This article was produced by the Commission and appeared in the October 2011 issue of the Law Institute Journal.
The VLRC has recommended the introduction of two statutory causes of action for serious invasions of privacy.
The recent voicemail hacking scandal at Britain’s News of the World has prompted renewed calls for the examination of Australia’s privacy laws.
At present, no Australian jurisdiction has enacted a statutory cause of action for invasion of privacy, and no appellate court has acknowledged the existence of a common law tort of invasion of privacy. While a common law cause of action may ultimately emerge, as it has in Britain and New Zealand, the process of development would probably be long and expensive.
In the past three years the ALRC, NSWLRC and the VLRC have all recommended the introduction of statutory causes of action for serious invasions of privacy. In 2008 the ALRC recommended a broad statutory cause of action for serious invasions of privacy.1 The NSWLRC subsequently recommended a different version of a statutory cause of action for invasion of privacy.2
Victoria is well placed to demonstrate leadership in this area, particularly because privacy is one of the human rights included in Victoria’s Charter of Human Rights and Responsibilities.3
The VLRC’s Surveillance in Public Places: Final Report was tabled in August 2010. The Commission recommended the introduction of two statutory causes of action for serious invasions of privacy. The first deals with misuse of private information and the second with intrusion upon seclusion. Although the Commission was concerned with appropriate legal responses to the misuse of surveillance in public places, the proposed new causes of action would not be limited to conduct occurring in a public place or involving the use of a surveillance device.
The VLRC concluded that introducing two narrower statutory causes of action for serious invasions of privacy was a more desirable reform than a single, broad cause of action as proposed by the ALRC. The concept of privacy is so broad that it might lack sufficient precision when creating new legal rights and obligations.
The VLRC proposed the elements of the cause of action for serious invasion of privacy caused by misuse of private information would be:
- the defendant misused, by publication or otherwise, information about the plaintiff in respect of which the plaintiff had a reasonable expectation of privacy; and
- a reasonable person would consider the defendant’s misuse of that information highly offensive.
Similarly, the elements of the cause of action for serious invasion of privacy caused by intrusion upon seclusion would be:
- the defendant intruded upon the seclusion of the plaintiff when the plaintiff had a reasonable expectation of privacy; and
- a reasonable person would consider the defendant’s intrusion upon the plaintiff’s seclusion highly offensive.
The Commission proposes several defences for the causes of action, including consent to the use of information, that the activity was authorised by law or appropriately conducted by a police officer, or that it was conducted in the public interest. An additional defence in relation to publication of private information would be that the publication was privileged or fair comment.
The remedies available for both causes of action would include compensatory damages, injunctions and declarations. The VLRC recommended that VCAT have sole jurisdiction in these cases to ensure that the costs of litigating do not outweigh the issues at stake.
Particularly offensive invasions of privacy will fall within the VLRC proposed causes of action, while more minor or trivial cases will not. For example, the family of abducted schoolgirl Milly Dowler, or the British soldiers killed in action who had their voicemails hacked into by News of the World journalists, would have had a remedy under the cause of action for misuse of private information. Similarly, the victim cadet of the ADFA video sex scandal, who was unknowingly recorded and broadcast having sex with another cadet in April this year, would also have been able to seek redress under the VLRC’s proposed causes of action.
On the other hand, where publication of information is seen to be in the public interest, the causes of action would not apply. The VLRC’s proposals seek to strike an appropriate balance between disclosure of information, sharing of public places and protecting personal privacy.
The evidence from other comparable countries with causes of action for serious invasions of privacy – such as Britain, New Zealand and Canada – suggests that there is unlikely to be a flood of litigation if we choose to legislate in this area. The proposed new causes of action do have the capacity, however, to create a climate of restraint which might stem some of the activities that led to the closure of News of the World.
The Surveillance in Public Places: Final Report is on the VLRC website at www.lawreform.vic.gov.au.