P a g e | 23
While we voluntarily reveal personal information everyday in the online realm, there are
many situations in modern life where invasions of our privacy are out of our control. The
recent behaviour by the now-defunct News of the World sent shockwaves throughout the
globe when serious allegations of phone-hacking were made against the newspaper.
Involved in illegal voicemail interception, News of the World engaged in ‘lawbreaking on an
industrial scale.’81 Individuals’ private and innermost feelings were essentially ‘bought and
sold for commercial gain.’82 Subsequent investigation of the newspaper’s actions revealed
that the practice of phone-hacking was widespread within the organisation, and was openly
discussed in editorial conferences, until the Editor, Andy Coulson, banned explicit reference
to the term.83
News of the World hired private investigators to hack into the phones of not only the Royal
family and celebrities, such as Hugh Grant and Scarlett Johansson, but also the phones of
private citizens. The voicemails of victims and families of the victims of the 9/11 terrorist
attacks in New York were allegedly targeted, which would have likely included ‘harrowing
messages from desperate loved ones trying to make contact with their relatives’.84 News of
the World was also found to have hacked into the voicemail of murdered school girl from the
United Kingdom, Milly Dowler, and allegedly deleted some of Milly’s voicemails, which
gave her family hope that she was alive.85 Furthermore, the Murdoch press was recently
81
Australian Broadcasting Corporation, ‘Bad News’, Four Corners, 29 August 2011 (Gordon Brown).
82
Ibid.
83
Julia May, ‘Letter reopens hacking scandal’, Sydney Morning Herald (online) 17 August 2011 <http://www.
smh.com.au/world/letter-reopens-hacking-scandal-20110816-1iwka.html >.
84
Sydney Morning Herald, ‘9/11 victims ‘targeted’ by tabloid phone hackers’, Sydney Morning Herald (online),
11 July 2011 < http://www.smh.com.au/world/911-victims-targeted-by-tabloid-phone-hackers-20110711-
1ha90.html>.
85
Nick Davies and Amelia Hill, ‘Missing Milly Dowler’s voicemail was hacked by News of the World’, The
Guardian (online) 4 July 2011 <http://www.guardian.co.uk/uk/2011/jul/04/milly-dowler-voicemail-hacked-
news-of-world>.
P a g e | 24
investigated for hacking into the computers of competitors and for engaging in industrial
espionage.86 The case settled out of court for an estimated $500 million.87
Although there has been no evidence to suggest that this sort of behaviour is occurring in
Australia, such events ‘put the spotlight on whether there should be a [right to privacy]’,88 and
have led to widespread concern in the community.89 The phone-hacking scandal has brought
into sharp focus the need for adequate privacy protection in Australia so that this kind of
behaviour is discouraged and prevented. Indeed, if an Australian media organisation acted in
the same fashion, they would be guilty of an offence under section 7 of the
Telecommunications (Interception and Access) Act 1979 (Cth).90 However, looking more
broadly and outside the phone-hacking scandal, there are major deficiencies in privacy laws
in Australia, particularly where the privacy of individuals are being invaded by the media.
The News of the World situation simply sheds light on the need for a closer examination of
the gaps and unravelling threads in Australia’s privacy framework.
1.5. The Need for Privacy Protection
Privacy provides individual autonomy, emotional security, the sharing of confidences and
intimacies, and enhances the ability to reflect on personal values.91 Privacy is integral to an
86
Scott Zamost, Todd Schwarzschild and Drew Griffin, ‘Exclusive: Videos detail News America tactics against
competitors’ CNN US (online) 14 October 2011 <http://articles.cnn.com/2011-10-14/us/us_news-corp-
america_1_world-phone-hacking-scandal-news-corp-british-newspaper?_s=PM:US>.
87
CNN, ‘Tapes show News Corp. subsidiary tactics’ CNN (online) 14 October 2011 <http://edition.cnn.com/
video/#/video/crime/2011/10/13/pkg-griffin-newscorp-hacking.cnn?hpt=hp_t2>.
88
Brendan O’Connor, A Right to Privacy in Australia (21 July 2011) Attorney General <http://www.ag.gov.au/
www/ministers/oconnor.nsf/Page/MediaReleases_2011_ThirdQuarter_21July2011-ArighttoprivacyinAustralia>.
89
For example, 51% in an online poll said they had become more concerned about phone-hacking following the
scandal: ‘Aussies concerned about phone-hacking’ The Age (online) 25 July 2011 <http://news.theage.com.au/
breaking-news-national/aussies-concerned-about-phone-hacking-20110725-1hwuc.html>.
90
See also Chapter Two and Appendix Table One.
91
Westin, above n 14, 33.
P a g e | 25
individual’s social and intimate relationships, mental health, employment, freedom and
creativity.92
Invasions of privacy can occur in a myriad of ways in contemporary society. The methods by
which others can invade privacy will only increase as technology advances. The law must
therefore adapt continually to changes and developments in the surrounding environment.
Social networking, globalisation and the free flow of information have operated to increase
the amount of personal information available in the public domain, and events such as phone-
hacking this year have drawn attention to the failure of the law to protect personal privacy
and the ease in which privacy can be invaded. Telemarketing, reality TV shows like Big
Brother, the Bill Henson photography scandal93 and the prospect of introducing an Australia
Card94 also indicate that privacy is a large and topical issue.95 While these situations ‘pose
new and difficult issues, they are variations on the same immemorial tensions in the law in
Australia: the tension between privacy and free speech, the nature of privacy, [and] the
virtues and vices of gossip and shaming.’96
The means used to intrude upon individual privacy will continue to change. The reasons for
privacy protection will remain the same. The law, as it stands currently, does not address
these concerns.
92
93
Wendy Frew, ‘Artists may face classification to counter nudity’, The Age (online), 18 April 2011
<http://www.theage.com.au/entertainment/art-and-design/artists-may-face-classification-to-counter-nudity-
20110417-1djrv.html>.
94
Australia Card Bill 1986 (Cth).
95
The invasion of the author’s privacy has further informed the views expressed in this paper. The author’s
wallet was stolen in 2010 by a drug-addicted thief at a supermarket, and later the author’s identity was stolen
through posing as the author to a bank teller to take money from the author’s accounts and to take a car for a
test-drive.
96
P a g e | 26
2. THE CURRENT PRIVACY LAW FRAMEWORK:
AUSTRALIAN AND OVERSEAS APPROACHES
Do humans actually have a right to privacy? If so, where does it come from? What is
its scope? How does it rank in comparison to other rights? Legal discourse has not
sufficiently addressed these issues. Most privacy advocates simply assume that the right to
privacy has a sound foundation.97
2.1. The Missing Cause of Action98
Privacy is a multifaceted concept which is currently protected in a piecemeal and patchy
fashion, developing at different rates and in different jurisdictions, devoid of an overarching
rationale.99 This is visibly evident in Appendix Table 1: Current Legal Protection of
Privacy,100 which shows how different components of privacy are currently protected under
Australian law. The table illustrates that privacy in general is, at best, protected incidentally.
For example, criminal law and tort protect some aspects of territorial privacy101 and bodily
privacy.102 Defamation law protects reputation, but only to the extent that the information
published is untrue.103 Equity protects information imparted under the obligation of
confidence.104 Certain statutes prevent phone-tapping and surveillance without authority.105
97
98
New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper 1 (2007) 56 [2.85].
99
100
See page 75.
101
Inclosed Lands Protection Act 1901 (NSW) s4; Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR
457, 465.
102
Summary Offences Act 1988 (NSW), Crimes Act 1900 (NSW); Wilkinson v Downton [1897] 2 QB 57.
103
Defamation Act 1974 (NSW).
104
Coco v AN Clark (Engineers) Ltd. [1969] RPC 41.
105
Telecommunications (Interception and Access) Act 1979 (Cth).
P a g e | 27
While the most highly regulated protection of privacy occurs in the information privacy
realm,106 even this statutory scheme is ‘complex, uneven, often overlapping and far from
uniform throughout the country’.107
Significantly, there is no general action for breach of privacy in Australia. This creates
uncertainty and inconsistency, particularly because the common law is developing at different
rates and in different ways across the states and territories. This poses large difficulties for
individuals and corporations who need to ‘assess the effect of the law on their operations and
to implement appropriate policies to minimise their potential liability’ under the law.108
Furthermore, as exemplified by Table 1 of the Appendix, invasions of privacy by the media or
other individuals would only be covered peripherally and partially by the current framework.
There is essentially no one-stop-shop for privacy protection. The fabric of the Australian
privacy law system is therefore inadequate.
For the reasons examined below, and through evaluation of the approaches used in overseas
jurisdictions, this paper argues that a statutory cause of action is the preferred method of
protection for privacy. This is also generally supported by the ALRC109 and NSWLRC.110
Extending existing common law or equitable actions is not appropriate for the kind of privacy
protection envisaged by this paper. This Chapter examines the inadequacies of those
methods.
106
Privacy Act 1988 (Cth).
107
108
Australian Law Reform Commission, Report 108, above n 6, vol 3, 2536, [74.2].
109
Ibid, vol 3, 2564 [74.116].
110
New South Wales Law Reform Commission, Report No 120, above n 2, 21-22 [4.16]-[4.17].
P a g e | 28
2.2. Tort: a ‘Negligent’ Approach

2.2.1. The Case of New Zealand
New Zealand takes a common law approach to protection of privacy. The privacy tort
established by Hosking v Runting [2005] 1 NZLR 1 [‘Hosking’] requires two fundamental
requirements to be proved – firstly, the existence of facts in which there is a reasonable
expectation of privacy and secondly, the publicity of those facts are considered highly
offensive to an objective reasonable person.111 The Court has regard to the particular facts of
the case and the use of the offending material in the circumstances.112
However, the approach in New Zealand is narrow. In fact, the Court of Appeal in Hosking
held that any all-encompassing action for breach of privacy should be ‘at the instigation of
the legislature, not the courts’.113 The common law action is restricted only to invasions of
privacy where the defendant gives publicity to private and personal information of the
plaintiff.114 The tort does not cover intrusions upon a plaintiff’s seclusion. The tort does not
protect situations where the private act or information is not publicised, for example in a
peeping-Tom scenario where privacy is invaded by a neighbour looking into the home of
another and viewing intimate acts or conversations. The tort also does not provide a simple
test for determining what a private fact is.115
Only fifteen people have taken action under this tort, many of them without a public
profile.116
111
Hosking v Runting [2005] 1 NZLR 1, [117] (Gault P and Blanchard JJ).
112
Rogers v TVNZ [2007] NZSC 91, [59] (Tipping J).
113
Hosking v Runting [2005] 1 NZLR 1, [110] (Gault P and Blanchard JJ).
114
Hosking v Runting [2005] 1 NZLR 1, [148] (Gault P and Blanchard JJ), and [244] (Tipping J).
115
Hosking v Runting [2005] 1 NZLR 1, [110], [119] (Gault and Blanchard JJ); see also Amanda Stickley,
‘Common Law Tort of Privacy – Faltering Steps?’ (2004) 25 Queensland Lawyer 81, 82.
116
This includes lower court decisions before Hosking: Professor John Burrows, ‘Privacy and the Courts’
(Speech delivered to the Privacy Forum, Wellington New Zealand, 27 August 2008).
P a g e | 29
2.2.2. The Case of the United States
A majority of American states provide common-law privacy protection.117 However, the
original complex-of-four torts put forward by Prosser in 1960 (seclusion, appropriation,
publicity and false light)118 have proved of limited effect in the United States. 119 The torts
‘failed to provide effective protection of privacy,’ 120 because of the priority afforded to free
speech under the First Amendment of the United States Constitution. Whilst the privacy torts
were not originally anchored in any constitutional guarantees, the Courts have since
developed zones of privacy121 within a penumbra of guarantees under the Bill of Rights, in
order to provide constitutional protection of privacy.122
Despite this, constitutional privacy laws only cover narrow issues such as marriage, the
family, procreation and abortion, and do not extend to information and seclusion privacy.123
This is largely due to the strength of the constitutionally-entrenched right to freedom of the
press,124 and the low threshold requirement for disclosure of information: If information is
newsworthy, it is generally held to be of legitimate public concern and may be published.125
117
Only Virginia, Minnesota, Rhode Island and Wisconsin do not protect privacy: see New South Wales Law
Reform Commission, Consultation Paper 1, above n 98, 94 [4.7].
118
Prosser, above n 26, 389.
119
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2540 [74.19].
120
David A Anderson, ‘The Failure of American Privacy Law’ in Basil S Markensis (ed) Protecting Privacy:
The Clifford Chance Lectures Volume 4 (Oxford University Press, 1999) 151.
121
New South Wales Law Reform Commission, Consultation Paper 1, above n 98, 97-98 [4.15].
122
Griswold v Connecticut 381 US 479 (1965).
123
Mason, above n 28, 47.
124
United States Constitution First Amendment.
125
Restatement (Second) of Torts § 652D.
P a g e | 30
2.2.3. A Privacy Tort in Australia?
A common law tort for invasion of privacy is not an adequate avenue for protecting privacy
in Australia. Statute is preferred over common law development. Minister for Privacy and
Freedom of Information, Brendan O’Connor, announced in July 2011 that the government
supports a statutory right to sue for serious privacy invasions, ‘rather than letting the system
of privacy regulation evolve in an ad-hoc way through court decisions.’126 Simply plugging
the gaps in Australian privacy law by extending existing common law causes of action is not
preferred.127
Furthermore, the Courts are unwilling to allow such a development. For sixty years,
Australian Courts rejected the proposition that there was a tortious action for invasion of
privacy.128 In 2001, the High Court in Lenah held that the authority in Victoria Park Racing129
did not stand in the way of developing a tort for invasion of privacy, therefore extending an
invitation130 to the common law to create the action. However, no Court has yet taken this
bold step.131 The District Court of Queensland and Victorian County Court represent some of
the only Courts to hold that such a step is a logical and desirable one to take.132 Yet, in the
latter Court, the decision was appealed and eventually settled, therefore providing no
126
Murphy, Katharine, ‘Canberra to move on Privacy Law’, The Age (online) July 21 2011 <http://www.theage.
com.au/national/canberra-to-move-on-privacy-law-20110720-1hp19.html#ixzz1T58aRPfx>.
127
128
Victoria Park Racing and Recreation Grounds Company Limited v Taylor (1937) 58 CLR 479.
129
Victoria Park Racing and Recreation Grounds Company Limited v Taylor (1937) 58 CLR 479, 496.
130
Amanda Stickley, ‘Personal Privacy: Boldly Going Where No Australian Court Has Gone Before: Part I’
(2003) 24 Queensland Lawyer 72.
131
132
Grosse v Purvis [2003] QDC 151 (16 June 2003) (Skoien J) [442].
P a g e | 31
definitive precedent.133 Other Courts continue to reject tortious claims for invasion of
privacy.134
The Lenah High Court had the opportunity to create a tort for invasion of privacy. However,
given this chance, it refused recognition, therefore failing ‘on all counts’135 to protect privacy
generally. The reluctance of the common law to find a cause of action for invasion of privacy
therefore exemplifies why the common law is inadequate to protect privacy in any concrete
and measurable way.
2.3. Equity: the new fusion fallacy

