Submission of Professor Barbara McDonald, Faculty of Law, University of Sydney, November 2011.

This submission addresses the questions raised in the Issues Paper entitled “A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy”released by the Department of the Prime Minister and Cabinet in September 2011.

The key and threshold question raised by the Issues Paper is whether Australia should enact a statutory cause of action for invasion of privacy. If that is answered in the affirmative, there are many consequential questions as to the content of that statutory right and the remedies that might follow a breach of it.

Introduction:The context of the threshold question.

The Issues Paper sets the current privacy debate in the context of the ever- increasing technological developments that have not just led to an explosion of new means of communication for the media industry, beyond the well-established means of print, radio and television, but also empowered business and government with unprecedented means of collection and distribution of data, and every individual in the world to become, instantly and easily, a publisher to the world. For the ordinary person, with the internet and digital technology, a computer or even the smallest mobile phone with a camera is a means to world-wide oral, visual and written communication. Any attempt to legislate against invasions of privacy must therefore be seen in a context that makes preventative measures largely but not wholly futile.

There is another context though that should be remembered whenever we are talking about monetary remedies for the intangible consequences of invasions of rights such as the right to privacy. Those consequences commonly involve distress, offence, loss of dignity or embarrassment.[1] The other important context is the large-scale reduction of rights to compensation, by a nation-wide program of tort reform, for the intangible consequences of physical (or psychiatric) injuries caused by negligence, even gross and highly culpable negligence. Most states and territories have significant thresholds and caps on the recovery of damages for pain and suffering, loss of enjoyment of life and amenities of life, which require a claimant to prove that he or she has suffered damage beyond a high percentile when compared with the most serious possible case. Those below that threshold get nothing for their pain and suffering, even though their suffering, would, to the ordinary person in the street, seem significant. Personal injury lawyers tend to be seen as self-serving when they argue that tort reform has gone too far, but they can put up numerous examples of claimants whose lives and futures have been severely disrupted and handicapped by injuries caused by another’s fault, yet are unable to recover anything or anything significant in the way of redress for their ongoing distress. Unfortunately this situation is widely unknown to most people in the community until they or a loved one discovers the truth by bitter experience. Any consideration or enactment of a right to monetary damages for distress and the like caused by an invasion of privacy must be seen against the backdrop of what we allow to those who are distressed by physical injuries wrought by another.

Another important context of course is the fundamental democratic notions of freedom of speech and freedom of the press. Not an absolute freedom, but one that, like a right to privacy, must be balanced with other interests such as national security and law enforcement. Freedom of the press is a cornerstone of our western –style democracy and must be guarded and promoted if it is to survive calls for increasing governmental regulation and censorship of the media.

  1. Issues Paper Question 1: Do recent developments in technology mean that additional ways of protecting individual’s privacy should be considered in Australia?

Submission: Yes. Existing legislation such “Listening Devices” Acts, “Surveillance Devices” Acts etc need to be updated, made uniform throughout Australiaand broadened to reflect technological advances in communications and surveillance that have made collection, interception and disclosure of private information more easily achieved.

It may be appropriate also to provide for a civil action for breach of the statute or, instead, the enforcement may be through the criminal law, with victims free to seek compensation as victims of crime in the usual way.

  1. Issues paper Question 2:Is there a need for a statutory cause of action for serious invasion of privacy?

Submission: My submission is that there is not currently a need for a statutory action and that many calls for a statutory action are based on a misunderstanding or incomplete knowledge of the current state of the law. For example, even the Issues Paper when discussing the “Present State of the Law” on page 13 omits any reference to the equitable action for breach of confidence or wrongful disclosure or private information and cases such as Giller v Procopets ([2008] VSCA 236) where this has been enforced.

In my opinion, the legislature should rather do two things:

1. Ensure that existing legislation is updated and broadened to reflect technological advances in communications and surveillance that have made collection, interception and disclosure of private information more easily achieved. It may be appropriate to provide for a civil action for breach of the statute or, instead, the enforcement may be through the criminal law, with victims free to seek compensation as victims of crime in the usual way.

2. Enact a statutory action for harassment, similar to the protection from Harassment Act 1997 in the United Kingdom, to provide redress for a serious incident or course of conduct which harasses a person such as by continued surveillance and other conduct which falls short of the existing law of trespass or which would not already be preventable by an apprehended violence order. This legislation has most recently been used by the mother of actor Hugh Grant’s baby to obtain an injunction against paparazzi harassing her (Hong & anor v XYZ and anor, 18 November, 2011, Tugendhat J,[2011] EWHC 2995).

I now comment and respond to the reasons commonly given in support of a statutory action for invasions of privacy:

  1. “There is no general right of privacy in Australian law”.

