In Victoria Park Racing v Taylor, the majority of the High Court held that Australian courts could not provide protection ‘on the mere ground of invasion of privacy,’ and accordingly, development of civil remedies for privacy invasion was ‘largely stillborn’ in succeeding years. However, in ABC v Lenah Game Meats, the High Court evinced a newfound willingness to consider the development of a cause of action in privacy. In particular, Gummow and Hayne JJ indicated that ‘Victoria Park does not stand in the path of … such a cause of action,’ Gleeson CJ asserted that ‘the law should be more astute’in protecting privacy interests, and Callinan J opined that ‘the time is ripe’ for consideration of an invasion of privacy tort.
It could be argued that since Lenah, Australian courts have afforded privacy protection to some degree as two intermediate-level court decisions have recognised invasion of privacy torts, and the scope of the breach of confidence doctrine has expanded to provide extensive relief against impartation of private information. However, as I will discuss, ultimately the significant gaps, issues and uncertainty associated with existing protections are problematic. The judiciary has not been sufficiently bold in the development of a cause of action in privacy. It follows that the appropriate avenue to develop an Australian cause of action in privacy is through the introduction of a statutory tort.
BOLDNESS OF AUSTRALIAN COURTS POST-LENAH:
Development of a Privacy Tort
In Grosse v Purvis, a woman endured years of intentional harassment, stalking and abusive phone calls from a former lover. Consequently, she sustained post-traumatic stress disorder and her capacity to work was substantially undermined. In this case, Skoien J made passing comments to the effect that a ‘bold step’ should be taken to recognise ‘a civil action for damages based on the actionable right of an individual person to privacy’. To this end, His Honour proposed that a wrongful intrusion tort should be available where a willed act of a defendant intrudes upon the privacy or seclusion of a plaintiff in a manner that would be considered highly offensive to a reasonable person of ordinary sensibilities, and thereby causes the plaintiff mental, emotional or psychological detriment or hinders their freedom. In many respects, this test bears resemblance to that of the intrusion upon seclusion tort present in the US. Skoien J’s wrongful intrusion tort, if affirmed by appellate courts, would constitute a marked development in the law as it allows aggrieved parties to seek redress for invasion of privacy via a standalone tortious cause of action.
Similarly, the consideration of a tort of wrongful disclosure of private information in Doe v ABC could be regarded as an intrepid step in the development of a cause of action in privacy. Effectively, this case involved the publication of details about a rape victim and her assailant, contrary to provisions of the Victorian Judicial Proceedings Act 1958. Having regard to the ‘rapidly growing trend’ apparent in Lenah, Grosse and UK authorities, Hampel J took the ‘next incremental step in the development of protection against … breach of privacy.’ Her Honour’s model for wrongful disclosure of private information requires private information, unjustified publication and an absence of any overarching public interest in disclosure. This suggested test is relatively consistent not only with similar actions that have arisen in the UK and New Zealand, but also with the US tort of ‘publicity given to private life.’ Hampel J’s recognition of a tort of wrongful disclosure of private information reinforces the argument that some lower-level Australian courts have exhibited boldness in developing a cause of action in privacy.
However, while privacy torts have evidently been recognised in two lower-level Australian cases, no appellate court has corroborated the existence of a privacy tort. Furthermore, the position with respect to the existence of a common law tort of privacy in the inferior courts is similarly shrouded in uncertainty: the matter has been described in cases as ‘arguable,’ ‘a little unclear,’ and subject to ‘further development in the law.’ In other cases, judges have expressly indicated that a generalised tort of privacy is ‘not yet recognised in Australia’ or that the weight of authority explicitly controverts such a proposition. This suggests that the obiter dicta comments in Doe and Grosse are disputable at the very least. As such, development of a cause of action through tort law has arguably been manifestly inadequate and uncertain.
Breach of Confidence
Consideration of the equitable doctrine of breach of confidence begs the question of whether the courts can adequately safeguard privacy interests incrementally via pre-existing actions, without formulating a general overarching tort. In short, the elements of breach of confidence include confidential information, disclosure in circumstances importing an obligation of confidence, and unauthorised use of the information causing detriment. Breach of confidence has evolved from its initial emphasis on confidential relationships to embrace concepts largely predicated upon privacy such as human autonomy and dignity. Accordingly, the doctrine now encompasses non-confidential private information, and no longer requires a pre-existing confidential relationship. Moreover, the equitable action of breach of confidence provides extensive remedies for the purposes of privacy protection. In Wilson v Ferguson substantial compensation and an injunction were available against a defendant who published explicit ‘revenge porn’ footage of his ex-girlfriend on Facebook. Furthermore, the breach of confidence doctrine may offer a remedy where tort law cannot. For instance, in Giller v Procopets damages were awarded on the basis of mental distress incurred after an ex-boyfriend distributed private sex-tapes.
However, the breach of confidence doctrine in Australia has not yet been subject to ‘a sustained and deliberate transformation into an action for breach of privacy,’ which occurred with regards to the breach of confidence action in the UK. In this sense, Australian courts have arguably not been as bold or transparent as the UK courts in developing a cause of action for privacy via the breach of confidence route. A cause of action in breach of confidence also does not accommodate for intrusions upon personal space, thereby creating a gap in protection for non-informational invasions.