2.3.1. The Case of the United Kingdom
Like Australia, the United Kingdom ‘knows no common law tort of invasion of privacy’.136
Furthermore, previous attempts at legislative reform in the UK failed at the first hurdle.137
However, without a general or ‘freestanding’ right to privacy, the UK’s equitable action for
breach of confidence138 evolved instead, representing a rights-based approach to privacy
protection.139 This was driven partly by the heavy hand of international privacy obligations
contained in Article 8 of the ECHR,140 which was ratified to some extent in the Human Rights
133
Australian Broadcasting Commission v Jane Doe [2007] VCC 281.
134
See, eg, Giller v Procopets [2004] VSC 113; Kalaba v Commonwealth of Australia [2004] FCA 763; Milne v
Haynes [2005] NSWSC 1107; Moore-Mcquillan v Work Cover Corporation SA [2007] SASC 55;
135
New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper 1, above n 98, 55
[2.80].
136
OBG v Allan; Douglas v Hello! Ltd [2007] 2 WLR 920, [272]; see, eg, in Australia, Victoria Park Racing and
Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 and the decline of the High Court in Lenah to create a
tort for invasion of privacy.
137
See, eg, Right of Privacy Bill 1961 (UK), Right of Privacy Bill 1967 (UK), Right of Privacy Bill 1969 (UK),
Right of Privacy Bill 1987 (UK), Right of Privacy Bill 1989 (UK).
138
Which traditionally is comprised of the elements from Coco v AN Clark (Engineers) Ltd [1969] RPC 41,
which require the information to be confidential, imparted in circumstances where there is an obligation of
confidence, and the unauthorised use of that information is detrimental.
139
Lindsay, above n 21, 4.
140
November 1950, 213 UNTS 221 (entered into force 3 September 1953) Article 8.
P a g e | 32
Act 1998 (UK).141 Significantly, however, the Act also upholds the right to freedom of
expression,142 which is manifested within Article 10 of the ECHR.143 Both rights are
considered to be prima facie equal and are weighed against each other by the courts using a
proportionality test.144
However, such an extension within the traditional interpretation of the equitable cause of
action represented an attempt to fit a square peg in a round hole. The second element for
breach of confidence – that the information was imparted in circumstances giving rise to an
obligation of confidence145 – finds no solace in privacy protection. This is because many
instances of privacy violation occur where there is no pre-existing relationship of confidence.
Media organisations, for example, do not have fiduciary duties to ordinary members of the
public. The obligation of confidence would have to arise once the defendant has unlawfully
or surreptitiously acquired the information that he or she should have known was ‘not free to
use’,146 which is counter-intuitive and would represent a significant leap for Courts of Equity
to make.
2.3.2. Extending breach of confidence in Australia?
The idea that the equitable action for breach of confidence can protect privacy interests in
Australia is not new.147 Rivette argues that the case of Giller v Procopets (2008) 40 FamLR
378 gives breach of confidence the ‘teeth to respond to invasions of privacy arising from the
141
Human Rights Act 1998 (UK) ss2, 6.
142
Human Rights Act 1998 (UK) s12.
143
November 1950, 213 UNTS 221 (entered into force 3 September 1953) Article 10.
144
Ash v McKennitt [2007] 3 WLR 194, [46].
145
Coco v AN Clark (Engineers) Ltd [1969] RPC 41.
146
Ash v McKennitt [2007] 3 WLR 194, [8].
147
There are a large number of academic articles on the overlap between breach of confidence and privacy,
which are beyond the scope of this paper.
P a g e | 33
non-consensual disclosure of personal information’.148 Read with Lenah, Rivette argues that
there may be an actionable breach of confidence in the case of a secretly-obtained photograph
or piece of information by the media, where that material is considered private if its
disclosure would be highly offensive to a reasonable person of ordinary sensibilities.149
While at first blush, this approach may seem to adequately address the concern, such an
approach in reality is a toothless tiger for several reasons.
To begin with, confidentiality and privacy are ‘simply different concepts. While most
confidential acts and information could arguably be described as private, not all private
activity is necessarily confidential.’150 To reconcile the two would entail trying to fit a square
peg in a round hole.151 Plaintiffs would be left without redress.152 Breach of confidence is
traditionally used to protect information imparted under the fiduciary obligation of
confidence. Breach of confidence is not, under its current construction, suited to all
situations where one person invades the privacy of another, particularly when the parties
involved are strangers and do not hold obligations of confidence to one another. Only
intrusions of privacy which result in actual publication are actionable under the current test
for breach of confidence, no matter how ‘strong and understandable may be the feeling of
harassment of a person who is hounded by photographers’153 or the media. This would mean
that the plaintiff in Australian Broadcasting Commission v Jane Doe [2007] VCC 281 would
have an equitable action in breach of confidence, because she was identified on television as
148
Michael Rivette, ‘Litigating privacy cases in the wake of Giller v Procopets’ (2010) 15 Media and Arts Law
Review 283.
149
Ibid, 289.
150
[2.80].
151
Johnston, Mark, ‘Should Australia force the square peg of privacy into the round hole of confidence or look
to a new tort?’ (2007) 12 Media and Arts Law Review 441.
152
[2.84].
153
R Toulson, ‘Freedom of Expression and Privacy’ (Paper presented at Association of Law Teachers Lord
Upjohn Lecture, London, 9 February 2007), 7; quoted in Australian Law Reform Commission, Report No 108,
above n 6, 2564.
P a g e | 34
a victim of rape.154 Conversely, the plaintiff in Grosse v Purvis [2003] QDC 151 would not,
because the privacy action related to stalking and other acts that were not publicised by the
media.155 This approach would thereby create inconsistency if it were applied in Australia,
particularly given the reticence of the courts toward providing equitable privacy protection at
the present time.
Additionally, confidentiality actions are creatures of equity. Equitable protection of privacy
would therefore only attach to information that ought not to be disclosed, without any real
regard for the intrinsic value of the information itself.156 Furthermore, not all privacy actions
are information-related. Interference with personal bodily privacy157 would not be covered
under an extension of the breach of confidence doctrine.
Finally, mere emotional distress will often be the only damage for which a plaintiff claims as
a result of an invasion of privacy. However, there appears to be no Australian authority to
support equitable damages or equitable compensation to be awarded for mental distress
alone. While Neave and Ashley JJA relied upon English authority to support a finding of
equitable compensation in Giller v Procopets,158 this is an approach that is simply not
applicable in Australia.159 Moreover, Australia does not have a Bill of Rights statute upon
which to base that action.
154
In this case, the ABC had reported on a court case concerning the plaintiff’s husband. The television
broadcasts identified his name, the offence of rape within marriage which he was convicted with, the suburb in
which they lived, and the victim’s name (which included her maiden name, which she reverted to after the rape).
The plaintiff took action against the Australian Broadcasting Corporation (ABC) for, amongst other claims,
breach of privacy and breach of confidence, and was successful in obtaining compensation.
155
In this case, the plaintiff claimed breach of privacy, amongst other claims, for acts of stalking, intimidation,
abusive phone calls and other acts by the defendant.
156
157
See, eg, Wainwright v Home Office [2004] 2 AC 406.
158
Giller v Procopets (2008) 40 Fam LR 378.
159
Michael Tilbury, ‘Remedies for breach of confidence in privacy contexts’ (2010) 15 Media and Arts Law
Review 290, 291.
P a g e | 35
Extending the breach of confidence action to cover privacy cases is inappropriate, and
stretches the limits such that the core of both actions is compromised. The two actions
should be separate.
2.4. A Statutory Solution
A small number of jurisdictions have created statutory protection for privacy. Australia is
therefore in a unique position to draw upon the benefits of the jurisdictions with successful
legislation, and also to learn from and avoid failures of other jurisdictions. For example,
some provinces of Canada and some American states provide general statutory protection for
privacy; however the laws are not uniform across the countries. Ireland160 and Hong Kong161
have considered passing legislation which create causes of action for invasions of privacy,
however both countries’ respective parliaments have not yet passed any laws. Appendix
Table Two: ‘Elements, Defences and Remedies in Privacy Statutes from Overseas
Jurisdictions’ compares these jurisdictions.162 Consideration of these approaches is essential
to creating the most successful proposal in the Australian context.
2.4.1. The Case of North America
160
Ireland Working Group on Privacy, Report of Working Group on Privacy (2006).
161
Hong Kong Law Reform Commission, Civil Liability for Invasion of Privacy (2004) 139 [Recommendation
2].
162
See page 81.
P a g e | 36
The Canadian Provinces of Saskatchewan,163 Manitoba,164 Newfoundland165 and British
Columbia166 each passed privacy legislation creating statutory torts for violation of privacy.
All four jurisdictions create a tort, actionable without proof of damage, for a person who
wilfully and without claim of right, violates the plaintiff’s privacy without their consent or
lawful authority.167
Manitoba utilises a higher threshold for the elements of the action by requiring the violation
to be substantial, unreasonable and without a claim of right.168 However, even in the other
three Canadian jurisdictions maintaining lower thresholds, there have been few actions for
violation of privacy, and plaintiffs have successfully instituted such actions in only 25% of
the cases.169 Furthermore, nominal damages and exorbitant litigation costs have meant that
‘the tort of privacy has achieved little’170 in terms of social utility.
Each province, except for British Columbia, provides a non-exhaustive list of examples of the
types of violations of privacy which would come under the tort, including auditory
surveillance, listening to conversations, using a person’s name or likeness in advertising, and
use of personal documents.
Each province lists defences171 for the tort, which include consent, lawful right, public
interest, exercising duties of peace officers, reasonable news gathering172 and defamation
privileges. Each province, except for British Columbia, also provides a range of remedies,
including damages, injunctions, account of profits and destruction of the offending material.
163
Privacy Act 1978 RSS (Saskatchewan) c P-24.
164
Privacy Act 1987 CCSM (Manitoba).
165
Privacy Act 1990 RSNL (Newfoundland and Labrador).
166
Privacy Act 1996 RSBC (British Columbia).
167
British Columbia also creates a tort for unauthorised use of name or portrait.
168
Privacy Act 1987 CCSM (Manitoba) s 2(1).
169
New South Wales Law Reform Commission, Consultation Paper 1, above n 98, 84 [3.49].
170
Chester, Murphy and Robb, above n 38, 359.
171
British Columbia uses the term ‘exception’ instead of ‘defence’.
172
Only in Saskatchewan.
P a g e | 37
There is limited statutory protection of privacy in the United States, however this is also
piecemeal. Some states simply recognise or alter the common law torts through statute.173
The California Civil Code creates a range of statutory torts. For example, the tort of entering
land with the intent to capture images, sound recordings or physical impressions of the
plaintiff engaging in a personal or familial activity, which is proved in situations where
physical invasion occurs in a manner that is offensive to a reasonable person.174 The
Massachusetts General Law also provides that a person has ‘a right against unreasonable,
substantial or serious interference with his privacy. The superior court shall have jurisdiction
in equity to enforce such right and in connection therewith to award damages.’175 However,
like Australia, the United States has a piecemeal and patchy framework for protection of
privacy. Such an approach lacks consistency and uniformity – two factors that are highly
valued in any legal system. Australia can and should learn from the successes and failures in
overseas jurisdictions in order to formulate the best possible approach to privacy protection.
2.4.2. A Statutory Approach in Australia
This paper strongly endorses a statutory approach to the protection of privacy. The reluctance
of the common law to develop, and the inadequacy of equity to formulate the action for
invasion of privacy, provides the impetus for statutory reform within the privacy law area. A
statutory cause of action ‘avoids the problems inherent in attempting to fit all the
circumstances that may give rise to an invasion of privacy into a pre-existing cause of
action.’176 Moreover, a statutory scheme provides a more ‘flexible approach to defences and
173
See, eg, Code of Virginia §§ 8-650, c671; 765 Illinois Consolidated Statutes 1075/10 9; New York State
Consolidated Laws, Civil Rights §50.
174
California Civil Code 1998 §1708.8(a).
175
Massachusetts General Laws, Part III Courts, Judicial Officers and Proceedings in Civil Cases, Title I Courts
and Judicial Officers, Chapter 214 Equity Jurisdiction, Section 1B.
176
Australian Law Reform Commission, Report No 108, above n 6, 2564 [74.116].
P a g e | 38
remedies’,177 is not constrained by rules or assumptions of torts or equity, and allows for
explicit consideration of competing public interests.178 While the Canadian and United States
statutes provide some guidance as to the wording of legislation relating to invasions of
privacy, the fact that they are inconsistent nationwide means that the Australian approach
should be uniform and dependent on the unique Australian legal, social and political context.
The following two chapters will explore the Australian statutory reform options in detail.
177
Ibid.
178
Ibid, vol 3, 2565 [74.117]-[74.118].
P a g e | 39
3. PREVIOUS ATTEMPTS AT REFORM
The pattern is familiar. Private lives are made public spectacle by the tabloids. A general
sense of unease ensues. Politicians appear to fret. Judges lament the incapacity of the
common law to help. Committees are established. ‘Privacy’ legislation is proposed. Alarms
are sounded by the quality press about the onslaught against freedom of speech. Inertia
settles on politicians, reluctant to offend newspaper editors. The debate subsides until the
next series of sensationalist disclosures.179
The call for privacy reform in Australia is well established. Both the ALRC and NSWLRC
recently recommended the overhaul of the privacy law framework and the creation of a
statutory cause of action for invasions of privacy. The Victorian Law Reform Commission
also recommended privacy reform; however it proposed two narrow causes of action;180 one
related to misuse of private information181 and the other related to intrusion upon seclusion.182
This paper focuses on the federal and NSW proposals.
In 2008 and 2009, the ALRC and NSWLRC worked together with the common aim of
creating a statutory cause of action for invasions of privacy, to be introduced under a uniform
legislative framework. The NSWLRC took primary responsibility of formulating the
proposals.183 Nonetheless, there are some differences in approach between the federal and
179
180
Victorian Law Reform Commission, Surveillance in Public Places, Report No 18 (2010) 149
[Recommendation 22].
181
Ibid, 150 [Recommendation 23].
182
Ibid, 151 [Recommendation 24].
183
Australian Law Reform Commission, Review of Australian Privacy Law, Discussion Paper 72 (2007) 26-28,
[Proposals 5-1 – 5-7].
P a g e | 40
State Commissions, and these are illustrated in Appendix Table 3: ‘Comparison of
Recommendations for a Statutory Cause of Action in Australia’.184 Ultimately, both
recommended change to Australian privacy law in the form of a statutory cause of action for
invasion of privacy. This chapter examines, compares and evaluates these
recommendations185 in light of recent developments.
3.1. The Australian Law Reform Commission Report
The ALRC’s 2008 Report, For Your Information: Australian Privacy Law and Practice, was,
amongst numerous other aims,186 designed to create a statutory cause of action for serious
invasions of privacy. Chapter 74 of the Report contains 7 recommendations related to the
statutory cause of action.187
The ALRC recommended that the cause of action be contained in a separate federal statute.188
This aimed to reduce inconsistencies and confusion, particularly surrounding the Privacy Act
1988 (Cth) which already deals with information privacy. The ALRC recommended that all
other common law actions for invasion of privacy (if any) be abolished, in order to ensure the
consistency and primacy of the legislation.189 A new statute would also result in national
uniformity, as the statute would cover federal, state and territory jurisdictions. However, the
ALRC noted that it would be a matter for government to decide how best to achieve
consistency if the states and territories enacted mirror legislation.190
184
See page 86.
185
The proposals of the VLRC are not dealt with in detail in this paper.
186
There were 295 recommendations in the Report. For example, the ALRC sought to redraft the Privacy Act in
order to create Unified Privacy Principles that apply to public and private sector agencies.
187
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2535-2586.
188
Ibid, vol 3, 2583 [74.195].
189
Ibid, vol 3, 2586 [Recommendation 74-6].
190
Ibid, vol 3, 2582 [74.191].
P a g e | 41
The ALRC took a conservative approach to the cause of action. The cause of action relates to
serious invasions of privacy,191 thereby importing a higher threshold for actionability than the
NSWLRC, which recommended a cause of action for invasions of privacy without the need
for the invasion to be serious.192 This was consciously intended by the ALRC to ensure that
privacy’s concomitant, the public interest in freedom of expression, was not unjustifiably
curtailed.193 The ALRC also recommended that the requisite mental element be limited to
intentional or reckless acts by the respondent.194 This means that accidental invasions are not
actionable under the statute, for example through photography or street art.195
The test to establish a serious invasion of privacy requires both a reasonable expectation of
privacy in all the circumstances, and the act must be ‘highly offensive to a reasonable person
of ordinary sensibilities’.196 Consent is also an essential element of the cause of action at this
stage of the inquiry.197 Notably, privacy is not defined by the ALRC.
The ALRC specified that the court take into account ‘whether the public interest in
maintaining the claimant’s privacy outweighs other matters of public interest’,198 including
matters of public concern and freedom of expression, when determining whether there has
been an invasion of privacy. This reflects the need to balance the public interest in
maintaining the claimant’s privacy with the public interest in freedom of expression, which is
a delicate process. By placing consideration of public interest at the forefront as an element
of the cause of action, and not as a defence to the action, the ALRC places the competing
191
Cf New South Wales Law Reform Commission, which recommended an action for invasion of privacy
without the need for a degree of seriousness: New South Wales Law Reform Commission, Report No 120,
above n 2, 8 [3.2].
192
See page 42 under the heading: 3.2 ‘New South Wales Law Reform Commission Report’.
193
194
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2585 [Recommendation 74-3(c)].
195
Ibid, vol 3, 2569 [74.136]. See also SBS, ‘Privacy’, Insight Program, 25 October 2011 (Cherine Fahd).
196
Ibid, vol 3, 2568 [74.133]-[74.135]; Australian Broadcasting Corporation v Lenah Game Meats (2001) 208
CLR 199 at [42] (Gleeson CJ).
197
198
P a g e | 42
rights on equal footing.199 This contrasts with the Canadian approach, which identifies
reasonable news gathering200 and the public interest and fair comment201 as defences to the
cause of action.
The ALRC recommended including a non-exhaustive list of the types of invasion that might
fall within the cause of action. These comprise of factual scenarios in which there has been
a) interference with home or family life; b) unauthorised surveillance; c) interference, misuse
or disclosure of an individual’s correspondence; and d) disclosure of sensitive facts about an
individual’s private life.202 This is a useful method to indicate legislative intention, and
assists courts with developing the scope of the action.203 This mirrors the Canadian statutory
approach, which also provides a non-exhaustive list of examples.204
The ALRC recommended that the cause of action be brought only by natural persons, 205 on
the basis that the ‘desire to protect privacy is founded on notions of individual autonomy,
freedom and dignity’,206 which are values that do not extend after death.
The ALRC recommended providing an exhaustive list of the possible defences to the action.
The list contains three main defences: acts or conduct incidental to the exercise of a lawful
right of defence or person or property, conduct required or authorised by law, and the
publicised information was privileged under the law of defamation.207 The ALRC took a
restrictive approach to defences, choosing not to include defences such as consent, rebutting
199
Ibid, vol 3, 2572 [74.147].
200
Privacy Act 1978 RSS (Saskatchewan) c P-24 s4(1)(e).
201
Privacy Act 1978 RSS (Saskatchewan) c P-24 s4(2); Privacy Act 1987 CCSM (Manitoba) s5(f)(i), (iii);
Privacy Act 1990 RSNL (Newfoundland and Labrador) s5(2)(a); Privacy Act 1996 RSBC (British Columbia)
s2(3)(a).
202
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2584 [Recommendation 74-1].
203
Ibid, vol 3, 2565 [74.119].
204
Privacy Act 1978 RSS (Saskatchewan) c P-24 s3; Privacy Act 1987 CCSM (Manitoba) s3; Privacy Act 1990
RSNL (Newfoundland and Labrador) s4.
205
Australian Law Reform Commission, Report No 108, above n 6, vol 3, 2585 [Recommendation 74-3(a)].
206
Ibid, vol 3, 2576 [74.160].
207
P a g e | 43
an untruth or information already being in the public domain. The defences are unnecessary
because the public interest and consent are both addressed in the elements of the cause of
action.208
The ALRC recommended that a Court be empowered to choose the most appropriate remedy
to the factual circumstances before it, free from jurisdictional constraints.209 The proposed
legislation provides a non-exhaustive list of remedies. These include, but are not limited to,
damages (including aggravated but not exemplary damages), account of profits, injunctions,
apology orders, correction orders, destruction orders, and declarations (for example a
declaration stating that an invasion of privacy has occurred).210 The ALRC further
recommended that the cause of action be actionable without proof of damage.211 This enables
individuals to claim damages for humiliation, insult212 and emotional distress they have
suffered as a result of invasion of their privacy.213
Finally, the ALRC recommended that the Office of the Privacy Commissioner provide
information to the public concerning the cause of action,214 so that the public may be
informed of their rights and responsibilities under the statute.
3.2. The New South Wales Law Reform Commission Report

