In the beginning of September 2014, the Australian Law Reform Commission (ALRC) tabled in Parliament the Serious Invasions of Privacy in the Digital Era Final Report (Final Report) which proposes the introduction of a new tort for serious invasions of privacy. The Final Report is largely consistent with the ALRC’s earlier recommendations published in the Discussion Paper. Key Recommendations Key proposals include:
- enacting a tort for serious invasion of privacy;
- introducing Commonwealth surveillance legislation that is technology neutral;
- extending the Privacy Commissioner’s powers; and
- amending the cause of action for harassment (should a tort of serious invasion of privacy not be enacted).
Elements of the proposed tort The ALRC recommends the following elements of the tort of serious invasion of privacy to be contained in a Commonwealth act: 1. the invasion of privacy must occur by:
- intrusion upon seclusion, such as by physically intruding into the plaintiff’s private space or by watching, listening to or recording the plaintiff’s private activities or private affairs; or
- misuse of private information, such as by collecting or disclosing private information about the plaintiff. Private information includes untrue information, but only if the information would be private if it were true.
2. it must be proved that a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances. Relevant to whether the person had a reasonable expectation, matters to be considered include, the nature of the private information; the means used to obtain the private information or to intrude upon seclusion; the place where the intrusion occurred; the purpose of the misuse, disclosure or intrusion; how the private information was held or communicated; whether and to what extent the private information was already in the public domain; relevant attributes of the plaintiff; and the conduct of the plaintiff. 3. the invasion:
- must have been committed intentionally or recklessly—mere negligence is not sufficient;
- must be serious;
- need not cause actual damage, and damages for emotional distress may be awarded, and
4. the court must be satisfied that the public interest in privacy outweighs any countervailing public interests. Public interest considerations While the plaintiff must establish that his or her privacy outweighs the public interest in disclosure, the defendant would have the burden of adducing evidence that suggests there is a countervailing public interest to be considered. Public interest considerations include, but are not limited to:
- freedom of expression, including political communication and artistic expression;
- freedom of the media, particularly to responsibly investigate and report matters of public concern and importance;
- the proper administration of government;
- open justice;
- public health and safety;
- national security; and
- the prevention and detection of crime and fraud.
The Final Report considers how courts will engage in the balancing exercise contemplated in the elements of the tort and take into account the identified public interest considerations. Nonetheless, if this form of the tort is introduced it will require a number of cases to make their way through the process to see exactly how Australian courts engage in what is clearly going to be a difficult exercise. The ALRC had previously recommended including “economic wellbeing of the country” to the public interest considerations. It ultimately concluded that although the “economic wellbeing of the country” is a public interest, it is perhaps too general and therefore unhelpful to include in a list of considerations. Defences A range of defences are proposed by the ALRC, which consist of:
- lawful authority;
- where the conduct was incidental to defence of persons or property;
- of necessity;
- absolute privilege (should be co-extensive with the defence of absolute privilege to defamation);
- publication of public documents;
- fair reporting of proceedings of public concern (should be co-extensive with the defence of fair report of proceedings in defamation); and
- exemption for children and young persons.
The ALRC recommends that internet intermediaries should not be liable under the tort for invasions of privacy committed by third parties using their services, where they have no knowledge of the invasion of privacy. However, where they do have knowledge, the ALRC considers that the internet intermediaries should not be entitled to a complete exemption. If an internet intermediary does not have the required knowledge, the ALRC provides two reasons why they are unlikely to be liable under this tort: (i) the tort is targeted at positive conduct on the part of the defendant; and (ii) the tort is confined to intentional or reckless invasions of privacy. The ALRC submits that intermediaries will not likely commit a positive act or meet the intent threshold. Whilst not addressed in the Discussion Paper, the ALRC introduces an exemption for children and young persons in the Final Report. The ALRC does not recommend a specific age under which a young person should not be liable, however the ALRC suggests that it should be consistent with other legislation of similar intent. Remedies The ALRC remarks that serious invasions of privacy may have diverse consequences for plaintiffs. As a result, the ALRC proposes a range of remedies that may be appropriate, which include:
- damages, including for emotional distress and, in exceptional circumstances exemplary damages (subject to a statutory cap equal to the non-economic cap for defamation);
- an account of profits;
- delivery up, destruction and removal of material;
- correction (if the private information disclosed was incorrect) and apology orders; and
In determining quantum of damages, the ALRC recommends that the court consider:
- whether an appropriate apology was made;
- publication of a correction;
- whether the plaintiff has recovered compensation or has agreed to receive compensation;
- whether the parties took reasonable steps to settle the dispute; and
- whether the defendant’s unreasonable conduct subjected the plaintiff to particular or additional embarrassment, harm, distress or humiliation.
Surveillance devices The ALRC acknowledges that current state and territory surveillance device laws are inconsistent and proposes the introduction of Commonwealth surveillance legislation to the inconsistent laws. The ALRC proposes that such legislation should be technology neutral and regulate:
- listening devices;
- tracking devices;
- data surveillance devices and other devices and systems, including software or networked systems.
The Final Report recommends removing exceptions for participants in conversations or activities, where those exceptions exist. Significantly for the media, the ALRC recommends that the legislation should incorporate a defence of responsible journalism relating to matters of public concern and importance. However it stops short of recommending the specific terms of a responsible journalism defence, indicating that further consultation should occur in the development of such a defence. The ALRC also proposes that workplace surveillance laws should be made uniform throughout Australia. Privacy commissioner The ALRC recommends extending the scope of the Privacy Commissioner’s powers to enable him or her to investigate complaints about serious invasions of privacy and to make appropriate declarations which can only be enforced by a court. Finally, the ALRC recommends conferring the following powers on the Privacy Commissioner, where the Commissioner considers it appropriate and with leave of the court:
- to assist a court as amicus curiae; and
- to intervene in court proceedings.
Harassment / Breach of Confidence As recommended in the Discussion Paper, if a tort of serious invasion of privacy is not enacted, the ALRC proposes:
- legislation be amended to provide that, in an action for breach of confidence that concerns a serious invasion of privacy by the misuse, publication or disclosure of private information, the court may award compensation for the plaintiff’s emotional distress; and
- state and territory governments should enact uniform legislation creating a tort of harassment.
Where to now? Following the release of the Discussion Paper in late March 2014, Attorney-General Brandis indicated that the Federal Government did not support the introduction of a tort of privacy. The Government has not yet released any comments regarding the Final Report. Whilst the introduction of a tort of privacy in Australia seems unlikely in the short term, the Government may consider some of the other proposed changes, such as changes to surveillance and workplace surveillance laws as well as new regulatory powers for the Privacy Commissioner. By Andrew Stewart, Anne-Marie Allgrove, Adrian Lawrence, Patrick Fair, and Anne Petterd