As a simplistic and literal statement, this remains as true today as it did in 1937 when the High Court judges made the statement in Victoria Park Racing v Taylor, even though the High Court in ABC v Lenah Game Meats in 2001 held that the earlier case did not stand in the way of the development of such a right by the common law.

But it would be wrong to read this statement as meaning that the common law provides no protection of privacy. There is in fact extensive, albeit incomplete, protection under the current law. By trespass and nuisance, the law provides significant protection to property- based privacy and, by the equitable action of breach of confidence, it provides effective protection against the disclosure of all forms of private information, whether hard copy or electronic, visual, oral or written.

In addition a wide range of statutes provide for protection of personal information and prohibit invasions of privacy in telecommunications and by other technological means.

It is notable that the three examples of invasions of privacy given by the ALRC on page 128 of its Report “For Your Information: Australian Privacy and Practice (ALRC Report 108) as intended to fall within its recommended statutory action would already ground an action under the common law or be in breach of existing legislation.

  1. “A broad statutory action would fill the gaps in the existing protection of privacy under the common law and current statutes”.

This is true, but in my opinion the disadvantage is that it would do much more than just fill the gaps. It would take over as the primary and cover-all basis of recovery, swamping existing protections and exclusions, and turning the development of the law into an exercise of statutory interpretation rather than the development of principle on a case by case basis as society develops.

Particularly if the aspects of privacy intended to be covered by the legislation were left undefined, it would inevitably open up the development of privacy protection to new situations and aspects or instances of privacy which the legislature did not in fact intend to cover.

I think that the gaps could be filled by specific legislation as suggested above to deal with harassment, and by updating and unifying existing legislation.

  1. Issues Paper Question3: Should any cause of action for serious invasion of privacy be created by statute or be left to development at common law

Submission: As set out above, my preference is for more specific gap-filling legislation than a broad based statutory action.

The three Australian law reform bodies have supported the statutory route over the common law partly because it is said that a statutory action would allow a more flexible and more precisely targeted approach to remedies than is available under the common law, which is governed by precedent. Yet the NSW and ALRC proposals propose a wide range of remedies to be left to the court’s discretion, so it is difficult to see how these remedies are in fact more precisely targeted to any particular problem. Until there is a body of precedent interpreting and applying the statutory action, parties will have little if any idea as to what remedies may be awarded for or against them.

  1. Issues paper Question 4: Is “highly offensive” an appropriate standard for a cause of action relating to serious invasions of privacy?

I strongly agree that any statutory action must be limited to the most egregious cases of invasion of privacy, viewed objectively. Both of the terms “serious’ and the “highly offensive” limitation should both be included in the wording of the statutory action. Otherwise, a statutory action would encourage claims for trivial incidents and for incidents which a reasonable person would not regard as serious invasions of privacy.

  1. Issues paper Question 5: Should the balancing of interests in any proposed cause of action be integrated into the cause of action ( NSW and ALRC) or constitute a separate defence (VLRC.

I strongly support the NSW/ALRC stance that the balancing of freedom of speech and other interests must take place at the initial stage of deciding whether a person has a reasonable expectation of privacy as well as at the later stage of deciding whether the incident in the circumstances amounted to a serious invasion of privacy. I support the NSW approach that the claimant should bear the onus of asserting that the privacy interest outweighs any public interest.

This approach is consistent with the approach in the United Kingdom and in other countries governed by the European Convention of Human Rights in which Privacy Interests under Article 8 and Freedom of Speech and Freedom of the Press under Article 10 must be balanced by the court.

  1. Issues Paper Question 6: How best could a statutory cause of action recognise the public interest in freedom of expression?

Freedom of expression and freedom of the press must be protected by specific reference both at the cause of action stage as discussed above, and when the court is considering the remedy of an injunction.

In relation to injunctions, a provision similar to s 12 of the Human Rights Act 1998 (UK) should be included:

Section 12 Freedom of expression.E+W+S+N.I.

(1)This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2)If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied—

(a)that the applicant has taken all practicable steps to notify the respondent; or

(b)that there are compelling reasons why the respondent should not be notified.

(3)No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4)The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a)the extent to which—

(i)the material has, or is about to, become available to the public; or

(ii)it is, or would be, in the public interest for the material to be published;

(b)any relevant privacy code.

(5)In this section—

  • “court” includes a tribunal; and
  • “relief” includes any remedy or order (other than in criminal proceedings).
  1. Issues Paper Question 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?

I strongly urge that any statutory action be limited to intentional invasions of privacy, i.e. the invasion of privacy itself must be intended.