208
Ibid, vol 3, 2578 [74.174].
209
Ibid, vol 3, 2579 [74.176].
210
211
Ibid, vol 3, 2585 [Recommendation 74-3(b)].
212
Ibid, vol 3, 2577 [74.167].
213
See also Privacy Act 1978 RSS (Saskatchewan) c P-24 s2; Privacy Act 1987 CCSM (Manitoba) s2(2);
Privacy Act 1990 RSNL (Newfoundland and Labrador) s3(1); Privacy Act 1996 RSBC (British Columbia) s1(1),
which provide the statutory tort is actionable without proof of damage.
214
P a g e | 44
In 2009, the NSWLRC released its Report, Invasion of Privacy. The Report was solely
dedicated to formulating a cause of action for invasions of privacy, unlike the ALRC Report
which made 288 recommendations that were unrelated to the cause of action. The appendix
to the NSWLRC Report contained a draft of the wording of the proposed legislation, called
the Civil Liability Amendment (Privacy) Bill 2009,215 expressed as a Schedule to the Civil
Liability Act 2002 (NSW). This differs to the ALRC’s proposal, which recommended a
separate statute.
Significantly, the NSWLRC recommended an objects clause. The ALRC did not. The clause
recognises the importance of protecting privacy and the need to balance the right against
other interests. The clause also identifies the aims of the legislation, which are to create a
statutory cause of action and to provide remedies to individuals for invasions of privacy.216
The objects clause therefore provides clear legislative intent. This is essential given that the
cause of action is a new concept, and Courts may require assistance with interpreting and
applying the statute.
The NSWLRC expressed support for a lower threshold than the ALRC to establish a prima
facie case for a statutory cause of action. The action simply requires an invasion of privacy,
therefore not restricting liability to serious invasions.217 This is a favourable approach given
the:
[A]bsence of any broad protection of privacy in civil law; the detrimental effects on privacy of an
increasingly invasive social environment; the desirability of giving effect to Australia’s
215
Civil Liability Amendment (Privacy) Bill 2009, cited in New South Wales Law Reform Commission, Report
No 120, above n 2, 84-92.
216
Civil Liability Amendment (Privacy) Bill 2009 s72, cited in New South Wales Law Reform Commission,
Report No 120, above n 2, 84.
217
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obligations under international law; the need for more general protection of privacy suggested by
consideration of the law of other jurisdictions… and the recent weakening of privacy protection in
defamation law.218
The test states that an individual’s privacy is invaded ‘if the conduct of another person
invaded the privacy that the individual was entitled to expect in all the circumstances having
regard to any relevant public interest,’219 which includes the interest of the public in being
informed of matters of public concern. This is a wider formulation than the ALRC’s qualified
test. However, its objective nature still restricts trivial and unduly sensitive220 claims from
being brought before the courts.221 Like the ALRC, the NSWLRC recommends that only
natural persons can bring actions under the statute,222 and that consent will vitiate
actionability.223
The issue of balancing the right to privacy with the public interest is dealt with as an element
of the action, similar to the ALRC’s approach. Fundamental social values and norms, such as
free speech, safety, security, health and justice, are weighed up against the asserted interest in
privacy in order to determine which is to be preferred in the circumstances.224 At the same
time, the NSWLRC acknowledges that those interests are not always at loggerheads. Indeed,
the values that underpin freedom of expression such as autonomy and liberty may also
underpin some privacy interests. Courts must therefore perform incisive and targeted
analysis with regard to the facts of the case.225 Importantly, competing interests are of equal
218
Ibid, 11 [4.1].
219
Civil Liability Amendment (Privacy) Bill 2009 s74(2), cited in New South Wales Law Reform Commission,
220
Campbell v MGN Ltd [2004] 2 AC 457 at [94] (Lord Hope).
221
222
Ibid, 71 [10.1].
223
Ibid, 46 [5.46]; and see Civil Liability Amendment (Privacy) Bill 2009 s74(4) at page 86 of the Report.
224
225
Ibid, 21 [4.15].
P a g e | 46
weight, with no interest necessarily trumping another one. The Courts must therefore engage
in exercises of proportionality.226
Like the ALRC, the NSWLRC did not attempt to define privacy, instead opting for a statutory
cause of action which identifies the ‘general conditions in which an invasion of privacy is
actionable’.227 However, the NSWLRC does not list the types of invasion of privacy which
might come under the statute,228 instead leaving this entirely up to the courts. Despite this,
the court is guided through eight matters which must be taken into account in determining
actionability: the nature of the subject matter; nature of the invasion; the relationship between
the parties; whether the claimant has a public profile and whether it affects actionability;
vulnerability; conduct before and after the invasion; the effect of the invasion on health,
welfare and emotional wellbeing; whether the conduct contravenes an Australian law; and
any other matter that the court considers relevant in the circumstances.229 This facilitates
flexibility in the common law interpretation of the statute, and ensures that each case turns
upon its own merits.
The NSWLRC’s proposal neither specified the requisite mental element for the action, nor
specified the proof of damage required. The ALRC’s proposal was clear on these points. The
NSWLRC argued that specification was not required because the cause of action is statutory
and not tortious.230 The same reasoning applies to the NSWLRC’s remedies
recommendation, proposing the term ‘compensation’ instead of damages because it reflects a
more statutory approach.231
226
Ibid, 33 [5.17].
227
Ibid, 6 [1.8].
228
However the initial Consultation Paper did recommend providing a non-exhaustive list of the types of
invasions of privacy, similar to the ALRC.
229
New South Wales Law Reform Commission, Report No 120, above n 2, 34-46; and see Civil Liability
Amendment (Privacy) Bill 2009 s74(3) at pages 85-86 of the Report.
230
New South Wales Law Reform Commission, Report No 120, above n 2, 50-51 [5.56]-[5.57].
231
Ibid, 49 [5.54].
P a g e | 47
The NSWLRC recommended very similar defences to the ALRC, but added two more.
Clause 75(1)(d) of the proposed legislation provides a defence where the defendant publishes
the matter as an agent or employee of a subordinate distributor, and the defendant ought not
to have known (but not through any negligence) that publication of that matter constituted an
invasion of privacy.232 Secondly, it is a defence under clause 75(1)(e) of the legislation that
the defendant had a corresponding duty to give and have the published information.233 This
defence mirrors the qualified privilege defence in defamation law and would cover the
situation where, for example, a defendant publishes, to a prospective employer, personal
information about the plaintiff, in a reference, that is relevant to the job.234 The NSWLRC
therefore takes a less restrictive approach to excusing actionability under the statute and
places more focus on defamation defences than the ALRC.
Clause 76 of the NSWLRC draft legislation lists a range of remedies available to a Court to
grant in the event of an invasion of privacy under the statute. The Court is also given
discretion to consider any other relief that would be necessary in the circumstances,235 which
the NSWLRC identifies as possibly including asset preservation orders, search orders and
variation of contract.236 The remedies are largely parallel to the ALRC recommendations,237
although the NSWLRC prefers prohibitory orders over injunctions, because of the statutory
nature of the cause of action.238 There is also a significant monetary restriction under the
232
Civil Liability Amendment (Privacy) Bill 2009 s75(1)(d); in New South Wales Law Reform Commission,
Report No 120, above n 2, 86-87.
233
Civil Liability Amendment (Privacy) Bill 2009 s75(1)(e); in New South Wales Law Reform Commission,
234
New South Wales Law Reform Commission, Report No 120, above n 2, 55-56 [6.12].
235
Civil Liability Amendment (Privacy) Bill 2009 s76(1)(e); in New South Wales Law Reform Commission,
236
237
Civil Liability Amendment (Privacy) Bill 2009 s76; in New South Wales Law Reform Commission, Report
No 120, above n 2, 87-88.
238
P a g e | 48
NSWLRC Report which is absent in the ALRC’s proposal. The NSWLRC recommends a
$150,000 cap on compensation for non-economic loss.239
While the ALRC is silent on the limitation period for the action, the NSWLRC’s proposal
specifies a one year limitation period, accruing from the date of the defendant’s conduct.240
The period may be extended for up to three years if reasonable in the circumstances.241
Unlike the ALRC, the NSWLRC does not recommend an education campaign.
3.3. The Australian Government’s Response
The Australian Government has only embarked upon Stage One of its response to the changes
proposed by the ALRC, addressing 197 of the 295 recommendations made in the ALRC’s
Report.242 However, Stage One did not include the recommendations surrounding the
statutory cause of action that are under consideration in this paper. The Government decided
to postpone addressing those particular recommendations until the Second Stage Response
due to the ‘complexity and sensitivity’243 of the proposals to particular interest groups in
Australian society. This is also so that the foundations of privacy reform could be laid down
first.
239
Civil Liability Amendment (Privacy) Bill 2009 s77; in New South Wales Law Reform Commission, Report
No 120, above n 2, 88; and see New South Wales Law Reform Commission, Report No 120, above n 2, 61-62
[7.13].
240
Amendment of Limitation Act 1969 (Cth) s14C; in New South Wales Law Reform Commission, Report No
120, above n 2, 91.
241
Amendment of Limitation Act 1969 (Cth) s56E; in New South Wales Law Reform Commission, Report No
120, above n 2, 91.
242
Commonwealth, Australian Government First Stage Response to the Australian Law Reform Commission
Report 108 For Your Information: Australian Privacy Law and Practice, Cabinet, October 2009, 5 (Joe
Ludwig).
243
Ibid, 14.
P a g e | 49
Despite this delay, an Issues Paper released in September 2011 has called for submissions and
comments from the Australian public244 on the elements, defences and remedies of the
proposed cause of action.245 This provides renewed support for the statutory cause of action
to be enacted in Stage Two of the Government Response.
244
The author has submitted this dissertation for consideration by the Department of Prime Minister and Cabinet,
following the release of the Issues Paper.
245
Commonwealth, above n 43, 51.
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4. REFORM PROPOSALS: THE INVASION OF PRIVACY ACT
2011 (CTH)
It is most surprising that the Australian courts have yet to develop common law or equitable
principles for breach of privacy in Australia. Australia is becoming increasingly out of step
with other common law jurisdictions in this regard. It may well be that the courts would be
amenable to such a development, should the right case come before them. In the absence of
common law or equitable protection, there is good justification for the development of
legislation to fill the void.246
Disappointingly, progress in the privacy law area tends to fall idle to media pressure and
political inertia. This is due in part to the eagerness of politicians247 to continue good
relations with the papers that portray them so as to avoid the enmity of the two main players
in the Australian press – Fairfax and Murdoch. This is particularly pertinent because the
Murdoch press controls 68% of capital city and national newsprint in Australia.248 In 2011,
Australia faces new challenges. Potential phone-hacking and the explosion of social network
use in Australia now threaten the value of privacy further. This has led to a gap in the
246
Centre for Law and Genetics, PR 127 to Australian Law Reform Commission, For Your Information:
Australian Privacy Law and Practice, 16 January 2001.
247
There are many sex scandals involving politicians that are featured heavily in the media, for example NSW
Transport Minister David Campbell using his ministerial car to visit gay sex clubs while he was married with
children [see McDonald, Timothy, ‘Campbell sex scandal sparks privacy debate’, ABC News (online), 22 May
2010 <http://www.abc.net.au/news/2010-05-21/campbell-sex-scandal-sparks-privacy-debate/836580>]. Another
example which occurred this year is Federal Member for Labor, Craig Thompson, who has been accused of
using a union credit card to pay for prostitutes [see Steve Lewis et al, ‘Craig Thompson scandal deepens with
allegations of a $70,000 spending spree on a union credit card’, Daily Telegraph (online), 22 August 2011
<http://www.dailytelegraph.com.au/news/craig-thomson-scandal-deepends-with-allegations-of-a-70000-
spending-spree-on-a-union-credit-card/story-e6freuy9-1226119221232>].
248
Kim Jackson, Media Ownership Regulation in Australia, (19 October 2011) Parliamentary Library
<http://www.aph.gov.au/library/intguide/sp/media_regulations.htm>.
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literature. While the previous Law Reform Commission Reports form the academic literature
upon which this paper is based and canvass the steps to be taken to formulate the cause of
action, the emerging threats and developments in contemporary Australian society require
further analysis and review in order to adapt the cause of action to the climate in 2011 and
beyond.
Reform to the privacy area requires a back to basics approach.249 This involves creating a
new cause of action from the ground up, without recourse to the existing plethora of laws that
might incidentally protect privacy or those which could be extended to cover privacy in a
limited way.
4.1. New Federal Statute
As discussed in Chapter Two, common law and equitable solutions are not appropriate ways
to tackle the issue of privacy in Australia. This paper strongly recommends creating new
federal legislation. A new statute would reduce public confusion and would avoid the
incidental and patchy protection currently provided by a range of laws and forms of law, as
exemplified in Appendix Table 1. A name such as the Invasion of Privacy Act 2011 (Cth)250
would communicate the legislation’s purpose effectively, and would also differentiate it from
the Privacy Act 1988 (Cth).
4.2. Objects Clause
249
250
The author acknowledges that an Invasion of Privacy Act 1971 (Qld) is still in force in the State of
Queensland.
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Australian privacy laws currently lack coherence, consistency and an overarching rationale.
A core rationale that sets out the reasons why the legislation is in force and how it will
achieve those goals should therefore be included in the objects clause of the proposed
legislation. ‘This involves a consideration of the justification for the right to privacy and
what we as a community seek to achieve by giving legal recognition and protection to such a
right’.251
The core rationale of the legislation proposed in this paper is to protect the privacy of
individuals, and recognise that privacy protection is important in modern society. Doyle and
Bagaric suggest that privacy protection creates a supportive context for the development of
individual autonomy, which plays an essential role in the pursuit of happiness.252 The authors
argue that individuals ought to be protected where decisions are made on the basis of
information about them without any opportunity to comment or respond to the information.253
They also argue that individuals should be able to enjoy situations of solitude and control the
circumstances in which they are observed. For example, these instances would include
privacy inside the home, and particularly when showering, going to the toilet, and engaging
in sex.254 This paper supports the value of individual autonomy as a core rationale for the
protection of privacy. The need for privacy to be weighed against the public interest should
also be identified in the objects clause. 255
The objects clause should also explain how it will achieve individual autonomy and a balance
between the right to privacy and the public interest. The clause should clearly state that the
legislation intends to create a statutory cause of action for invasion of privacy and provide
251
252
Ibid, 179.
253
Ibid.
254
Ibid, 180.
255
Civil Liability Amendment (Privacy) Bill 2009 s72; cited in New South Wales Law Reform Commission,
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remedies to individuals whose privacy has been invaded.256 The clause should also explain
that the legislation intends to educate the public on their rights, responsibilities and liabilities
that are created under the statute, and inform the public of how to protect their own private
information and conduct. The education campaign is an important feature of the proposed
legislation. Furthermore, the objects clause should make it clear that the Act is to be enacted
uniformly throughout the states and territories.
By clearly stating the objectives and aims of the new legislation, the Courts and the
Australian public should be adequately informed about their rights and liabilities, which will
facilitate and enhance the effectiveness of the new framework.
RECOMMENDATION 1: OBJECTS CLAUSE
1 Object of Act
4.3.
The objects of this Act are:
(a) To create national uniform legislation;

