Submission to the Department of Prime Minister and Cabinet 2 November 2011



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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.



  1. An individual’s privacy is invaded for the purpose of this Act if:

  1. the conduct of another person invaded the privacy that the individual was reasonably entitled to expect in all of the circumstances, and

  2. the individual’s privacy interest, when considered on balance, outweighs any relevant public interest in the circumstances of the case.



  1. To avoid doubt, privacy interests and public interests are to be considered from an equal standing point.



  1. Invasion of privacy under this Act is actionable without proof of damage.






      1. Factors to be Taken into Account

T
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.
his 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.


      1. 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.

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.


      1. 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.


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.




    1. 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.

H
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:

  1. By or under a State, Territory or Commonwealth law; or

  2. By an Australian court or tribunal or a process of such a court or tribunal.



  1. 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.
owever, 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.


    1. 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 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 for emotional and mental distress alone. This paper proposes a compensation remedy without monetary restriction, particularly because privacy invasions, by their nature, will often result in emotional and mental distress. The appropriate level of compensation should be reached by a Court on its own discretion and analysis according to the facts at hand and with regard to social and legal norms operating at the time.


Recommendation 7: Remedies

6 Remedies

In an action under this Act for the invasion of an individual’s privacy, the court may (subject to any jurisdictional limits of the court) grant any one or more of the following remedies, whether on an interim or final basis, as the court considers appropriate:



  1. An order for the payment of compensation;

  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:

  1. Are in the possession of the defendant or the defendant is able to retrieve; and

  2. Were obtained or made as a result of the invasion of the claimant’s privacy or were published during the course of conduct giving rise to the invasion of privacy;

  1. An order that the defendant apologise to the claimant for the conduct;

  2. A correction order, which is proportionate to the original publication;

  3. Such other relief as the court thinks appropriate in the circumstances.






    1. 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.

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 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.

N
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.
ot 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.

    1. 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 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 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.



    1. 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 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.

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 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.



APPENDIX

Table One: Current Legal Protection of Privacy

LEGAL METHOD

ASPECT OF PRIVACY

CAUSE OF ACTION

INCIDENTAL PROTECTION OF PRIVACY IN A MEDIA SETTING

EVALUATION

Tort

Territorial privacy or right to seclusion

Tort of trespass to land

Preventing those who enter private property for the purpose of photographing, filming, interviewing or recording the occupant or their activities, without lawful authority318

Limited to the vicinity of private premises

Private nuisance

Preventing harassment by constant surveillance319

Does not give protection against casual observation, filming or recording outside the property or from the airspace above it320

Reputation

Defamation

Prevents the publication of a statement (including a photo)321 that has the tendency to injure the person’s reputation

The law of defamation protects reputation, not privacy, and it does not protect 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 of the name, image or likeness of a person, e.g. in advertising324

Only available to individuals with a public profile325

Private facts

Intentional infliction of emotional distress326

Prevents conduct calculated to cause physical or emotional damage to a person, e.g. newspaper digging up criminal record of a person campaigning to raise money for a heart transplant327

Limited application and ‘virtually useless’ in modern law.328 The ingredients of the action would be too difficult to pin down and the policy justifications insecure329

Equity

Information privacy

Breach of Confidence

Protects information (whether it be commercial information or otherwise) which is confidential or relatively secret, that is imparted in circumstances importing an obligation of confidence (or wrongfully obtained - assuming the media had not entered into a prior relationship of confidence with the plaintiff) and that information is used detrimentally against the plaintiff,330 e.g. photos taken of an activity where it is made clear that no unauthorised photography is to be made331


Where there is no prior relationship of confidence, the information must be stolen in order to prove breach of confidence.332 The action would not protect information that is private but has not been obtained in circumstances which import an obligation of confidence.333 In Lenah Game Meats, Gleeson CJ, Kirby and Callinan JJ (with Gaudron, Gummow and Hayne JJ finding it not necessary to 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 privacy or right to seclusion

Entering into inclosed lands without lawful excuse or consent of the owner and remain on lands after requested to leave: Inclosed Lands Protection Act 1901 (NSW) s4


Provides a criminal offence where a member of the media enters onto private property without lawful excuse or consent, e.g. to take photos.

Provides no protection of the information obtained whilst on the land.

Offences under the Crimes Act 1900 (NSW) Part 4 for robbery, theft, extortion, larceny, sabotage and malicious damage to property.

Provides a criminal offence where a member of the media steals personal documents or belongings, unless those items had been abandoned (e.g. left in a rubbish bin)334

Unless personal documents are stolen, these property offences do not adequately or directly protect privacy.

Bodily or personal privacy

Assault,335 stalking and intimidation,336 and peeping or prying337 under the Crimes Act 1900 (NSW).

Provides a criminal offence where a member of the media makes threats of violence, or stalks the person, or is prying upon that person from or near the building.

