A Statutory Tort for Serious Invasions of Privacy?

Introduction

To many people’s surprise, it remains the case in Australia that individuals do not have a specific right to obtain compensatory damages for serious invasions of privacy, such as the sharing of intimate images on social media platforms, and that the damages that may be sought under various other causes of action are limited.¹ Since the High Court in Australian Broadcasting Corporation v. Lenah Game Meats Pty Ltd² left open the possibility for a tort of privacy to be developed, no common law tort for invasion of privacy has been fully recognised in Australia. Rather, other causes of action, such as, trespass, nuisance, defamation and breach of confidence can be relied upon to a more limited extent to protect privacy.³

Review of the Privacy Act 

On 30 January 2006, the Australian Law Reform Commission (ALRC) commenced a 28-month inquiry into the extent to which the Privacy Act 1988 (Cth) (Privacy Act) effectively protected privacy in Australia, and considered whether a statutory cause of action for serious invasion of privacy should be enacted, which culminated in the publication of the ALRC report in May 2008. The question was further considered in the 2014 ALRC report and more recently in the 2020 review by the Attorney-General’s Department of the Privacy Act, which was completed on 16 February 2023 with the publication of the Privacy Act Review Report (Review Report).⁴

The Review Report found that existing frameworks have clear gaps in current privacy protection, and the ability for an individual to take steps to protect themselves and seek compensation for invasions of privacy.⁵ While the Privacy Act regulates the protection of personal information, it only applies to certain entities, which are mainly Australian Government agencies and large private sector organisations with a turnover exceeding AU$3 million, but not to individuals and a large number of organisations (such as small businesses) whose activities may have an impact on individual privacy.⁶ It also does not provide protections in relation to bodily or territorial privacy.⁷

It was proposed that such gaps would be best addressed through the introduction of a statutory tort for serious invasions of privacy, to be implemented in consultation with the states and territories to ensure a consistent national approach.⁸ The introduction of such a tort was supported by academics, privacy and consumer advocates, the Law Council of Australia,⁹ the Office of the Australian Information Commissioner (OAIC), and the Office of the Information Commissioner Queensland.¹⁰

What will the Statutory Tort for Serious Invasions of Privacy Look Like?

On 28 September 2023, the Australian Government released its response to the Review Report (Government Response).¹¹ The Australian Government agrees in-principle that a statutory tort for serious invasions of privacy should be introduced, based on the model recommended by the ALRC in its Report 123 (proposal 27.1).¹² The Australian Government stressed that the invasion of privacy needs to be serious.

The ALRC’s model contains the following features:

• The statutory tort for serious invasions of privacy is to be enacted by the Commonwealth in a Commonwealth Act;
• The plaintiff must provide that his or her privacy was invaded through (a) intrusion upon seclusion, or (b) misuse of private information;
• It must be proved that a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances;
• The tort should be confined to intentional or reckless invasions of privacy, not negligence;
• The invasion of privacy has to be ‘serious’;
• The plaintiff should not be required to prove actual damage; and
• The court must be satisfied that the public interest in privacy outweighs any countervailing public interest.¹³

The ALRC also recommended various defences, including:

• A defence of lawful authority;
• A defence where the conduct was incidental to defence of persons or property;
• A defence of consent;
• A defence of necessity;
• A defence of absolute privilege;
• A defence of publication of public documents; and
• A defence of fair report of proceedings of public concerns.¹⁴

Recommended remedies for a plaintiff include:

• Damages, including damages for emotional distress;
• Exemplary damages in exceptional circumstances;
• Account of profits;
• Injunctions;
• Delivery up and destruction or removal of material;
• Orders for apologies and correction; and
• Declarations.¹⁵

The Privacy Act Review Discussion Paper (Discussion Paper) identified four possible options for a tort for invasions of privacy. It was considered that the other options proposed in the Discussion Paper would be unsuitable to address the gaps in the law.

In designing its statutory tort, the ALRC Report 123 analysed torts in comparable jurisdictions, including New Zealand, Canada, the United States and the United Kingdom.¹⁶

Media organisations opposed the tort on the basis that current laws and complaint mechanisms sufficiently protect the privacy of individuals, that it would have a detrimental or ‘chilling’ effect on journalism in Australia and that it would not be within reach for many Australians due to high litigation costs.¹⁷

Where to Next?

It is increasingly likely that a federal statutory tort for serious invasions for privacy modelled on the ALRC Report 123 described above will be introduced. In terms of the timeframe, the Attorney-General’s Department has committed to providing the Australian Government with advice regarding the outcomes of further consultation in 2024, and the Australian Government will then further consider the proposal.

The Australian Government agreed to enact the new tort ‘subject to further engagement with regulated entities and a comprehensive impact analysis to ensure the right balance can be struck between privacy benefits for Australians and other impacts on regulated entities.’¹⁸ The Australian Government recognised concerns about the balance of prevailing laws adversely impacting public interest journalism and the need to protect public interest journalism.¹⁹ Therefore, the Australian Government recommended that further consultation be undertaken with media organisations on additional safeguards for public interest journalism and state and territories regarding possible implications for their courts and agencies. Such consultations will be led by the Attorney-General’s Department.²⁰

The media’s concerns could be addressed on the basis of the requirement for a plaintiff to satisfy the court that the public interest in privacy will outweigh any countervailing public interest, which includes freedom of expression, and freedom of the media, particularly to responsibly investigate and reports of matters of public concern and importance. Further, defences analogous to defamation defences, such as the defence of ‘fair report of proceedings of public concern’ which could be relied upon by the media, may be introduced. The new legislation may also incorporate other exceptions to protect media organisations.

Australia has a proud tradition of promoting freedom of speech while balancing the protection of people’s rights and reputations. The proposed reforms offer an additional layer of protection to individuals, which has not been seen before in Australia. It will therefore be critical to achieve the right balance between freedom of publication and individuals’ rights to privacy.