(b) To recognise that it is important to protect privacy in order to protect individual
autonomy and the right to the pursuit of happiness;
(c) To recognise that it is important to balance privacy against other interests,
including public interest, in appropriate circumstances;
(d) To create a statutory cause of action for the invasion of an individual’s privacy;
(e) To provide a number of different remedies to enable a court to redress any such
invasion of privacy; and
(f) To educate the public on their rights, responsibilities and liabilities under this
legislation and to inform the public on how they can protect their privacy and
prevent invasions of privacy.
Definition
This paper acknowledges the difficulties involved in arriving at a satisfactory definition of
privacy.257 Fluidity and adaptability should be essential features of the proposed legislation,
256
This is in line with the NSWLRC recommendations. See Civil Liability Amendment (Privacy) Bill 2009
s72(b), (c); cited in New South Wales Law Reform Commission, Report No 120, above n 2, 84.
257
See page 7 of this paper under the heading: 1.1. ‘Definitional Difficulties’.
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rather than searching for a fixed definition.
It is a ‘perennial fallacy that because something cannot be cut and dried or lightly weighed or
measured therefore it does not exist.’258 The concept of privacy is value-laden and
complex.259 The definition is culturally and historically relative,260 and must be adaptable to
modern developments and the value which privacy is given at the time. . Wacks argues that
‘[i]nstead of pursuing the false god of “privacy”, attention should be paid to identifying what
specific interests of the individual we think the law ought to protect’.261 Similarly, Doyle and
Bagaric believe that ‘[t]o define a term or concept is to set out the necessary and sufficient
conditions which demarcate the correct usage of the term or concept’.262 ‘Bearing in mind the
impossibility of arriving at a satisfactory definition’,263 and the ‘danger of gaps in privacy
protection’264 resulting from a fixed definition, the meaning of privacy under the proposed
legislation should be canvassed in a way which lists the types of invasions of privacy and the
conditions which require protection in the circumstances. This allows the judiciary to
develop the concept over time and take into account ‘the need of individuals for privacy in an
evolving technological environment’.265
In line with the ALRC and NSWLRC recommendations, this paper proposes that there be no
definition per sé.266 Rather, there should be a workable classification of the types of
invasions of privacy that would be protected by the statute. This is similar to the ALRC’s
proposal.267
258
Ridge v Baldwin [1964] AC 40.
259
Lindsay, above n 21, 8.
260
Ibid.
261
262
Carolyn Doyle and Mirko Bagaric, ‘The Right to Privacy and Corporations’ (2003) 31 Australian Business
Law Review 237, 238.
263
New South Wales Law Reform Commission, Report No. 120, above n 2, 3 [1.1].
264
[2.87].
265
Australian Law Reform Commission, Report No 108, above n 6, 19 [1(f)].
266
See Australian Law Reform Commission, Report No 108 above n 6, vol 3, Chapter 74; and New South Wales
Law Reform Commission, Report No 120, above n 2, 21 [4.16].
267
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In addition, and as will be discussed in further detail later in this chapter,268 there should be
explicit reference to the ability for family members to take action for invasion of privacy of
their deceased relatives. This refers directly to the News of the World scandal where murder
victims’ voicemails were allegedly intercepted, which caused significant distress to family
members. Reference should also be made to invasions of privacy occurring online such as on
social networking sites, or through websites and email, in order to tackle the various online
privacy issues discussed in Chapter One. The other examples proposed in Recommendation
2 follow those of the ALRC. In addition, a catch-all provision ensures that other situations of
privacy invasion are not limited to the factual matrix contained in the section.
RECOMMENDATION 2: NON EXHAUSTIVE LIST OF TYPES OF PRIVACY INVASION
2 Types of Privacy Invasion under this Act
An invasion of privacy may occur in (but is not limited to) the following circumstances:
(a) Where there has been an interference with an individual’s home or family life, which
includes the situation where a deceased family member’s privacy has been invaded and
this causes distress or harm to the living relatives which the court deems to be an
invasion of privacy under the Act; or
(b) An individual has been subjected to unauthorised surveillance; or
(c) An individual’s correspondence or private written, oral or electronic communication