These offences are fairly serious criminal offences and would require police investigation.

Reputation

Criminal defamation338

Publishing material, e.g. in a newspaper, which is defamatory to the person, knowing it to be false and with intent to cause serious harm.

If the information is true it may still be published, which does not offer protection for private information.

Personal privacy

Filming for indecent purposes without consent, or installing a device to film for indecent purposes,339 or engaging in offensive behaviour under Summary Offences Act 1988

The media setting up a filming device to capture indecent images of a person engaged in a private sexual act.

The offence of offensive behaviour has been used to prosecute individuals who filmed topless sunbathers on a Sydney beach for sexual gratification,340 however may not have much applicability to a media setting.




Offence under the Telecommunications (Interception and

Access) Act 1979 (Cth) s7(1) or under the Surveillance Devices Act 2007 (NSW) s7(1)

Prevents phone-hacking by the media.

The Commonwealth legislation is limited only to the interception of telecommunications.

Workplace privacy

Prohibitions on surveillance of employees in change rooms, toilet facilities and bathrooms;341 use or disclosure of workplace surveillance records;342 and covert surveillance.343

Prevents the media gaining access to workplace surveillance records for purpose of publishing or gaining information about the person’s employment details.

Limited application only to the workplace.

Information privacy

Criminal offences for unauthorised access, modification or impairment of computer data344

Prevents the media from accessing private computer data

Limited to computer data only

Interfering with personal information and using it for a purpose for which information is not intended under the Privacy Act 1988 (Cth)345 or the Privacy and Personal Information Protection Act 1998 (NSW)

A member of the media is able to access personal information from an agency (whether public or private) and discloses it in a publication, without the consent of the owner.

Limited only to information privacy held by public sector, and certain sections of the private sector.


Publishing restricted information identifying people, facts etc in a closed court case,346 where the court has not ordered the media to do so347

A broadcaster publishes information about the victim in a sexual assault case on the radio or TV348

Only applicable to information regarding certain victims and where the information is related to a judicial proceeding, and may be covered by equitable breach of confidence.

Prohibited disclosure of health information349

A member of the media induces a public sector official to disclose health information about a particular individual for a newspaper story350




Accessing personal and financial information,351 or not complying with Privacy Principles when dealing with financial information

A member of the media obtains access to verification information held by a credit reporting agency by false pretences.352

Relates only to financial information and also to the verification of personal details of people held by reporting entities.

Private facts

Intentional infliction of emotional distress353

Prevents conduct calculated to cause physical or emotional damage to a person, e.g. newspaper digging up criminal record of a person campaigning to raise money for a heart transplant354

Limited application and ‘virtually useless’ in modern law.355 The ingredients of the action would be too difficult to pin down and the policy justifications insecure356

Table Two: Elements, Defences and Remedies in Privacy Statutes from Overseas Jurisdictions

JURISDICTION

ELEMENTS

DEFENCES

REMEDIES

Privacy Act 1978 RSS (Saskatchewan) c P-24
(Canada)

  • It is a tort

  • Actionable without proof of damage

  • for a person wilfully and without claim of right, to violate the privacy of another person

  • Without consent or lawful authority

The statute provides a non-exhaustive list of the types of situations where violation of privacy might be found:



  • Auditory surveillance

  • Listening or recording 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

  • Consent

  • Lawful right or defence of person or property

  • Authorised by law

  • Duty of peace officer and not disproportionate to gravity of the matter

  • News gathering (that is reasonable in the circumstances)

  • Public interest or fair comment (but still not obtained by violating privacy)

  • Privileged under defamation law

  • Damages

  • Injunction

  • Account of profits

  • Delivery up

  • Any other relief that appears necessary under the circumstances.




Privacy Act 1987 CCSM (Manitoba)

(Canada)


  • A person

  • who substantially, unreasonably, and without claim of right

  • violates the privacy of another person

  • commits a tort against that other person




  • No need to prove damage

Examples of violations include:



  • Auditory surveillance

  • Listening or recording conversations

  • Using person’s image or likeness for advertising

  • Use of letters, diaries or personal documents

  • Consent

  • Defendant neither knew or should reasonably have known that the act, conduct or publication constituting the violation would have violated the privacy of any person

  • Lawful right or defence of property or person

  • Under lawful authority

  • Peace officer under duty and acted proportionately

  • Where published, that the matter was in public interest or for fair comment, or privileged




  • Damages (taking into account the nature of the offence, effect, relationships, distress, annoyance or embarrassment and conduct before and after)

  • Injunction

  • Account of profits

  • Delivery up of offending material




Privacy Act 1990 RSNL (Newfoundland and Labrador)
(Canada)


  • It is a tort

  • Actionable without proof of damage

  • for a person wilfully and without claim of right, to violate the privacy of another person

  • Without consent or lawful authority

  • In determining the nature and degree of privacy and whether it is reasonable in the circumstances, 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




  • Consent

  • Lawful right or defence of person or property

  • Authorised by law

  • Duty of peace officer and not disproportionate to gravity of the matter

  • Public interest or fair comment (but still not obtained by violating privacy)

  • Privileged under defamation law

  • Damages

  • Injunction

  • Account of profits

  • Delivery up of offending material

  • Any other relief that appears necessary

These remedies can be additional to other remedies available under other Acts.



