SUBMISSIONS - ISSUES PAPER

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Introduction

1 I refer to the Issues Paper concerning a proposed Commonwealth statutory cause of action for serious invasion of privacy.

2 By way of background, I attach a copy of the relevant chapter from the

Second Edition of my book ‘Defamation Law in Australia’ published October

2011.

3 As a result, this submission is necessarily brief.

The cause of action

4 While there are many laws that incidentally protect privacy in Australia, recent developments in technology have demonstrated that people need a clear understanding of the boundaries which protect privacy and a law that protects it directly.

5 A statutory tort of invasion of privacy should be capable of popular understanding and the remedies and process available should provide quick, just and cheap disposal of complaints.

6 Whether the cause of action is ultimately developed at common law or framed by statute, my view is that the cause of action should be based upon the law of trespass at common law. This action involves a trespass, or breach of a plaintiff’s rights, by which damage is presumed. The key is to define the nature of the right trespassed such that the community would accept that damage should be presumed.

7 The Privacy Act 1988 protecting data privacy has been in place for the Commonwealth public sector since 1988 and for most public and private sectors since 2001. There is a common understanding of what privacy means under the Privacy Principles devised for that Act and involves an understanding of the concepts of collection, storage and use/disclosure of personal information.

8 Media organisations are not bound by the provisions of the Privacy Act, but are required to show that they meet ethical standards to comply with the principles of privacy. Accordingly, relevant journalists’ Codes of Conduct require respect for a person’s privacy and the nature of privacy is understood and observed in the conduct of journalism. There is no such ethical standard

binding users of the Internet.

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The nature of the breach

9 There would be little or no demand for a law protecting privacy if the community did not have an understanding of what ‘privacy’ means in normal circumstances, and it is people’s experience that privacy (theirs and others) is increasingly invaded or under threat of invasion particularly in the online environment. It is a concept like defamation that in my view, should be left to community standards to develop. This is reflected in the Australian Law Reform Commission’s recommendation that the appropriate standard is a

‘reasonable expectation of privacy’.

10 There is a commercial and powerful value in private, personal information.

In many cases, we consent to the giving of that information to selected persons such as friends and employers for certain purposes. When private information begins to be traded by others for commercial gain or distributed in the exercise of power or with malice, community values are breached and ordinary decent members of the community would consider such breach

‘wrong’ or tortious.

11 I do not think that it should be necessary for the plaintiff to show that the defendant’s act or conduct is ‘highly offensive’ to a reasonable person of ordinary sensibilities. The seriousness of the invasion should depend on the objective test of the ‘reasonable expectation of privacy’ in any given circumstances. It overburdens the test to add the element that the defendant’s conduct be ‘highly offensive’ which adds, in effect, an element of malice to the cause of action and places a high onus on the plaintiff.

12 The concepts of collection, storage, use and disclosure of private information are useful in determining the act or conduct by the defendant which amounts to the breach.

Justifiable breach

13 Under the cause of action for trespass, the act or conduct of the defendant is sufficient to demonstrate the breach itself without considering the defendant’s fault.

14 The usual defences for a cause of action in trespass include mistake, consent, legal authority, necessity etc.

15 Whether the ‘public interest’ should be a consideration in terms of the cause of action (as recommended by the ALRC or NSWLRC) or constitutes a defence (as recommended by the VLRC), the reality is that the usual application will be for an interim injunction to restrain the breach and therefore, whether it be a defence or not, the public interest will be a relevant consideration for the court’s discretion on the balance of convenience.

16 The argument appears to be made that there is public interest in freedom of expression per se. However, the media accept that freedom of expression

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should be restricted where its exercise might breach a person’s privacy, unless it is in the public interest to do so.

17 The argument that freedom of expression itself somehow trumps the freedom from invasion of privacy is an argument without real substance. It is superficial to suggest that freedom of speech should operate in all circumstances, and in our community, that is simply not so and expressly acknowledged by the media under ethical standards not to be so. Freedom of expression must give way to other freedoms when circumstances dictate.

18 The circumstances in which the public interest will provide justification for a breach of a person’s privacy will generally be very limited. This is because the threshold test of what the community expects as being private will determine the relevant public interest in the sense of the public good or the

‘common weal’. It is often observed that the expression ‘public interest’

does not mean the interest of the public or the public curiosity. It is used in the paternal sense of what is regarded by the community as being for the common interests of the public over the private interests of the individual.

19 In my view, the justification of a breach of privacy in the public interest should be a defence, in traditional pleading terms, by way of confession and avoidance to an alleged trespass. Conceptually, it is better understood as a defence of necessity, where the needs of the public to know the private information outweighs or overrides the individual’s right to privacy.

Negligence

20 The issue is raised as to whether a person’s negligence would be sufficient excuse for a breach of privacy. The answer to this should be in the negative for the reason that where it is determined there is a reasonable expectation of privacy, negligence should not be a defence, if one applies the common standard of a reasonable person in the shoes of the defendant. It is no excuse for a defendant honestly, but not reasonably, to breach another person’s privacy. In other words, people should take reasonable care not to breach other people’s privacy.

Remedies

21 In many cases involving breaches of privacy, damages will not be an adequate remedy as the use or disclosure of the private matter will make it impossible to provide redress to a plaintiff in the sense of putting the plaintiff in the position he/she was in prior to the breach. Plaintiffs require the assistance of equitable remedies, injunction or account of profits, as a result.

22 If the proposed statutory cause of action is framed as a statutory tort of trespass, where damage is presumed, injunctions are more appropriate to prevent the breach of privacy by reason of the fact that damages will not be an adequate remedy. An account of profits is appropriate where the breach

has already occurred and the defendant has profited from committing the

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breach. Other tortious remedies for trespass would include aggravated damages for malicious conduct which increases the damage caused, or

exemplary damages as a deterrent to the wrongdoer.

Courts

23 In terms of whether courts should regulate breaches of privacy, the question is whether courts can provide parties with reasonable access to justice. By this I mean that access should not be denied because of the delay or substantial cost involved in bringing or defending proceedings.

24 In my view, the statutory cause of action for breach of privacy should be part of the jurisdiction of the Federal Court which is ideally placed to determine disputes across state and territory borders by publication in the national media or over the internet. Whether the determinations would be made by the Court itself or by a specialist tribunal set up for that purpose would be a matter for the administration of the Court.

Patrick George

27 October 2011

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