has been interfered with, misused or disclosed without the permission of such individual;
or
(d) Sensitive facts relating to an individual’s private life have been disclosed; or
(e) An individual’s activity online, which includes but is not limited to social networking
sites, is interfered with, misused or disclosed without the individual’s consent;
(f) Under any other circumstances which the court determines is an invasion of privacy.
268
See page 54 under the heading: 4.3. ‘Entitlement’.
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4.4. Entitlement
Who is entitled to bring an action under the statute is important, particularly in light of the
News of the World phone-hacking scandal. The proposed legislation therefore takes a slightly
different approach to the recommendations of the ALRC269 and NSWLRC in this regard.
This paper acknowledges that generally, deceased individuals have no privacy interests.270
This paper agrees with the recommendation that natural persons are entitled to bring the
action, however extends this concept to where natural persons are directly affected by
invasion of a deceased individual’s privacy, and that the action also invades the privacy of the
natural person bringing the action, particularly in instances where there is a prior relationship,
whether familial or fiduciary, between the deceased and the individual seeking relief for
invasion of privacy.
Recommendation 2(a) therefore specifically states that relational actions are within the ambit
of privacy invasions envisaged by the statute. By extending the concept of home or family-
life privacy invasions to include invasions relating to deceased individuals,271 the statute
responds directly to the fear created by News of the World’s alleged phone-hacking of 9/11
victims and murder victims. Family members in similar situations should be able to seek
remedies and redress for the distress they suffered from media phone-hacking or any other
kind of invasion, as long as the invasion of privacy satisfies the elements of the cause of
action and is not subject to any defences or other limitations.
4.5. General Cause of Action
269
However the ALRC recommended that personal information relating to deceased individuals should be
protected for up to thirty years following death, in order to prevent mishandling of information after death, to
allow living relatives to access appropriate information and to prevent distress to the families: Australian Law
Reform Commission, above n 6, vol 1, 367 [8.44].
270
Paul Roth, ‘Privacy Proceedings and the Dead’ (2004) 11 Privacy Law and Policy Reporter 50.
271
In any respect, such an invasion would likely be captured under the provision in s2(a) contained in
Recommendation 2 above in regards to interference with home or family life, and would still need to meet the
threshold requirements of the cause of action.
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4.5.1. Threshold
The cause of action under the new legislation should be general and statutory. It should not
be a tort, because tortious actions ‘do not generally require the courts to engage in an overt
balancing of relevant interests’,272 which would be required in the case of privacy invasions.
The cause of action should relate to invasions of privacy, which is in line with the NSWLRC
recommendation. The higher threshold test suggested by the ALRC, which requires the
conduct to be of sufficient seriousness and ‘highly offensive to a reasonable person of
ordinary sensibilities’273 is too high a bar for claimants to meet. This would undermine the
effect of the legislation in protecting privacy. Many claimants would be precluded from
taking action for invasions of their privacy, if they had a reasonable expectation of privacy
but it was not considered by the court as objectively serious or highly offensive enough to
warrant liability.274 For example, where an intimate conversation between husband and wife
following their involvement in a car accident involving drink-driving is filmed and broadcast
on television, they would have a reasonable expectation of privacy in those traumatic
circumstances. However, the conversation is not likely to be objectively serious or highly
offensive to the reasonable person.275 A high threshold of seriousness therefore does not give
adequate protection to individuals’ right to privacy.
272
273
274
See, eg, Andrews v TVNZ (Unreported, High Court of New Zealand, Allan J, 15 December 2006), where a
husband and wife took action against Television New Zealand for broadcasting an intimate conversation
between them following a motor accident. The claimants met the reasonable expectation of privacy
requirement, but failed to prove that the publication of the conversation was highly offensive to the reasonable
person of ordinary sensibilities.
275
This example is based on the facts of Andrews v TVNZ (Unreported, High Court of New Zealand, Allan J, 15
December 2006).
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Instead, as is made clear below, the test should balance the privacy interest against the other
interests in question on the particular facts of the case, and take into account a range of
factors to assist the court in making a determination.
4.5.2. Test
The test for the statutory cause of action should be flexible, adaptable, reasonably accessible
to individuals, and fair to other competing interests, which is likely to include the interest of
Australian media organisations in delivering news. Most importantly, the test should be
applied by the courts through an intense focus on the facts,276 and should assist in developing
social norms and expectations of privacy in modern society.277
The public interest and freedom of speech issue is a difficult one to reconcile statutorily. A
traditional view is that there will ‘always be a clash of rights, which must be resolved either
in favour of the privacy right or of the right to freedom of speech’.278 Privacy is deemed to be
the arch-nemesis to public interest, the right to know and freedom of expression. Law reform
submissions, primarily from media organisations, urged the freedom of speech right to be a
concomitant279 to the right to privacy, given that Australia does not have a constitutional or
statutory right to freedom of speech or freedom of the press, even though Australian
Constitutional law already implies a right to freedom of political communication.280 There is
currently limited protection for privacy under Australian law. The way that privacy and
276
Re S (a child) [2005] 1 AC 593 at [17] (Lord Steyn).
277
278
Eric Barendt, ‘Privacy and freedom of speech’ in Andrew T Kenyon and Megan Richardson (eds), New
Dimensions in Privacy Law: International and Comparative Perspectives (Cambridge University Press, 2006)
11.
279
Australian Press Council, Submission PR 411 to Australian Law Reform Commission, For Your Information:
Australian Privacy Law and Practice, 7 December 2007.
280
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
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freedom of expression should interact is therefore left uncertain under the current legal
framework.
The notion of privacy, and its conceptual rivalry with freedom of expression, does not occur
in a vacuum. Society’s attitudes towards the correct balance will change according to
expectations281 relating to technology, artistic tastes, the commercial environment and
demographic changes. The key to a contextual and workable test is therefore adaptability and
proportionality. Courts should be able to apply a sophisticated balancing test to the specific
facts of the case. The proposed legislation should therefore be specific about how to balance
these competing rights.
Interestingly, Barendt argues that in limited cases, the two rights will not be in conflict. He
cites a pertinent example. The right to privacy and the right to free speech would both be
violated if there was interception of electronic or social communications between individuals
or a small group on the internet.282 However, this creates complexity for reform. For
example, if a claimant’s Facebook profile is set to private, but a Facebook friend of the
claimant publishes the information contained in the claimant’s status, should that information
be protected as private information? The explosion of social media has posed difficult
questions relating to defining the realm of what is private and what is public.
Furthermore, the blurring and shifting of the line between public and private life necessitates
a flexible approach. There is no expectation of privacy in public places generally, such as
public transport, shopping centres, bars and restaurants. However, cultural norms exist which
require privacy in public toilets, change rooms and hotel rooms, despite the ‘absence of a
right to exclusive possession or control of [the] immediate surroundings’.283 On the one hand,
if a line is not drawn between the public and private spheres of life, then ‘there will be
281
Australian Law Reform Commission, For Your Information, Report No 108 (2008) vol 3, 2572 [74.146].
282
Barendt, above n 278, 12-16.
283
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virtually no aspect of [a person’s] life which cannot be characterised as private’.284 On the
other hand, regard should be given to the degree of privacy reasonably expected in the
circumstances of the particular case.285 A cause of action should not draw such a line in
advance.
The legislation should assist Courts in reshaping those norms in order to reflect the current
challenges to individual privacy, particularly in the face of sly media behaviour and the
exponential increase of information flow on the internet.
As a result, the test recommended in this paper combines some elements of the ALRC and
NSWLRC recommendations. As drafted in Recommendation 3 below, the test combines a
subjective and objective element. The test requires the individual to have a reasonable
expectation of privacy in the circumstances, but that privacy interest is considered in light of,
and on balance with the relevant public interests, which are presumed to start from an equal
footing. This paper initially considered placing the public interest consideration as a defence
instead of an element of the test, which is the approach used in Canada.286 However, the
former option fails to recognise the value of open justice, accountability and free speech.
However, there should be a clear demarcation between public interest and public curiosity. A
fair balancing process would ensure that interest groups on either side of the fence could have
their say. The test also explicitly provides that the cause of action is actionable without proof
of damage, which is important in the privacy context given that most actions will involve
emotional and/or mental distress, as opposed to economic loss or physical damage.
4.5.3. Mental Element

284
Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, [14].
285
286
Privacy Act 1978 RSS (Saskatchewan) c P-24; Privacy Act 1987 CCSM (Manitoba); Privacy Act 1990 RSNL
(Newfoundland and Labrador); Privacy Act 1996 RSBC (British Columbia).
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This paper recommends not specifying the mental element. While the ALRC recommended
that the cause of action only apply to intentional and reckless acts, the NSWLRC did not find
it necessary to lay down an absolute rule,287 as the cause of action is not a tort and does not
import a requirement for a particular mental element. By leaving mental element out of the
equation, courts should still be able to effectively determine liability by applying the
threshold test to the particular facts at hand. This way, accidental invasions of privacy may
still be actionable under the statute, if they occur in the appropriate circumstances.
RECOMMENDATION 3: TEST FOR STATUTORY CAUSE OF ACTION
3 Invasion of Privacy Actionable
(1) An individual (the claimant) has a cause of action against a person under this Act
if that person’s conduct invades the individual’s privacy.
(2) An individual’s privacy is invaded for the purpose of this Act if:
(a) the conduct of another person invaded the privacy that the individual was
reasonably entitled to expect in all of the circumstances, and
(b) the individual’s privacy interest, when considered on balance, outweighs any
relevant public interest in the circumstances of the case.
(3) To avoid doubt, privacy interests and public interests are to be considered from an
equal standing point.
(4) Invasion of privacy under this Act is actionable without proof of damage.
4.5.4. Factors to be Taken into Account
287
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This paper recommends providing statutory guidance to courts, in order to assist them in
determining actionability and balancing the privacy interest with other competing interests.
In this way, this paper largely supports the approach of the NSWLRC. By directing the
attention of the court to matters such as the nature of the private act or information, nature of
the invasion, relationship between the parties and other relevant matters, the court is
encouraged to decide each case on the specific facts presented to them. Importantly, courts
are given wide discretion under the catch-all provision to consider any other relevant matter,
which further facilitates fact-specific decisions and development of comprehensive common
law interpretations.
RECOMMENDATION 4: FACTORS TO BE TAKEN INTO ACCOUNT
4 Factors to be Taken into Account
Without limiting the factors that a Court may take into account in determining whether
an invasion of privacy has occurred under section 3, the Court may take into account the
following factors:
(1) The nature of the alleged private matter;

