We’ll Be Watching You: NSWLRC Recommends Statutory Tort of Privacy

In 2006, the NSW Law Reform Commission (NSWLRC) inquired into and reported on whether existing legislation in NSW provides an effective framework for the protection of privacy. The NSWLRC initially examined three issues: firstly, the desirability of uniform privacy protection principles throughout Australia; secondly, the desirability of a consistent legislative approaches to privacy legislation, for example the Freedom of Information Act 1989; and thirdly, whether a statutory tort of privacy should be introduced in New South Wales.

In May 2008, the Australian Law Reform Commission (ALRC) issued the For Your Information: Australian Privacy Law and Practice report and recommended, among other things, that federal legislation provide for a statutory cause of action for a serious invasion of privacy.

The ALRC suggested that certain types of 'serious' invasions of privacy should constitute a statutory cause of action, including: interfering with home or family life; unauthorised surveillance; interference with, misuse or disclosure of correspondence or private written, oral or electronic communication; and, disclosure of sensitive facts from someone's private life. The person claiming an invasion of privacy would need to show that they had a reasonable expectation of privacy and the act complained of was sufficiently serious to cause substantial offence to a reasonable person of ordinary sensibilities. The ALRC also recommended that the public interest in maintaining the claimant's privacy should be weighed against the public interest in being informed about matters of public concern and protecting the importance of freedom of expression.

These recommendations were a result of submissions and meetings encompassing the ALRC's largest community consultation process it has ever undertaken. During this consultation period the ALRC discovered that Australian's mistakenly believe that they have a right to privacy, which they believe is being eroded by technology. Most importantly, however, the ALRC recognised that privacy and freedom of expression needed to be delicately balanced, but that neither one should outweigh the other.

Following this, in April 2009 the NSWLRC issued the Invasion of Privacy Report (Report). The Report focused on whether individual privacy should be protected through the introduction of a statutory cause of action for invasion of privacy.

Recognition was given to the fact that a general cause of action for invasion of privacy was of concern to the media and the artistic community a freedom of expression is not itself protected by statute. As a result, the draft legislation proposed by the NSWLRC in the Report, the Civil Liability Amendment (Privacy) Bill 2008 (NSW) (Bill), attempts to balance privacy and freedom of expression (including freedom of artistic expression) in a 'sophisticated balancing process.' (Report, p.34). There is an acknowledgement that artistic speech should be valued for the 'originality and creativity' contributed 'to the 'dynamic society' that we value.' (Report, p.35).

How this balance will be achieved in practice is hard to predict. In its current form the proposed NSWLRC Bill states 'the interests of individuals in their own privacy must be balanced against other important interests (including the interest of the public in being informed of matters of public concern)' (section 72(a)). Yet there is no reference to the importance of freedom of artistic expression and how this will be balanced with any guarantee of privacy. Without specific legislative protection of freedom of expression, the press and artistic expression in Australia the implications are unknown.

The NSWLRC Report supported the proposals made by the ALRC and made comparable recommendations. The ALRC however recommended that a cause of action be enacted in a separate federal statute. The NSWLRC does not consider any current federal statute to be appropriate and prefers that uniform legislation is introduced in each State and Territory. At this stage the Federal Government has responded to 197 of the ALRC's privacy recommendations (the first stage response) and will consider the remaining 98 recommendations (the second stage response – including the proposed introduction of a statutory cause of action for serious invasion of privacy) once the first stage reforms have progressed.

Watching the progress of these reforms and how the balance between privacy and freedom of expression, the press and artistic expression topple and settle will be intriguing.
Disclaimer: the views of this author are the author's own and in no way represent the views of the author's employer the Australian Broadcasting Corporation.

Katherine Giles is a senior lawyer at the Australian Broadcasting Corporation