Privacy Act 1996 RSBC (British Columbia)
(Canada)

Two separate torts:


  1. Violation of privacy:

  • It is a tort

  • Actionable without proof of damage

  • for a person wilfully and without claim of right, to violate the privacy of another person

  • Without consent or lawful authority

  • In determining the nature and degree of privacy and whether it is reasonable in the circumstances, 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

  • Includes eavesdropping and surveillance whether or not accomplished by trespass



  1. 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




These are referred to as ‘exceptions’, not as ‘defences’, but it will not be a violation of privacy where there is:


  • Consent

  • Lawful right or defence of person or property

  • Authorised by law

  • Duty of peace officer and not disproportionate to gravity of the matter

  • Public interest or fair comment (but still not obtained by violating privacy)

  • Privileged under defamation law

There does not appear to be a remedies section.


California Civil Code 1998 §1708.8
(United States)
Note: the US has a constitutionally-entrenched right to freedom of the press.

  • The defendant knowingly enters onto the land of another person

  • without permission or otherwise committed a trespass in order to physically invade the privacy of the plaintiff

  • with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity

  • and the physical 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.



  • If a defendant transmits, publishes, sells, broadcasts etc the offending material but did not have actual knowledge that the offending material was in violation of the Code

  • Lawful activities by law enforcement or government or private sector agencies with authority

  • It is NOT a defence that the image, recording etc was not actually captured

  • Damages up to three times the amount of any general and special damages that are proximately caused by the violation of this section.

  • Punitive damages

  • Disgorgement of proceeds (if invasion of privacy was committed for a commercial purpose)

  • Civil fine (between $5,000 and $50,000)

  • Equitable relief, including injunctions and restraining orders





Privacy Bill 2006*

(Ireland)


*Bill not passed: 2007



  • It is a tort for a person

  • who wilfully and without lawful authority

  • violates the privacy of an individual

  • and the tort is actionable without proof of special damage

  • Lawful defence of person or property

  • Installation of CCTV in good faith

  • Act of news gathering, in good faith, for public importance, for public interest, and fair and reasonable in the circumstances

  • Absolute or qualified privilege

  • Prohibitory order

  • Appropriate damages in the circumstances

  • Account of profits

  • Aggravated, exemplary or punitive damages




Table Three: Comparison of Recommendations for a

Statutory Cause of Action in Australia

Element of the Cause of Action

ALRC

NSWLRC

My Proposal

Act to which the cause of action will be included

New federal Act to be passed.

Civil Liability Act 2002 (NSW) to be amended (but part of a uniform law exercise to achieve national consistency).

New federal Act to be passed, e.g. Invasion of Privacy Act. The Act should be a Commonwealth Act but all states and territories should enact uniform legislation to ensure consistency.

Type of Action

General, statutory cause of action for serious invasions of privacy

General, statutory cause of action for invasion of privacy

General, statutory cause of action for invasion of 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 is important to protect privacy of individuals but this must be balanced against other interests, including public interest

  • Create a statutory cause of action

  • Provide remedies

  • Create uniform legislation

  • Recognise that is important to protect individual autonomy

  • Recognise that it is important to protect privacy of individuals and balance privacy against other interests, 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 action?

  • Natural persons whose privacy has been invaded

  • Children and young people need a litigation guardian to bring a privacy claim.

  • Natural persons whose privacy has been invaded.

  • This does not continue after the death of the plaintiff.

  • Person whose privacy has been invaded may bring the action.

  • This should extend after death so that family 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:

  • Reasonable expectation of privacy

  • Highly offensive to a reasonable person of ordinary sensibilities

  • Actionable without proof of damage

  • The privacy that the individual was ‘reasonably entitled to expect in all the circumstances, having regard to any relevant public interest’ was invaded

  • Silent on requirement of proof of damage




  • The conduct of another person invaded the privacy that the individual was reasonably entitled to expect in all of the circumstances and

  • The privacy interest, when considered on balance against an equally weighted public interest, outweighs that public interest in the circumstances

  • Actionable without proof of damage

Mental Element

Intentional or reckless acts

Unnecessary to specify, as this is not a tortious action.