(2) The nature of the conduct concerned;
(3) The relationship between the claimant and the alleged wrongdoer;
(4) The extent to which the claimant has a public profile;
(5) The extent to which the claimant was in a position of vulnerability;
(6) The conduct of the claimant and the alleged wrongdoer both before and after
the conduct concerned;
(7) Whether an apology has been made by the alleged wrongdoer or any other
attempt to make amends is made;
(8) The effect of the conduct on the health, welfare and emotional wellbeing of
the claimant and any other reasonably-affected individual;
(9) Whether the conduct concerned contravened a provision of an Australian
statute;
(10) Whether the conduct concerned was consented to, expressly or impliedly, by
the claimant but only to the extent of the consent given; and
(11) Any other matter that the Court thinks appropriate to take into account in the
circumstances.
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4.5.5. Consent
Consent becomes complicated when applied to social networking and online privacy
invasions. For example, person X posts a status update on their Facebook profile, which is
set to private, complaining about their employer. Person Y, who is a Facebook friend of X,
prints the status and gives it to X’s employer, E, who terminates X’s employment and tells
other employers of the Facebook status via the company Twitter account, warning others not
to hire X. When does liability end?
If an individual such as X consents to some information sharing within a certain circle of
friends, which include Y, and the information goes beyond what was consented to, and others
such as E continue to spread that information, are both Y and E liable? Social networks
theory suggests that even if a large group of people (e.g. X’s Facebook friends) know the
private information and one person causes that information to leap the boundary, this is still a
privacy violation.288 Y would be liable in this case.
288
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However, once information is on the internet, it would be very impractical to hold others
liable who simply spread the information. A line must be drawn, and this may mean that E
would not be liable in the above example. Notably, X is not precluded under the statute from
taking action against E, and X’s success would depend on the circumstances, particularly the
nature of the comment.289 X however would not be likely to satisfy the public interest
balancing test if he or she admitted to stealing money or equipment from the workplace,
where it would likely be in the public interest that the public, in particular other employers,
be informed of criminal behaviour. Nevertheless, this is where the education campaign will
assist. As discussed below, informing the public on the dangers of online information sharing
is an effective method in preventing these events from occurring.
Another problem with consent occurs in other situations such as newsgathering, where an
individual might consent to an interview with a particular media organisation. If the media
organisation goes beyond interviewing and begins trespassing, photographing and
surveillance operations on that individual, beyond the consent that was originally given, this
should be actionable under the statute, despite the original consent being given.
This paper recommends that consent be included as a factor to be taken into account in
determining actionability under the statute, under Recommendation 4(10) above, but only to
the extent that the consent, express or implied, was given to that particular conduct. Conduct
beyond this is potentially liable. Onus should be placed upon the claimant to disprove
consent.
289
Employment law may also assist in this example. See, eg, Fitzgerald v Smith t/a Escape Hair Design [2010]
FWA 735, where the employee was terminated due to a Facebook status she posted which related to her
Christmas bonus and holiday pay.
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4.5.6. Limitation Period
The limitation period should be fairly short so that individuals are encouraged to take prompt
action, but also subject to discretional extensions of time, so that leniency can be afforded in
appropriate circumstances. The limitation period put forward by the NSWLRC provides
guidance on this matter. This comprises a one year period from the date on which the
invasion of privacy occurred, plus a discretionary element which the court can use to extend
the period by up to three years.290 This is not satisfactory to claimants, as many invasions of
privacy may go unnoticed for a long period of time, and well after the damage is done. For
example, becoming aware of the sharing of personal information on the internet once it has
been spread,291 or phone-hacking by the media.
This proposal recommends that the date of accrual be the date that the claimant becomes
aware of the circumstances giving rise to the cause of action. This reflects the nature and
type of privacy invasions that may be actionable under the statute, many of which have long-
term consequences. The proposed wording would most likely be inserted into the Limitation
Act 1969 (Cth).
This paper acknowledges that the limitation period for protection of personal information of
deceased individuals under the current legislative framework varies across states, from five
years in the Northern Territory, thirty years in NSW and Victoria, and unlimited in the ACT.292
However, these limitation periods and associated laws that relate to personal information and
confidentiality of deceased individuals held by organisations should not be affected293 by the
limitation period for invasions of privacy under the proposed legislation in this paper.
290
Amendment of Limitation Act 1969 (Cth) ss14C, 56E; in New South Wales Law Reform Commission,
291
For example spreading intimate sexual details on an internet blog: see Solove, above n 7, 52.
292
293
Ibid, vol 1, 360 [8.18].
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RECOMMENDATION 5: LIMITATION PERIOD
Limitation Period: Invasion of Privacy
(1) An action on a cause of action under section 3 of the Invasion of Privacy Act 2011
(Cth) is not maintainable if brought after the period of one year from the date on
which the cause of action accrues.
(2) A cause of action accrues when the claimant becomes aware of the circumstances
giving rise to the cause of action.
(3) A claimant may apply to the Court for an order extending the limitation period for
the cause of action.
(4) The Court must, if satisfied that it was not reasonable for the claimant to have
commenced an action in relation to the matter complained of within one year from
the date that the cause of action first accrued, extend the limitation period
mentioned in sub-section (1) but only by a period of up to three years running
from that date.
4.6. Defences
This paper supports the recommendations of the ALRC and NSWLRC in relation to two
defences: the defence of lawful requirement and authorisation, and the defence of lawful
defence of person or property. Importantly, these defences allow governments to perform
statutory functions, and would not inhibit national security or law enforcement.294 This paper
however inserts the words ‘reasonably in the circumstances’ under both sub-sections so that
Courts may determine whether the defence is proved, having regard to the particular facts of
the case.
This paper disagrees with the ALRC and NSWLRC recommendations in relation to the
defamation defences and recommends a more restrictive approach to excusing liability. The
proposal put forward in this paper removes the need for the defamation defences to be spelt
out in the statute, given that such defences would already be covered under the lawful
requirement and authorisation provision.
294
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However, Courts will need to take particular care where parliamentary privilege applies. This
year Senator Nick Xenophon utilised his parliamentary privilege to accuse a Catholic
chaplain of allegedly raping a young man 45 years ago.295 Despite the legality of the
accusation under s49 of the Australian Constitution and the Parliamentary Privileges Act
1987 (Cth), parliamentary privilege has the potential to invade individuals’ privacy,
particularly where the accusation is spread by the media and the matter has not been dealt
with in the criminal justice system. Publicity also creates difficulties for empanelling jurors
who might have pre-conceived ideas about the accused person.296 However, unless
parliamentary privilege is abolished, the actions of parliamentarians are not likely to be
actionable under the statute.
RECOMMENDATION 6: DEFENCES
5 Defences
It is a defence to an action under this Act for the invasion of an individual’s privacy if the
defendant proves any of the following:
(1) That the conduct of the defendant was required, authorised or otherwise enabled
reasonably in the circumstances:
(a) By or under a State, Territory or Commonwealth law; or
(b) By an Australian court or tribunal or a process of such a court or tribunal.
(2) That the conduct of the defendant was done for the purpose of lawfully defending or
protecting a person or property reasonably in the circumstances, which includes the
prosecution or defending of civil or criminal proceedings.
4.7. Remedies
‘Remedies do not exist in isolation from the substantive rights and obligations to which they
give effect’.297 Regard must therefore be given to the nature of privacy cases and the impact
295
Phillip Coorey, ‘Xenophon overstepped the mark on parliamentary privilege’, Sydney Morning Herald
(online), 15 September 2011 <http://www.smh.com.au/opinion/politics/xenophon-overstepped-the-mark-on-
parliamentary-privilege-20110915-1kao0.html>.
296
ABC, ‘Xenophon speech puts parliamentary privilege in spotlight’, 7.30 Report, 29 September 2011
(Professor Greg Craven) < http://www.abc.net.au/news/2011-09-14/the-row-over-the-naming-of-an-alleged-
rapist/2899618>.
297
Tilbury, above n 159, 294.
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that invasions of privacy have on potential claimants. For example, interlocutory injunctive
relief will be an essential remedy for those whose privacy interests have been invaded,
because once privacy is lost, it is irretrievable. An injunction would restrain unlawful
conduct as well as provide relief which cannot be adequately addressed in final relief after the
conduct has occurred.298 An apology should also be an option in the legislation, as it can be a
powerful and effective remedy in certain circumstances.
In addition to those proposed by the ALRC and NSWLRC, this paper recommends that
correction orders should be explicitly listed as a remedy and should be proportionate to the
original publication. ‘[The correction] should be placed in the same place, in the same type
face and on the same page as the original story… If it was significant enough to command
splashing across the front page… then any apology should receive the same importance’.299
This remedy may assist claimants to restore their sense of individual autonomy and may go
some way to repair emotional distress and other damages caused by the publication.
This paper disagrees with the compensation cap recommended by the NSWLRC on actions
RECOMMENDATION
for emotional and mental distress alone. This paper 7: REMEDIES
proposes a compensation remedy without
6 Remedies
monetary restriction, particularly because privacy invasions, by their nature, will often result
In an action under this Act for the invasion of an individual’s privacy, the court may (subject
in emotional and mental distress. The appropriate level of compensation should be reached
to any jurisdictional limits of the court) grant any one or more of the following remedies,
bywhether
a Courton
onanitsinterim or final basis,
own discretion as the court
and analysis considers
according to theappropriate:
facts at hand and with regard to
social(1)andAn order
legal for the
norms paymentat of
operating thecompensation;
time.
(2) An order prohibiting the defendant from engaging in conduct (whether actual,
apprehended or threatened) that the court considers would invade the privacy of the
claimant;
(3) An order declaring that the defendant’s conduct has invaded the privacy of the
claimant;
(4) An order that the defendant deliver to the claimant any articles, documents or other
material, and all copies of them, concerning the claimant or belonging to the claimant
that:
(a) Are in the possession of the defendant or the defendant is able to retrieve; and
298
Tilbury, (b)
above n 159,
Were 294.
obtained or made as a result of the invasion of the claimant’s privacy or were
299
P Youngman, Submission PR 394 to Australian Law Reform Commission, For Your Information: Australian
Privacy Law and published
Practice, 7during the 2007.
December course of conduct giving rise to the invasion of privacy;
(5) An order that the defendant apologise to the claimant for the conduct;
(6) A correction order, which is proportionate to the original publication;
(7) Such other relief as the court thinks appropriate in the circumstances.
P a g e | 69
4.8. Education Campaign
Education should play an essential role in this reform. The ALRC recommended that the
Office of the Federal Privacy Commissioner should have a role in educating the public about
the recommended statutory cause of action.300 However, privacy education should pervade
the school system as well as in the wider community.
Personal information and photographs now find themselves uploaded within seconds and
immediately form part of the public domain via Facebook, MySpace and Twitter. Young
people in particular are unaware of the consequences of these actions and may find that their
‘private’ information is no longer private, which could have serious consequences in the
future.301 Widespread education campaigns should operate within the ideal that prevention is
better than a cure, particularly in relation to private information that is voluntarily, but
unknowingly, entered into the public arena via the online medium.
300
301
See Chapter One generally for discussion of the privacy issues that arise online.
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Rodrigues argues that social norms can often be more effective than legal rules at regulating
online behaviour.302 The power of individual reputation operates as a disincentive for people
to, for example, post derogatory comments on someone’s Facebook for fear of backlash from
the individual and/or his or her friends. An education programme, aimed at young people in
different stages of their development, should be integrated into school and university
curriculum in order to improve knowledge and wariness about the consequences of online
behaviour. However, it is not just online privacy norms that need to be changed. Society’s
acceptance of reality television shows such as Big Brother and Biggest Loser also indicate
that we are voyeurs of privacy intrusions as an acceptable norm, particularly for
entertainment. The legislation proposed in this paper should assist in shaping the ‘norms that
govern the circulation of information’,303 and the education campaign should facilitate the
creation of those norms from society’s expectations of privacy.304 If individuals are taught
from a young age about the importance of controlling self-exposure, particularly on the
internet, then the desired outcome is a society which values and respects privacy, which
should manifest itself in fewer actions under the Invasion of Privacy Act.
However, it is not only members of the public who need to change the way they behave.
Companies like Facebook should be at the forefront of privacy innovation, despite their
seminal role in information sharing. When a new user joins Facebook, the default settings
should be private.305 Currently they are not. This means that complacent users may not think
to change their settings to ‘private’ and might inadvertently be subjecting themselves to
invasions of privacy. Changes to Facebook services have created public concern about
privacy in the past.306 For example, in 2006 Facebook created News Feeds, which alert users
of recent activity by other Friends on their Home Page. In September 2011, Facebook
302
Rodrigues, above n 52, 238.
303
304
305
Solove, above n 7, 200-201.
306
P a g e | 71
announced the roll-out of the Timeline function, which provides users with a chronological
timeline of their status updates, employment, relationship status and photos.307 Creators of
technology and the media, should be at the forefront of responsible sharing of information.
Not only should the education campaign inform the public about the changes to the law, the
campaign should filter into the primary, secondary and tertiary education sectors as part of
online privacy and security awareness. Such an approach would enhance predictability in the
law – a fundamental tenet valued in most legal systems. The campaign should inform the
public, in particular young people, about the dangers of online behaviour and information
sharing via technology such as Facebook and mobile cameras. The campaign will also
inform the public of their right to privacy, and what they should do if their privacy is invaded.
RECOMMENDATION 8: EDUCATION CAMPAIGN
7 Education
The relevant government department shall create an education campaign relating to the
following:
(1) Informing the public of their rights, responsibilities and liabilities under this Act;
(2) Educating young people in the primary, secondary and tertiary education systems on
a range of issues relating to protecting private information and other private conduct,
particularly online and through other technologies; and
(3) Any other matter that is necessary to inform the public on the contents of this Act
and their implications.
4.9. A Familiar Inertia
Radical reform such as the proposed legislation in this paper will undoubtedly be opposed.
The legislation effectively creates a human right – the right to privacy – because individuals
can now take action where that right is interfered with. Groups in society whose interest is in
opposition to privacy interests, such as the Australian media, will be strongly advocating
307
Jill Duffy, 10 things you should know about Facebook Timeline (23 September 2011) PC Mag <http://www.
pcmag.com/article2/0,2817,2393464,00.asp#fbid=ZuMPxUB4XV5>.
P a g e | 72
against the legislation. In the past, the media have already argued that a statutory cause of
action would threaten freedom of expression and freedom of the press.308
This is the point where inertia often settles upon Australian politicians, and the privacy debate
subsides again. 309 However, the pendulum must swing from ‘supreme, total power’310
currently held by the media, back to equilibrium where the law respects both the right to
privacy and the right to freedom of expression. The legislation will therefore need to strike
the right balance in order to pass through the House of Representatives and Senate
successfully.
However, there is a risk that the legislation is challenged in the High Court by an interested
party such as the media. This paper would argue that the Government has the Constitutional
power to enact the legislation under the external affairs power,311 because the legislation
intends to implement some of Australia’s obligations under international treaties such as the
ICCPR, which states that individuals have the right to privacy312 and the right to freedom of
expression.313 Alternatively, the Government could rely on other constitutional heads of
power as the basis for legislating on privacy.314 However, the real challenge lies at the
negotiation stage, where passionate advocates on both sides of the debate will argue the value
and utility of such reform. In the past, privacy reform has fallen at this hurdle.
However, the current framework is ineffective and inefficient. A comprehensive and well-
thought out proposal, an effective education campaign and a strong government should
308
309
310
The Honourable Michael Kirby, in Milanda Rout, ‘Kirby says both rights can co-exist’, The Australian
(online), 23 July 2011 <http://www. theaustralian.com.au/national-affairs/kirby-says-both-rights-can-co-
exist/story-fn59niix-1226100083272>.
311
312
force 13 March 1976) [1980] ATS 23, Article 17.
313
force 13 March 1976) [1980] ATS 23, Article 19.
314
See, eg, Australian Constitution ss51(i), 51(xiii), 51(xiv), 51(xx).
P a g e | 73
ensure that the privacy framework is not simply patched up, but is created from scratch
according to the fundamental value of individual autonomy. These features should ensure the
success and longevity of the legislation in Australia.
4.10. Future Application of the New Framework
‘Complete privacy does not exist in this world except in a desert.’315 The Act is not built on
such unrealistic goals or vacuum-like contexts. The success of the legislation for aggrieved
individuals will depend highly on the privacy invasion cases that come before the courts, the
long-term social impact of the education campaign and the willingness of organisations such
as the media to comply with their obligations under the Act.
The cost of litigating the action will also be indicative of the legislation’s accessibility and
success. The particular forum chosen by the parties will largely determine the costs of
litigating invasions of privacy. While the appropriate court will depend on the particular
circumstances of the case and the remedies sought, the ALRC acknowledges that district and
county courts will be the most commonly used due to the extent of their jurisdiction and
expertise on such matters, and importantly because of lower costs.316 The legislation should
be accessible to everyone, not just celebrities, politicians or people with public profiles. The
education campaign aimed at the wider community should not only inform the public of the
contents of the Act, but should also recommend which court(s) to use to mount an action.
The campaign should also recommend that claimants seek legal advice.
Ultimately, the future of privacy law and policy will depend on how the legislation is
interpreted and applied by the courts. By drafting a clear statute like the one proposed in this
315
Restatement (Second) of Torts §652D comment c; cited in NSWLRC Consultation Paper 1, above n 98, 102
[4.28].
316
P a g e | 74
paper, the common law interpretation of the new legislation should result in socially and
legally desirable outcomes that value and protect the privacy of individuals in Australia.
P a g e | 75
CONCLUSION
The recent News of the World phone-hacking scandal represents one of many challenges
facing the notion of privacy as both a social and legal construct. Such a scandal should be the
last straw for the Australian legal system, providing strong impetus for change and reform to
the currently unravelling patchwork of laws which, at best, provide incidental protection of
privacy in Australia. A statutory cause of action would ‘create a climate of restraint which
might stem some of the activities that led to the closure of News of the World.’317
If a statutory cause of action like the one proposed in this paper is implemented in Australia,
members of the public would have adequate redress for invasions of privacy where there was
a reasonable expectation of privacy, and there is no public interest outweighing the privacy
interest in the circumstances of the case. By ensuring that both interests begin from an equal
standing point, interest groups in society are assured that no interest is preferred over another,
and that each case will turn on its own merits. Careful compromise and proportionality is
essential to effective law-making.
The proposed legislation takes into account present-day challenges to privacy protection, for
example by listing examples of privacy invasions such as phone-hacking and sharing of
private information obtained surreptitiously from social networking sites, which this paper
argues are some of the most threatening weapons against privacy protection. Moreover, the
legislation is adaptable and flexible. The statute encourages judicial discretion and also
provides a list of factors that may be applied to the particular facts of the case in order to
determine actionability. The common law can therefore interpret the legislation according to
317
Victorian Law Reform Commission, ‘Victorian Law Reform: Keeping Private Lives Private’ (2011) 85(10)
Law Institute Journal 87.
P a g e | 76
the social norms and contextual features and developments of the time, therefore reviewing
and redefining the fluid concept of privacy as advancements in society and technology occur.
Importantly, this paper illustrates that there should be active dialogue between politicians,
Law Reform Commissions and interest groups in order to create the most desirable and
effective solution to what has now become one of contemporary society’s key reform issues.
The time is certainly ripe for statutory protection of privacy in Australia.