Contrary to the understanding of the ALRC proposal set out on page 38 of the Issues Paper, it should not be enough that the defendant intentionally committed an act which in fact turns out to be an invasion of privacy if the defendant lacked the intention to invade the claimant’s privacy.

To prevent a person arguing that he or she did not subjectively intend the invasion, where it would be obvious to a reasonable person in those circumstances that an invasion of privacy would be substantially certain to follow his or her conduct, the definition of “intentional” could be defined broadly to include such incidents. This is consistent with the approach of the common law, as illustrated in cases such as Wilkinson v Downton[1897] 2 QB 57 at 5, see Sappideen and Vines, Fleming’s Law of Torts, 10th edition at p 34 (on intent relating to battery).

I strongly object to the suggestion that the statutory action should encompass a negligent invasion of privacy, including the example given by the VLRC of a medical practitioner leaving highly sensitive medical records on a train, quoted at page 38. Most invasions of privacy will cause only distress or embarrassment, neither of which are treated as actual damage in the common law. The statutory action would effectively give a person a cause of action for negligence without proof of actual damage, i.e. actionable per se.

By contrast, liability for negligence has required proof of actual damage since the action was first recognised centuries ago. At common law and by statute, a person can only recover for mental harm caused by negligence if it amounts to a recognised psychiatric illness (see Mt Isa Mines v Pusey (1970) 125 CLR 383 at 394 per Windeyer J; Civil Liability Act 2002 (NSW) section 31). Indeed, allowing an action for mere distress caused by negligence would conflict with s 31 of the Civil Liability Act 202 in NSW (and similar provisions in other states). If the conduct- for example, of the medical practitioner above- did cause a person to whom a duty of care was owed (such as the patient) to suffer actual damage, then he or she would already be likely to have a good cause of action in the tort of negligence. There would be numerous examples of breaches of privacy by negligence – the most obvious one being using the wrong number for a private letter, text or fax message, a very common and easily done human error.

  1. Issues paper Question 8: Should any legislation allow for the consideration of other relevant matters, and if so, is the list of matters proposed by the NSWLC necessary and sufficient?

I support the inclusion of a range of non-exhaustive factors to be considered by the court.

I would add:

- “in the case of disclosure of information, the extent to which information is already in the public domain or is currently readily available to a member of the public ” as a relevant but not conclusivefactor. I submit that it is more appropriate to consider this factor here than as a defence, below, because there may be instances where, even though the information is available to the public, e.g. on the internet, it would still be a breach of privacy for the defendant to re-publish it in the circumstances.

-“whether or not the claimant has appropriate redress under any other statute or at common law”.

  1. Issues Paper Question 9: Should a non-exhaustive list of activities which would constitute an invasion of privacy be included in the legislation creating a statutory cause of action, or in other explanatory material? If a list were to be included, should any changes be made to the list proposed by the ALRC?

If we are to have a statutory action (which I oppose above) then in my view the list should be exhaustive, rather than non-exhaustive. An exhaustive list will contain the action to intended outcomes whereas leading actionable conduct and damage undefined could easily lead to unintended outcomes and applications.

The ALRC’s list, set out on page 41 of the Issues Paper should be amended:

-Factor a) is too broadly expressed. There might, for example, be many interferences with family life which do not involve a breach of privacy. It should be confined to privacy issues and read “a serious interference with the privacy of an individual or of his or her family life”. This would cover any interference with the privacy of a person’s home.

-Factor b) should refer to “a course of or a serious incident of unauthorised surveillance”. To extend a breach of privacy to any act of unauthorised surveillance would be too broad.

-An additional factor should be added: “The individual has been subjected to a course of harassment that invades his or her privacy.”

  1. Issues Paper Question 10: What should be included as defences to any proposed cause of action?

My only comment here is that there should not be a separate defence of rebutting an untruth except in the case of a public figure where there is public interest in the true disclosure itself. It should not for example, justify arevelation of a true, private fact merely because a public figure has denied that fact, where the fact itself is of no publicinterest in the legal sense.

  1. Issues paper Question 12: Should particular organisations or types of organisations be excluded from the ambit of any proposed cause of action, or should defences by used to restrict its application?

No. They should be protected by the appropriate defences.

  1. Issues Paper Question 12: Are the remedies recommended by the ALRC necessary and sufficient for, and appropriate to the proposed cause of action?

Damages by way of compensation, if any, should be assessed by reference only to a claimant’s injury or loss and not become an underhand means of additionally punishing the defendant or making an example of the defendant. That latter is the role of exemplary or punitive damages, often described as a windfall for a claimant, who receives the monetary benefit of the court’s opprobrium of the anti-social behaviour of the defendant. While there may be some occasions for the court to award exemplary damages, they should be reserved for the most exceptional and egregious cases, where there is no other available means of punishing the defendant.