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A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy
Submissions to the Attorney-General’s Department
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Introduction
Maurice Blackburn is grateful for the opportunity to provide comments to the government about whether the Commonwealth should introduce a statutory cause of action for the invasion of privacy.
We support the introduction of such a cause of action. In our view, the current legislative framework for the protection of privacy is insufficient and the recent alleged privacy breaches by Sony[1] and Dell Australia[2] emphasise the need for government action.
In summary, we consider that the proposed statutory cause of action should have the following principal features:
1. Prohibited conduct
We recommend that the conduct constituting an invasion of privacy be defined as:
the disclosure or publication of private material without the consent of the person or persons to whom the information relates
where private material is:
(a) information that a reasonable person would expect to be private; or
(b) material (including images, sounds or footage) obtained in or from a setting that a reasonable person would expect to be a private setting.
2. Defences
A person should not be taken to have committed an invasion of privacy if the disclosure or publication of the private information was:
(a) required by law;
(b) subject to a privilege protected by law (for example, parliamentary or legal professional privilege); or
(c) in the public interest.
3. Remedies
A natural person whose privacy has been invaded should be able to seek the following remedies:
(a) damages;
(b) an account of profits;
(c) an injunction;
(d) a declaration;
(e) an order for the delivery up and destruction of material.
To be clear, all remedies for an invasion of privacy should only be available to natural persons and not to corporations.
Further explanation of our position is provided below in our responses to the specific questions posed by the Department of the Prime Minister and Cabinet.
Maurice Blackburn’s submissions
1. Do recent developments in technology mean that additional ways of protecting individuals’ privacy should be considered in Australia?
1.1 Maurice Blackburn considers that the law in Australia currently provides inadequate protection of individuals’ privacy.
1.2 Technological developments continually change the way we store and share information and the circumstances in which private information can be disseminated by third parties without consent concomitantly expand. This is of particular concern in a context where a significant proportion of our daily activities are conducted on the internet, from financial transactions to social interactions. Such developments are a source of convenience and opportunity, but they have also led to greater potential for invasions of individuals’ privacy.
1.3 Maurice Blackburn submits that the law must keep pace. The government should legislate to improve the protection of our privacy. This should include a statutory cause of action for invasion of privacy as a first step towards this improvement. Additional ways of protecting individuals’ privacy beyond a statutory cause of action should also be considered.
2. Is there a need for a cause of action for serious invasion of privacy in Australia?
2.1 Yes. The current legal framework in Australia is insufficient. Individuals can suffer serious invasions of their privacy and not have any satisfactory recourse under Australian law. The detailed analyses of this issue by the Australian Law Reform Commission, the Victorian Law Reform Commission and the New South Wales Law Reform Commission demonstrate that there is a compelling case for the introduction of such a cause of action in Australia.
2.2 As noted in the Issues Paper, the right to privacy is enshrined in Article 17 of the International Covenant on Civil and Political Rights (ICCPR), an important treaty to which Australia is a signatory. The right to privacy is also contained in the Universal Declaration of Human Rights.[3]
2.3 The introduction of a cause of action for serious invasions of privacy would enhance our compliance with these international human rights obligations.
3. Should any cause of action for serious invasion of privacy be created by statute or be left to development at common law?
3.1 A cause of action for invasion of privacy should be created by a Commonwealth statute.
3.2 The creation of a cause of action for invasion of privacy through the common law would require the litigation of appropriate test cases before the inferior courts at first instance and, ultimately, the High Court. This would limit the development of the cause of action to particular factual scenarios, with principles of general application taking significant time to develop. As demonstrated by the High Court decision of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[4], the judiciary has been hesitant to step into an area more appropriately determined by the legislature.
3.3 It is true that inferior courts in Australia have recognised a tort of invasion of privacy. In particular:
(a) in Grosse v Purvis[5], Senior Judge Skoein of the District Court of Queensland held that a plaintiff who was persistently and intentionally stalked and harassed by the defendant for six years was entitled to damages for invasion of her privacy; and
(b) in Doe v ABC & Ors[6], Judge Hampel of the County Court of Victoria held that a sexual assault victim was entitled to an award of damages for the breach of privacy which occurred when, contrary to s 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic), the ABC published her name and the fact that her former husband had been convicted of raping her.
3.4 However, since these decisions little progress has been achieved, and no superior court of record has recognised such a tort[7].
3.5 Maurice Blackburn submits that the legislature should expedite the development of the cause of action by articulating its essential elements. It is appropriate that the judiciary then develops the detail over time in response to the particular factual scenarios that are placed before it.
3.6 We consider that enshrining the action in legislation will provide a degree of certainty and national consistency that the common law would be slow to match. In addition, access to justice would be improved. An individual may be deterred from commencing proceedings for an invasion of privacy in circumstances where the law is unsettled. This is particularly significant where the breach is egregious but does not give rise to damage sufficient to justify the expense and risk of litigation with multiple appeals, especially when the available remedies are, themselves, uncertain.
3.7 We note that the introduction of two separate causes of action has been discussed – one targeting the misuse of private information (information privacy) and the other targeting infringements of a person’s spatial privacy (spatial privacy).
3.8 Maurice Blackburn supports improved protection of both types of privacy. We note that some protections already exist in respect of information privacy through legislation such as the Privacy Act 1988 (Cth) and the Health Records Act 2001 (Vic), but there is a significant imperative for additional protections in respect of spatial privacy.