P a g e | 77
APPENDIX
Table One: Current Legal Protection of Privacy
LEGAL ASPECT OF CAUSE OF INCIDENTAL EVALUATION

METHOD PRIVACY ACTION PROTECTION OF
PRIVACY IN A
MEDIA SETTING
Tort Territorial Tort of trespass Preventing those who Limited to the
privacy or to land enter private property vicinity of private
right to for the purpose of premises
seclusion photographing, filming,
interviewing or
recording the occupant
or their activities,
without lawful
authority318
Private Preventing harassment Does not give
nuisance by constant protection against
surveillance319 casual observation,
filming or
recording outside
the property or
from the airspace
above it320
318
Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457, 465, cited in New South Wales Law
Reform Commission, above n 2, 42 [2.40]; and see Doyle and Bagaric, above n 5, 63.
319
Bernstein v Sky News Ltd [1978] QB 479; Raciti v Hughes (1995) 7 BPR 14,837.
320
Lord Bernstein v Skyviews and General Limited [1977] 2 All ER 902, 909, cited in cited in New South Wales
Law Reform Commission, above n 2, 42 [2.45].
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Reputation Defamation Prevents the publication The law of

of a statement defamation
(including a photo)321 protects reputation,
that has the tendency to not privacy, and it
injure the person’s does not protect
reputation information
privacy in fact,
because if the
information is true
it is not
defamatory.322
However there is a
defence in NSW if
the imputation is
substantially true
and it related to a
matter of public
interest323
Passing Off Prevents appropriation Only available to
of the name, image or individuals with a
likeness of a person, public profile325
e.g. in advertising324
Private facts Intentional Prevents conduct Limited
infliction of calculated to cause application and
emotional physical or emotional ‘virtually useless’
distress326 damage to a person, e.g. in modern law.328
newspaper digging up The ingredients of
criminal record of a the action would
person campaigning to be too difficult to
raise money for a heart pin down and the
transplant327 policy
justifications
insecure329
Equity Information Breach of Protects information Where there is no
privacy Confidence (whether it be prior relationship
commercial information of confidence, the
or otherwise) which is information must
confidential or be stolen in order
relatively secret, that is to prove breach of
imparted in confidence.332 The
circumstances action would not
importing an obligation protect
321
Ettinghausen v Australian Consolidated Press Limited (1991) FLR 307.
322
323
Defamation Act 1974 (NSW) s 15.
324
Pacific Dunlop v Hogan (1989) 23 FCR 553.
325
326
Wilkinson v Downton [1897] 2 QB 57.
327
Tucker v News Media Ownership Ltd [1986] 2 NZLR 716.
328
329
P a g e | 79
of confidence (or information that is

wrongfully obtained - private but has not
assuming the media had been obtained in
not entered into a prior circumstances
relationship of which import an
confidence with the obligation of
plaintiff) and that confidence.333 In
information is used Lenah Game
detrimentally against Meats, Gleeson
the plaintiff,330 e.g. CJ, Kirby and
photos taken of an Callinan JJ (with
activity where it is Gaudron,
made clear that no Gummow and
unauthorised Hayne JJ finding it
photography is to be not necessary to
made331 decide) suggested
that a breach of
confidence action
will protect private
domestic activity
from publication,
however this could
be characterised as
attempting to fit a
square peg in a
round hole, and is
subject to the
reluctance of the
judiciary to
develop it further.
Statute Territorial Entering into Provides a criminal Provides no
privacy or inclosed lands offence where a protection of the
right to without lawful member of the media information
seclusion excuse or enters onto private obtained whilst on
consent of the property without lawful the land.
owner and excuse or consent, e.g.
remain on to take photos.
lands after
requested to
leave: Inclosed
Lands
Protection Act
1901 (NSW)
s4
330
Coco v AN Clark (Engineers) Ltd. [1969] RPC 41.
331
Creation Records Ltd v News Group Newspapers (1997) 39 IPR 1.
332
Franklin v Giddins [1978] QdR 72.
333
New South Wales Law Reform Commission, Invasion of Privacy, Report No 120, above n 6, 19 [4.12].
P a g e | 80
Offences under Provides a criminal Unless personal

the Crimes Act offence where a documents are
1900 (NSW) member of the media stolen, these
Part 4 for steals personal property offences
robbery, theft, documents or do not adequately
extortion, belongings, unless or directly protect
larceny, those items had been privacy.
sabotage and abandoned (e.g. left in a
malicious rubbish bin)334
damage to
property.
Bodily or Assault,335 Provides a criminal These offences are
personal stalking and offence where a fairly serious
privacy intimidation,336 member of the media criminal offences
and peeping or makes threats of and would require
prying337 under violence, or stalks the police
the Crimes Act person, or is prying investigation.
1900 (NSW). upon that person from
or near the building.
Reputation Criminal Publishing material, If the information
defamation338 e.g. in a newspaper, is true it may still
which is defamatory to be published,
the person, knowing it which does not
to be false and with offer protection for
intent to cause serious private
harm. information.
Personal Filming for The media setting up a The offence of
privacy indecent filming device to offensive
purposes capture indecent images behaviour has been
without of a person engaged in used to prosecute
consent, or a private sexual act. individuals who
installing a filmed topless
device to film sunbathers on a
for indecent Sydney beach for
purposes,339 or sexual
engaging in gratification,340
offensive however may not
behaviour have much
under applicability to a
Summary media setting.
Offences Act
1988
334
Donoghue v Coombe (1987) 45 SASR 330.
335
Crimes Act 1900 (NSW) Part 2, divs 8-10.
336
Ibid, s562AB.
337
Ibid, s547C.
338
Ibid, s529.
339
Summary Offences Act 1988 (NSW) ss21G, 21H.
340
Ibid, s4; see also New South Wales Law Reform Commission, Consultation Paper 1, above n 98, 61 [2.102].
P a g e | 81
Offence under Prevents phone-hacking The

the by the media. Commonwealth
Telecommunic legislation is
ations limited only to the
(Interception interception of
and telecommunication
Access) Act s.
1979 (Cth)
s7(1) or under
the
Surveillance
Devices Act
2007 (NSW)
s7(1)
Workplace Prohibitions on Prevents the media Limited
privacy surveillance of gaining access to application only to
employees in workplace surveillance the workplace.
change rooms, records for purpose of
toilet facilities publishing or gaining
and information about the
bathrooms;341 person’s employment
use or details.
disclosure of
workplace
surveillance
records;342 and
covert
surveillance.343
Information Criminal Prevents the media Limited to
privacy offences for from accessing private computer data only
unauthorised computer data
access,
modification
or impairment
of computer
data344
341
Workplace Surveillance Act 2005 (NSW) s15.
342
Ibid, ss18, 36, 37.
343
Ibid, s19.
344
Crimes Act 1900 (NSW) Part 6, Criminal Code Act 1995 (Cth) Part 10.7.
P a g e | 82
Interfering A member of the media Limited only to

with personal is able to access information
information personal information privacy held by
and using it for from an agency public sector, and
a purpose for (whether public or certain sections of
which private) and discloses it the private sector.
information is in a publication,
not intended without the consent of
under the the owner.
Privacy Act
1988 (Cth)345
or the Privacy
and Personal
Information
Protection Act
1998 (NSW)
Publishing A broadcaster publishes Only applicable to
restricted information about the information
information victim in a sexual regarding certain
identifying assault case on the radio victims and where
people, facts or TV348 the information is
etc in a closed related to a judicial
court case,346 proceeding, and
where the may be covered by
court has not equitable breach of
ordered the confidence.
media to do
so347
Prohibited A member of the media
disclosure of induces a public sector
health official to disclose
information349 health information
about a particular
individual for a
newspaper story350
345
Privacy Act 1988 (Cth) s13 [National Privacy Principles 9, 11].
346
Court Information Act 2010 (NSW) s6.
347
Ibid, s10.
348
Doe v Australian Broadcasting Commission [2007] VCC 281.
349
Health Records and Information Privacy Act 2002 (NSW).
350
Ibid, s68(2).
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Accessing A member of the media Relates only to

personal and obtains access to financial
financial verification information information and
information,351 held by a credit also to the
or not reporting agency by verification of
complying false pretences.352 personal details of
with Privacy people held by
Principles reporting entities.
when dealing
with financial
information
Private facts Intentional Prevents conduct Limited
infliction of calculated to cause application and
emotional physical or emotional ‘virtually useless’
distress353 damage to a person, e.g. in modern law.355
newspaper digging up The ingredients of
criminal record of a the action would
person campaigning to be too difficult to
raise money for a heart pin down and the
transplant354 policy
justifications
insecure356
351
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) Part 2 Div 5.
352
Ibid, s35J.
353
Wilkinson v Downton [1897] 2 QB 57.
354
Tucker v News Media Ownership Ltd [1986] 2 NZLR 716.
355
356
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Table Two: Elements, Defences and Remedies in Privacy Statutes from Overseas
Jurisdictions
JURISDICTION ELEMENTS DEFENCES REMEDIES

Privacy Act 1978  It is a tort  Consent  Damages
RSS  Actionable  Lawful right or  Injunction
(Saskatchewan) c without proof of defence of  Account of profits
P-24 damage person or  Delivery up
 for a person property  Any other relief
(Canada) wilfully and  Authorised by that appears
without claim of law necessary under the
right, to violate  Duty of peace circumstances.
the privacy of officer and not
another person disproportionate
 Without consent to gravity of the
or lawful matter
authority  News gathering
(that is
The statute provides reasonable in the
a non-exhaustive list circumstances)
of the types of  Public interest or
situations where fair comment
violation of privacy (but still not
might be found: obtained by
 Auditory violating
surveillance privacy)
 Listening or  Privileged under
recording defamation law
conversations
 Using person’s
image or
likeness for
advertising
 Use of letters,
diaries or
personal
documents
Taking into account:

 Nature of the act
 Effect
 Relationship
 Conduct before
and after e.g.
apology
Privacy Act 1987  A person  Consent  Damages (taking
P a g e | 85
CCSM (Manitoba)  who  Defendant into account the

(Canada) substantially, neither knew or nature of the
unreasonably, should offence, effect,
and without reasonably have relationships,
claim of right known that the distress, annoyance
 violates the act, conduct or or embarrassment
privacy of publication and conduct before
another person constituting the and after)
 commits a tort violation would  Injunction
against that other have violated the  Account of profits
person privacy of any  Delivery up of
person offending material
 No need to prove  Lawful right or
damage defence of
property or
Examples of person
violations include:  Under lawful
 Auditory authority
surveillance  Peace officer
 Listening or under duty and
recording acted
conversations proportionately
 Using person’s  Where
image or published, that
likeness for the matter was in
advertising public interest or
 Use of letters, for fair
diaries or comment, or
personal privileged
documents
Privacy Act 1990  It is a tort  Consent  Damages
RSNL  Actionable  Lawful right or  Injunction
(Newfoundland and without proof of defence of  Account of profits
Labrador) damage person or  Delivery up of
 for a person property offending material
(Canada) wilfully and  Authorised by  Any other relief
without claim of law that appears
right, to violate  Duty of peace necessary
the privacy of officer and not
another person disproportionate These remedies can be
 Without consent to gravity of the additional to other
or lawful matter remedies available
authority  Public interest or under other Acts.
 In determining fair comment
the nature and (but still not
degree of obtained by
privacy and violating
whether it is privacy)
reasonable in the  Privileged under
circumstances, defamation law
P a g e | 86
the lawful
interests of
others, and the
nature,
incidence, and
occasion of the
act or conduct
and to the
relationship
between the
parties, is
relevant
Examples of
invasions of privacy:
 Auditory
surveillance
 Listening or
recording
conversations
 Using person’s
image or
likeness for
advertising
 Use of letters,
diaries or
personal
documents
Privacy Act 1996 Two separate torts: These are referred to There does not appear
RSBC (British as ‘exceptions’, not to be a remedies
Columbia) 1. Violation of as ‘defences’, but it section.
privacy: will not be a
(Canada)  It is a tort violation of privacy
 Actionable where there is:
without proof of
damage  Consent
 for a person  Lawful right or
wilfully and defence of
without claim of person or
right, to violate property
the privacy of  Authorised by
another person law
 Without consent  Duty of peace
or lawful officer and not
authority disproportionate
 In determining to gravity of the
the nature and matter
degree of  Public interest or
privacy and fair comment
P a g e | 87
whether it is (but still not