In addition, many commentators suggest that incremental development of privacy protection through breach of confidence and other existing actions is problematic as it may lead to a strained piecemeal-like approach. In essence, actions such as breach of confidence were initially crafted to protect non-privacy interests. For the court to depart from the traditional bases of these actions could lead to obscure and fragmented law as well as unprincipled development of the law. In turn, this may generate uncertainty, thus making it difficult for individuals to organise their affairs.
Therefore, in light of the significant gaps, issues and uncertainty surrounding existing common law privacy protections, evidently the courts have not been sufficiently bold in developing an appropriate cause of action in privacy.
APPROPRIATE LEGAL PATH FOR CAUSE OF ACTION IN PRIVACY
Ultimately, the most promising legal avenue for the development of an Australian cause of action in privacy would be by enacting a statutory tort. Considering the uncertainty surrounding the status of a privacy tort within Australia, and that appellate courts have not yet accepted the obiter dicta in Grosse and Doe, statutory intervention is nothing short of essential for the purpose of safeguarding privacy rights. The development of a privacy tort as an action in its own right is to be preferred over fragmentation and straining of existing common law actions.
Justification for Statutory Cause of Action
Certainty/Clarity
Proponents of the common law approach commonly assert that the concept of privacy is inherently vague and imprecise, and that judges would still be required to balance evidence and make judgments on a case-by-case basis so therefore clarity would not be improved. However, a clear and detailed statutory framework could be included to help guide the courts. For instance, this could be achieved by incorporating a list of the types of invasions and remedies that are captured by the relevant legislation, thus helping to clarify the scope of privacy protection. This would enhance certainty and clarity to a significant degree.
Practicality
Another issue that is raised by opponents of a statutory privacy tort is that its implementation might be impractical as it could undermine law enforcement and security operations or clash with freedom of speech and freedom of the press. While there is some credence to this viewpoint, such objections could easily be ameliorated by the implementation of defences that take into account countervailing public interest considerations.
Likewise, it is also difficult to argue that a statutory cause of action would be impractical simply because it would be difficult to enact uniformly nationwide. To the contrary, enactment of a privacy tort by statute would likely be quicker and more efficient than common law development as Parliament would not be required to expand the law incrementally and would not be bound by precedent.
Additionally, introduction of a cause of action by elected parliamentarians would be more democratic compared to judicial development.
Unpredictability
Finally, to contend that a statutory tort may give rise to unintended circumstances or become out-dated is largely unjustifiable. Flexible guidelines that are adaptable to technological and social change and are subject to a degree of judicial discretion would surely mitigate such a concern.
The Specifics of the Statutory Tort
In order to avert inconsistency and ‘forum shopping’ between jurisdictions, it is essential that the statutory tort of privacy be introduced uniformly nationwide. The tort should only be applicable to natural persons and not corporations, consistent with the majority view in Lenah and ‘individual notions of autonomy, dignity and freedom.’
It is imperative that the tort encapsulates two separate limbs such that a claim can be based upon either wrongful intrusion or wrongful publication of private information. Having these two limbs would encourage courts to further advance the tortious developments that were foreshadowed in Doe and Grosse, while also ensuring that the cause of action is not unduly vague or imprecise and that courts can attach separate conditions to different circumstances.
The best possible approach would be for the two limbs to be formulated having regard to a model propounded by Professor Des Butler absent the requirement that the intrusion or publicity be considered highly offensive to a person of reasonable sensibilities. The limb of unreasonable intrusion upon privacy would be established if there is an intentional intrusion upon another person in circumstances where there is a reasonable expectation of privacy. The limb relating to disclosure of private facts would be satisfied if there is a reasonable expectation of privacy and the plaintiff incurs emotional stress, embarrassment or humiliation from the publication. In not imposing a stringent threshold requirement of objectively high offensiveness, this approach aligns more with the tests adopted in Doe and Giller rather than Grosse. Ultimately, the absence of such a requirement is well-founded and justified as ‘highly offensive’ is an inherently vague concept, overlaps with ‘reasonable expectation of privacy’ and fails to consider cases where conduct lacks a personal dimension.
It should also be noted that under this approach, proof of fault is only required for the unreasonable intrusion upon privacy limb of the tort, pursuant to ALRC, VLRC and NSWLRC recommendations. This coincides with the approach in Doe in that it affords an action to plaintiffs even where publication is negligent rather than wilful. If Jane Doe had been denied an action in that case for lack of wilful breach this would have ‘severely curtailed the protection for privacy that the law should provide for.’
In regards to defences, it is recommended that the VLRC approach should be followed insofar as it affords defences of public interest, privilege, fair comment and consent. This would effectively broaden the scope of potential liabilities, shifting the burden to the defendant to establish that their interference is warranted for reasons such as public interest or consent. Finally, pursuant to ALRC and NSWLRC recommendations, courts should be empowered to grant the remedy most appropriate in the circumstances, such as damages, an account of profits, injunctions, apology or correction orders, or a declaration, thus permitting flexibility.
Ultimately, the statutory tort proposed, if implemented in the manner suggested, would be likely to substantially broaden and enhance the scope of Australian privacy protection that is afforded to aggrieved individuals.
Australian Privacy Law Developments 