3.9 However, Maurice Blackburn considers that an improvement can be achieved through a single cause of action (see, for example, our proposed definition of ‘private material’). The court is the appropriate arbiter of the factors relevantly considered and the remedies appropriately awarded in each case.
3.10 By creating a statutory cause of action, the legislature will be able to define situations where a right to privacy exists but also, by association, where there is no such right. Maurice Blackburn considers that there are limited circumstances in which the legislature may wish to expressly preclude the existence of such a right.
3.11 For example, the statutory cause of action may preclude a right to privacy in respect of the identity of a witness to a car accident who has provided a report to the police. We note that the common practice of the Victoria Police in these circumstances is to refuse to release such information. This causes considerable difficulty for victims of road accidents who may be seeking compensation.
4. Is ‘highly offensive’ an appropriate standard for a cause of action relating to serious invasions of privacy?
4.1 Maurice Blackburn considers that ‘highly offensive’ is too vague and would unnecessarily require a subjective value judgment in the assessment of whether a person can bring proceedings. It may unduly limit the effectiveness and accessibility of any cause of action.
4.2 Maurice Blackburn considers that a breach of privacy should be actionable without proof of damage, and that it is best left to the court to determine the factors that are relevant to each matter and reflect the seriousness of those factors in the remedies awarded.
5. Should the balancing of interests in any proposed cause of action be integrated into the cause of action or constitute a separate defence?
5.1 To the extent that it is necessary to balance an individual’s right to privacy with broader public interests, Maurice Blackburn considers that the appropriate approach is to provide a public interest defence. The court is well placed to balance interests when considering defences and damages.
5.2 The VLRC’s report notes that the balancing of interests arises at the defence stage under Canada and New Zealand’s privacy laws. This approach ensures that the defendant carries the burden in relation to public interest considerations. A similar approach has been used for other statutory causes of action in Australia. For example, under national uniform defamation laws, one defence is that the matter was a fair report of proceedings of public concern.[8]
5.3 Similarly:
(a) under the Racial Discrimination Act 1975 (Cth), it is for the defendant to show that their conduct should be exempted because it has been done reasonably and in good faith for particular specified purposes[9]; and
(b) under the Racial and Religious Tolerance Act 2001 (Vic) the defendant must demonstrate that conduct which would otherwise be racial or religious vilification was justified because it was in the public interest.[10]
6. How best could a statutory cause of action recognise the public interest in freedom of expression?
6.1 The public interest should be recognised as a defence.
6.2 Maurice Blackburn notes and supports the VLRC’s submission that not all matters of interest to the public are matters of public interest that ought to deprive a person of their right to privacy. A person should not be deprived of their right to privacy simply to satisfy the curiosity of the public.[11]
6.3 Clearly, there is a legitimate public interest in maintaining freedom of expression to the extent necessary in a free and democratic society to advance creativity, innovation and public debate.
7. Is the inclusion of ‘intentional or reckless’ as fault elements for any proposed cause of action appropriate, or should it contain different requirements as to fault?
7.1 We do not consider that a fault element is necessary.
7.2 The importance of the security of private information justifies the imposition of a positive obligation to maintain it. The public interest defence will be broad enough to ensure that, where the conduct pleaded was reasonable, a finding of liability can be avoided.
8. Should any legislation allow for the consideration of other relevant matters, and, if so, is the list of matters proposed by the NSWLRC necessary and sufficient?
8.1 We do not consider it necessary for the legislation to provide a list of matters for the court to consider. The nature and effects of breaches of privacy may differ, as will the public interest in seeking to deter such breaches. The court is capable of considering these particularities and reaching conclusions about their relative importance in a manner that reflects community standards. We consider the court to be well-placed to ensure such principles are developed with sound legal reasoning without the need for guidance.
9. Should a non-exhaustive list of activities which could constitute an invasion of privacy be included in the legislation creating a statutory cause of action, or any other explanatory material? If a list were to be included, should any changes be made to the list proposed by the ALRC?
9.1 We consider that a statutory list of considerations, even if inclusive, may have the practical effect of narrowing the range of concerns that the court, legal practitioners and parties to litigation will consider. Further, given the rapid pace of technological innovations, it will be difficult for the legislature to anticipate the types of activities that will cause public concern in the future. The court commonly interprets legislation in line with developing or changing community attitudes and concerns. A list of activities will be at best unnecessary and at worst will hinder the court’s ability to do so.
10. What should be included as defences to any proposed cause of action?
10.1 Maurice Blackburn supports the availability of a number of defences. An exhaustive list of defences should be available under statute. These should include that:
(a) the conduct was required by law;
(b) the publication of the information was privileged; and
(c) the publication was in the public interest.
11. Should particular organisations or types of organisations be excluded from the ambit of any proposed cause of action, or should defences be used to restrict its application?
11.1 Maurice Blackburn does not support the exclusion of any organisations or other bodies from the application of the statutory cause of action.
11.2 In particular, Maurice Blackburn is concerned to ensure that employers should not enjoy any exclusion from the statutory cause of action.
11.3 Section 7B of the Privacy Act 1988 (Cth) exempts employee records of private sector employees. That exemption has been criticised, including by the Australian Law Reform Commission (see Australian Privacy Law and Practice Report 108 (2008)). It is further noted that the Fair Work Act 2009 (Cth) does not have express provisions protecting employees from invasions of privacy by employers.
11.4 Maurice Blackburn considers that sufficient protections for media and advocacy organisations would be available through the proposed public interest defence.