reasonable in the obtained by
circumstances, violating
the lawful privacy)
interests of  Privileged under
others, and the defamation law
nature,
incidence, and
occasion of the
act or conduct
and to the
relationship
between the
parties, is
relevant
 Includes
eavesdropping
and surveillance
whether or not
accomplished by
trespass
2. Unauthorised use
of the name or
portrait of
another
 It is a tort
 actionable
without proof of
damage
 for a person to
use the name or
portrait of
another for the
purpose of
advertising or
promoting
 unless the
person consents
 The defendant  If a defendant  Damages up to

knowingly enters transmits, three times the
onto the land of publishes, sells, amount of any
California Civil another person broadcasts etc general and special
Code 1998 §1708.8  without the offending damages that are
permission or material but did proximately caused
(United States) otherwise not have actual by the violation of
committed a knowledge that this section.
Note: the US has a trespass in order the offending  Punitive damages
P a g e | 88
constitutionally- to physically material was in  Disgorgement of

entrenched right to invade the violation of the proceeds (if
freedom of the press. privacy of the Code invasion of privacy
plaintiff  Lawful activities was committed for
 with the intent to by law a commercial
capture any type enforcement or purpose)
of visual image, government or  Civil fine (between
sound recording, private sector $5,000 and
or other physical agencies with $50,000)
impression of the authority  Equitable relief,
plaintiff  It is NOT a including
engaging in a defence that the injunctions and
personal or image, recording restraining orders
familial activity etc was not
 and the physical actually captured
invasion occurs
in a manner that
is offensive to a
reasonable
person
There is also an
action for
constructive breach
of privacy, assault or
false imprisonment
with intent to
capture image (etc)
and an action for
directing, soliciting
or inducing another
to commit the
offence.
 It is a tort for a  Lawful defence  Prohibitory order
Privacy Bill 2006* person of person or  Appropriate
 who wilfully and property damages in the
without lawful  Installation of circumstances
(Ireland) authority CCTV in good  Account of profits
 violates the faith  Aggravated,
privacy of an  Act of news exemplary or
individual gathering, in punitive damages
*Bill not passed:  and the tort is good faith, for
2007 actionable public
without proof of importance, for
special damage public interest,
and fair and
reasonable in the
circumstances
 Absolute or
qualified
P a g e | 89
privilege
P a g e | 90
Table Three: Comparison of Recommendations for a
Statutory Cause of Action in Australia
Element of the ALRC NSWLRC My Proposal

Cause of Action
Act to which the New federal Act to Civil Liability Act New federal Act to
cause of action will be passed. 2002 (NSW) to be be passed, e.g.
be included amended (but part of Invasion of Privacy
a uniform law Act. The Act should
exercise to achieve be a Commonwealth
national consistency). Act but all states and
territories should
enact uniform
legislation to ensure
consistency.
Type of Action General, statutory General, statutory General, statutory
cause of action for cause of action for cause of action for
serious invasions of invasion of privacy invasion of privacy
privacy
Definition No attempt to define No attempt to define No need to define,
but should provide a
non-exhaustive list of
examples of privacy
invasions so that the
common law may
assist in developing a
flexible and
adaptable set of
social and legal
norms surrounding
the concept of
privacy.
Objects Clause No objects clause.  Recognise that it  Create uniform
is important to legislation
protect privacy of  Recognise that is
individuals but important to
this must be protect individual
balanced against autonomy
other interests,  Recognise that it
including public is important to
interest protect privacy of
 Create a statutory individuals and
cause of action balance privacy
 Provide remedies against other
interests,
P a g e | 91
including public
interest
 Create a statutory
cause of action
 Provide remedies
 Educate public on
the new
legislation and on
how they can
protect their
privacy and avoid
invasions of
privacy
Who can bring the  Natural persons  Natural persons  Person whose
action? whose privacy whose privacy privacy has been
has been invaded has been invaded. invaded may
 Children and  This does not bring the action.
young people continue after the  This should
need a litigation death of the extend after death
guardian to bring plaintiff. so that family
a privacy claim. members or
others who are
affected (e.g. with
emotional or
mental distress)
can bring an
action (this is in
direct response to
serious behaviour
by media
organisations in
hacking the
phones of murder
victims).
Test There is a:  The privacy that  The conduct of

 Reasonable the individual another person
expectation of was ‘reasonably invaded the
privacy entitled to expect privacy that the
 Highly offensive in all the individual was
to a reasonable circumstances, reasonably
person of having regard to entitled to expect
ordinary any relevant in all of the
sensibilities public interest’ circumstances
 Actionable was invaded and
without proof of  Silent on  The privacy
damage requirement of interest, when
proof of damage considered on
balance against
an equally
P a g e | 92
weighted public
interest,
outweighs that
public interest in
the circumstances
 Actionable
without proof of
damage
Mental Element Intentional or Unnecessary to Unnecessary to
reckless acts specify, as this is not specify, as this is not
a tortious action. a tortious action and
courts should be able
to use their discretion
for accidental acts
and other mental
elements
Factors to be taken  Whether the  Nature of the  Nature of the
into account public interest in subject matter subject matter
maintaining the  Nature of conduct  Nature of conduct
claimant’s  Relationship  Relationship
privacy between parties between parties
outweighs other  Public profile  Public profile
matters of public  Vulnerability  Vulnerability
interest  Conduct before  Conduct before
(including the and after and after
interest of the  Effect on health,  Whether an
public to be welfare and apology or
informed about emotional amends is made
matters of public wellbeing  Effect on health,
concern and the  Contravening welfare and
public interest in other Australian emotional
allowing freedom laws wellbeing
of expression)  Contravening
other Australian
laws
 Whether there
was consent (and
the extent to
which the activity
was consented to)
 Any other matter
which the Court
thinks appropriate
Consent Consent is an Consent (not defined Express or implied

essential element of in the legislation but consent, only to the
the cause of action includes express and extent of the consent
and should be implied consent) will (i.e. if invasion went
considered when vitiate an action beyond what was
determining whether consented to then an
P a g e | 93
a claimant had a action may still be

reasonable mounted: e.g.
expectation of circulation of
privacy in the Facebook photo
circumstances or beyond the realm of
when determining ‘friends’). This is
whether the act listed as a factor to be
complained of was taken into account.
sufficiently serious to
cause substantial
offence to a person of
ordinary sensibilities
Onus Recommendations Onus is on plaintiff No need to specify as
are silent on this. to prove absence of the court will take
consent this into account as a
factor, however
applying normal
rules the onus should
be on the plaintiff to
negative consent.
Types of privacy Provides a non- General action, types Provides a non-
that are protected exhaustive list of the of privacy protection exhaustive list of the
by the statute types of invasions of are not spelt out types of invasions of
privacy that may fall specifically, it will be privacy that may fall
under the statute: up to the Courts to under the statute:
 Interference with determine in the  Interference with
home or family circumstances home or family
life; life (which
 Unauthorised includes where a
surveillance; deceased
 Interference, individual’s
misuse or privacy is
disclosure of invaded which
correspondence, impacts on living
or private written, relatives);
oral or electronic  Unauthorised
communication; surveillance;
 Sensitive facts  Interference,
relating to an misuse or
individual’s disclosure of
private life correspondence,
or private written,
oral or electronic
communication;
 Sensitive facts,
photographs and
other material
relating to an
individual’s
private life is
P a g e | 94
disclosed
 Online activity is
interfered with,
misused or
disclosed
 Any other
circumstances
which the Court
determines
Defences Exhaustive list:  Required or  Conduct was
authorised under required,
 Lawful right of law authorised or
defence of person  Lawful defence enabled by law or
or property of person or Court order
 Authorised by property  Lawful defence
law (where law  Publication of a of person or
includes matter would property or in
Commonwealth give rise to Court
and state and defamation proceedings
territory Acts and defences of
delegated absolute privilege
legislation as well or fair report of
as duties of proceedings
confidentiality  Where the
under common defendant
law or equity) publishing the
 Privileged under matter is an agent
law of or employee, did
defamation not know or
ought not
reasonably have
known that the
matter was an
invasion of
privacy (innocent
dissemination
defence)
 Where matter is
published but
there is a
common interest
or duty in giving
or receiving
information (and
there is no
malice)
Onus Recommendation is Onus is on defendant Onus is on defendant
silent on this issue, to prove defence to prove defence
we assume onus is on
defendant.
P a g e | 95
Remedies The Court should ‘be The Court has wide  Compensation
empowered to choose discretion to choose (no cap).
the remedy that is the remedy that is  Prohibition order
most appropriate in most appropriate in  Declaration
the circumstances’, the circumstances,  Delivery up
and the statute and the statute  Apology
provides a list of provides a non-  Correction order,
examples of possible exhaustive list: proportional to
remedies:  Compensation original
 Damages (not ‘damages’, publication
(including as compensation  Other relief that
aggravated should be able to the Court thinks
damages but not be sought for appropriate
exemplary mental or
damages) emotional
 Account of distress alone,
profits although there is
 Injunction a cap on non-
 Apology order economic loss
 Correction order compensation of
 Delivery up and $150,000,
destruction of adjustable yearly)
material  Prohibitory order
 Declaration (not an injunction
necessarily,
depends on
public interest
and free speech
considerations
but also the
importance of
upholding
privacy in the
first place than
leave it to
compensation)
 Declaratory
orders
 Delivery up of
offending
material
 Any other relief
as the court
considers
necessary (relief
could include
asset preservation
orders, search
orders, account of
profits, apology,
P a g e | 96
correction orders
and other
appropriate
remedies, orders,
ancillary orders
or procedural
advices derived
from other
statutory or
general law, or
under the
regulations)
 No exemplary or
punitive damages
allowed
Limitation Period No proposal put 1 year from date of 1 year from date of
forward, we assume defendant’s conduct the claimant
ALRC follows the (but court has becoming aware of
NSWLRC proposal. discretion to extend the circumstances
by 3 years) surrounding the
invasion of privacy,
with a 3 year
discretional extension
period)
Education Office of the Privacy No education A comprehensive
Campaign Commissioner campaign was education campaign
should provide proposed should be created
information to the which both informs
public concerning the the general public
recommended about their rights
statutory cause of under the Act, and
action for a serious informs primary,
invasion of privacy secondary and
tertiary students in
particular about the
range of issues
relating to protecting
their own privacy,
particularly online.
Relationship with Abolishes any action Other laws can still Other laws can still
other laws relating for invasion of exist, e.g. Privacy exist, e.g. Privacy
to privacy privacy at common Act and torts and Act and torts and
law. breach of confidence, breach of confidence,
but there cannot be a but there cannot be a
common law tort common law tort
action for invasion of action for invasion of
privacy because it privacy because it
may undermine the may undermine the
statutory cause of statutory cause of
action action (same as
P a g e | 97
NSWLRC approach)
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Statutory Cause of Action for Privacy in Australia

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JESSIE PORTEUS

Submission to the Department of

1. THE NEED FOR PRIVACY..........................................................................................................7

4.8. Education Campaign............................................................................................................67

Table 1: Current Legal Protection of Privacy...................................................................................75

endeavour as just too difficult to achieve is not an option.1

surrounding widespread media phone-hacking.

to protecting the various notions of personal privacy in Australia.

A new wave of privacy regulation is now in an embryonic5 stage as a result of recent

developments. In 2011, there is an overwhelming need to change the currently defective

advancements in technology, the domination of social networking in the everyday lives of

models upon which the proposed legislation is based.

privacy laws and literature in 2011.

comprehensive education campaign aimed at improving social norms and expectations

1. THE NEED FOR PRIVACY

Privacy, however, is far more complicated, as it involves a cluster of nuanced expectations of

accessibility, confidentiality and control. If we are to protect privacy today, we need to

rethink our understandings of privacy.7

1.1. Definitional Difficulties

‘Privacy seems to encompass everything, and therefore it appears to be nothing in itself.’8

Commission described privacy as ‘material which so closely pertains to a person’s innermost

others.’14 Cooley simply described it as the ‘right to be let alone’.15

even finding endorsement by the Irish Working Group on Privacy:16

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. 17

subjected to arbitrary or unlawful interference with his privacy, family, home or

correspondence, nor to unlawful attacks on his honour and reputation.’20

As a result, privacy is not a wholly-recognised right in Australia.

by Prosser in 1960 as intrusion upon seclusion, public disclosure of embarrassing private

personal information only, the definitional strait-jacket is removed, resulting in a ‘less

private spheres is therefore a highly context-dependent exercise. An activity is not private

private nature simply because it occurs in a public place.32

recognition at nightclubs, smart cards, telemarketing, debt recovery, anti-terrorism checks,

adapt to these invasions.

dissemination of personal information:

and potentially embarrassing images and information?37

privacy’s meaning is contextually-relative. The following discussion identifies the current

it is necessary to give legal recognition to privacy interests in Australia.

1.2. The Ripening of the Fruit

remaining sensationalist disclosure39 to spark the privacy debate in Australia. It is time to

reform the law.

framework in the landmark case of Australian Broadcasting Commission v Lenah Game

Meats (2001) 208 CLR 199 [‘Lenah’]:

as a government - freedom of speech, and people’s right to have a private life’.42 In

conservatism by refusing to recognise a right to privacy and by failing to provide a statutory

cause of action for privacy invasion.

1.3. The [Anti] Social Network

between privacy and free speech continues unabatedly.

The explosion of new technology represents an advanced set of weaponry, threatening

that are authorised to access such information:

than its technological predecessors. It is a developing technology, potentially without limits.

and remaining permanent ‘digital baggage’.53

device. With an increasingly-evolving ecosystem of interconnected networks developing

With one click on an online advertisement, Facebook assumes it to be an endorsement worth

that some tangible benefit will arise from the disclosure.

Werbeloff became known as the Chk-Chk-Boom-girl when her eye-witness account of a

effective solution to privacy issues online.

The explosion of online information and interconnectedness therefore necessitates a

personal and family relationships may be adversely affected. An interesting exercise

illustrating the extent of availability of this type of information occurred at Fordham

individual control.75 The value of individual autonomy is diminished.

contemporary society. The internet provides extraordinary possibilities and limitless