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Tort of Privacy in NSW? Not This Time…

22nd September 2016

Back in April we wrote about how people in NSW may soon be able to sue for serious invasions of privacy, after a report from the Legislative Council Standing Committee on Law and Justice recommended a statutory cause of action be introduced.

The Arts Law Centre of Australia has been making submissions to various bodies on the issue of invasion of privacy since 2007 (see herehere and here). Generally, Arts Law’s position has been that there is no need for a statutory cause of action, and that privacy is already adequately protected – for example by the law of trespass, breach of confidence, and various criminal offences. 

Our main concerns which we outlined in our submissions were around the negative effect on artists who portray or capture images of people in public spaces due to a statutory cause of action, and the potential that it would restrict the freedom of expression of writers and journalists. This is especially so given Australia does not have an enshrined general right to free speech or expression.

Media organisations, including Fairfax, News Corp and the MEAA also strongly opposed the introduction of a privacy tort on freedom of expression and public interest grounds.

In their response to the Legislative Council's recommendation (recommendation 3 in the report) the NSW Government indicated that they are unlikely to introduce a statutory cause of action for serious invasions of privacy. Specifically mentioned in their response were the concerns raised by Arts Law of balancing the protection of privacy with freedom of expression. From the report:

"The public interest in the free flow of information on matters of public concern and freedom of artistic expression could be threatened by unclear standards as to what is and what is not acceptable in the context of a statutory cause of action"

The response did acknowledge that there is public concern around serious invasions of privacy (particularly around the non-consensual sharing of intimate images), however they will consider the introduction of new criminal offences against these actions as a more appropriate response to that issue, which would not have the same negative ramifications as an introduction of a statutory cause of action for serious invasions of privacy.

This is a positive outcome in allowing the important work done by photographers, filmmakers, writers and journalists to continue in Australia. 

 Government Response to the Legislative Council Stand Committee on Law and Justice report into remedies for the serious invasion of privacy in New South Wales

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