The two main changes the ALRC calls for are:
- a statutory cause of action in tort for "serious invasions of privacy"; and
- for the new tort to be contained in a new Act rather than in the Privacy Act 1988 (Cth).
The ALRC says the reason for wanting a new Act is because the Privacy Act "largely concerns information privacy, while the new cause of action is designed to remedy a number of different types of invasions of privacy, including physical invasions of privacy".1
Unlike the Privacy Act, the ALRC says that the new statutory cause of action would apply to any person or entity that seriously invades the privacy of a person in the circumstances set out in the Act. It would make it possible for a person to sue federal and state government agencies as well as business, the media and individuals for serious invasions of privacy.
The ALRC says that the introduction of these protections will give Australians the kind of privacy protections currently enjoyed by people in UK, New Zealand and Canada.
The proposals in the discussion paper are based on several key principles, including the need to balance privacy with other fundamental interests particularly freedom of expression, the desirability of certainty and consistency in the law across Australia and the need for adaptability to technological change.
The ALRC proposes that the new Act provides broad examples of invasions of privacy and guidance on what would constitute an invasion of privacy. The Australian Privacy Foundation said "The list should be clearly identified as non-exclusive and non-exhaustive, i.e. courts should be able to deal with serious invasions of privacy that fall outside the list."2
Some of the things that might appear in the list as an invasion of privacy are:
- an interference with an individual's home or family life;
- an individual is subjected to unauthorised surveillance;
- an individual's correspondence or private written, oral or electronic communication is interfered with, misused or disclosed; or
- sensitive facts relating to an individual's private life are disclosed.3
SERIOUS INVASIONS OF PRIVACY
The ALRC has proposed that the new tort has five elements:
- any breach of privacy by:
||intrusions upon the plaintiff's seclusion or private affairs; or
||misuse or disclosure of private information about the plaintiff;
- intentional or reckless invasions of privacy;
- the plaintiff to have had a reasonable expectation of privacy in all the circumstances;
- invasion to be "serious";
- the plaintiff's interest in privacy to outweigh the defendant's interest in freedom of expression.4
The ALRC proposes a limitation period of one year from the date a complainant became aware of the invasion, with the discretion for a court to extend the period up to three years from the date the invasion occurred.
The ALRC proposes that courts be granted the discretion to award a range of remedies – monetary and non-monetary – to complainants who successfully bring an action for serious invasion of privacy. The range of remedies 5 includes:
- compensatory damages: courts be empowered to award compensatory damages for loss suffered to a plaintiff, including damages for emotional distress.
- exemplary damages: this head of damage focuses on the defendant's conduct rather than the complainant's loss. It may be appropriate where the defendant's conduct was an outrageous and contumelious disregard of the plaintiff's rights. An award of exemplary damages is intended to punish the defendant and deter similar conduct in the future.
- cap on damages: this would apply for all damages other than for economic loss. This means that the total amount of general damages for non-economic loss and exemplary damages awarded will be capped at the same amount as the cap on damages for non-economic loss in defamation awards.
- accounts of profits: a gains-based remedy of an account of profit is intended to deter defendants who are commercially motivated to invade the privacy of another for profit, by removing any unjust gain made from a serious invasion of privacy.
- damages based on notional licence fee: courts could award damages assessed on the basis of a notional licence fee in respect of a defendant's conduct, meaning damages would be assessed and would require the defendant to pay to the complainant any sum that the complainant would have received if the defendant had asked prior permission to carry out the activity that invaded the complainant's privacy.
- injunctions: this would prevent or restrain the publication of private information.
- delivery up, destruction or removal of material: this would apply where a defendant has obtained private information about a complainant and has exhibited an intention to disclose that information to a third party. This would allow the courts to be able to order the delivery up and destruction or removal of material in the event of serious invasion of privacy.
- correction and apology orders: an order for a defendant to publish, in appropriate terms, a correction or to issue or publish a public statement or apology for committing an invasion of privacy against the complainant.
The ALRC has asked the public for submissions on its discussion paper to be submitted by 12 May 2014.
It will be interesting to see how far the ALRC's proposals go as Federal Attorney General Senator George Brandis has stated that, "the Government has made it clear on numerous occasions that it does not support a tort of privacy"6 .
Harold O’Brien (North Ryde)
David Thompson, Melbourne
Richard Williams, Melbourne
1 Serious Invasions of Privacy in the Digital Era Discussion Paper, ALRC, March 2014, pg 53
2 Australian Privacy Foundation, Submission 39, Serious Invasions of Privacy in the Digital Era Discussion Paper, ALRC, March 2014, pg 75
3 Serious Invasions of Privacy in the Digital Era Discussion Paper, ALRC, March 2014, pg 75
4 Serious Invasions of Privacy in the Digital Era Discussion Paper, ALRC, March 2014, pg 62-63
5 Serious Invasions of Privacy in the Digital Era Discussion Paper, ALRC, March 2014, chapter 11 – Remedies and Costs, pages 157-176
6 'Brandis rejects privacy tort call', Chris Merritt, The Australian, 4 April 2014