Unnecessary to specify, as this is not a tortious action and courts should be able to use their discretion for accidental acts and other mental elements

Factors to be taken into account

  • Whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression)

  • Nature of the subject matter

  • Nature of conduct

  • Relationship between parties

  • Public profile

  • Vulnerability

  • Conduct before and after

  • Effect on health, welfare and emotional wellbeing

  • Contravening other Australian laws

  • Nature of the subject matter

  • Nature of conduct

  • Relationship between parties

  • Public profile

  • Vulnerability

  • Conduct before and after

  • Whether an apology or amends is made

  • Effect on health, welfare and emotional wellbeing

  • 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 essential element of the cause of action and should be considered when determining whether a claimant had a reasonable expectation of privacy in the circumstances or when determining whether the act complained of was sufficiently serious to cause substantial offence to a person of ordinary sensibilities

Consent (not defined in the legislation but includes express and implied consent) will vitiate an action

Express or implied consent, only to the extent of the consent (i.e. if invasion went beyond what was consented to then an action may still be mounted: e.g. circulation of Facebook photo beyond the realm of ‘friends’). This is listed as a factor to be taken into account.

Onus

Recommendations are silent on this.

Onus is on plaintiff to prove absence of consent

No need to specify as the court will take this into account as a factor, however applying normal rules the onus should be on the plaintiff to negative consent.

Types of privacy that are protected by the statute

Provides a non-exhaustive list of the types of invasions of privacy that may fall under the statute:

  • Interference with home or family life;

  • Unauthorised surveillance;

  • Interference, misuse or disclosure of correspondence, or private written, oral or electronic communication;

  • Sensitive facts relating to an individual’s private life

General action, types of privacy protection are not spelt out specifically, it will be up to the Courts to determine in the circumstances

Provides a non-exhaustive list of the types of invasions of privacy that may fall under the statute:

  • Interference with home or family life (which includes where a deceased individual’s privacy is invaded which impacts on living relatives);

  • Unauthorised surveillance;

  • Interference, misuse or disclosure of correspondence, or private written, oral or electronic communication;

  • Sensitive facts, photographs and other material relating to an individual’s private life is disclosed

  • Online activity is interfered with, misused or disclosed

  • Any other circumstances which the Court determines

Defences

Exhaustive list:


  • Lawful right of defence of person or property

  • Authorised by law (where law includes Commonwealth and state and territory Acts and delegated legislation as well as duties of confidentiality under common law or equity)

  • Privileged under law of defamation

  • Required or authorised under law

  • Lawful defence of person or property

  • Publication of a matter would give rise to defamation defences of absolute privilege or fair report of proceedings

  • Where the defendant publishing the matter is an agent or employee, did 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)

  • Conduct was required, authorised or enabled by law or Court order

  • Lawful defence of person or property or in Court proceedings

Onus

Recommendation is silent on this issue, we assume onus is on defendant.

Onus is on defendant to prove defence

Onus is on defendant to prove defence

Remedies

The Court should ‘be empowered to choose the remedy that is most appropriate in the circumstances’, and the statute provides a list of examples of possible remedies:

  • Damages (including aggravated damages but not exemplary damages)

  • Account of profits

  • Injunction

  • Apology order

  • Correction order

  • Delivery up and destruction of material

  • Declaration

The Court has wide discretion to choose the remedy that is most appropriate in the circumstances, and the statute provides a non-exhaustive list:

  • Compensation (not ‘damages’, as compensation should be able to be sought for mental or emotional distress alone, although there is a cap on non-economic loss compensation of $150,000, adjustable yearly)

  • Prohibitory order (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, 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

  • Compensation (no cap).

  • Prohibition order

  • Declaration

  • Delivery up

  • Apology

  • Correction order, proportional to original publication

  • Other relief that the Court thinks appropriate




Limitation Period

No proposal put forward, we assume ALRC follows the NSWLRC proposal.

1 year from date of defendant’s conduct (but court has discretion to extend by 3 years)

1 year from date of the claimant becoming aware of the circumstances surrounding the invasion of privacy, with a 3 year discretional extension period)

Education Campaign

Office of the Privacy Commissioner should provide information to the public concerning the recommended statutory cause of action for a serious invasion of privacy

No education campaign was proposed

A comprehensive education campaign should be created which both informs the general public about their rights under the Act, and informs primary, secondary and tertiary students in particular about the range of issues relating to protecting their own privacy, particularly online.

Relationship with other laws relating to privacy

Abolishes any action for invasion of privacy at common law.

Other laws can still exist, e.g. Privacy Act and torts and breach of confidence, but there cannot be a common law tort action for invasion of privacy because it may undermine the statutory cause of action

Other laws can still exist, e.g. Privacy Act and torts and breach of confidence, but there cannot be a common law tort action for invasion of privacy because it may undermine the statutory cause of action (same as NSWLRC approach)

BIBLIOGRAPHY

A Articles / Books / Reports

ABC News, ‘ADFA cadet suspended over shower scandal’, ABC News (online), 27 August 2011

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