People in NSW may soon be able to sue for serious invasions of privacy, after a report from the legislative Standing Committee on Law and Justice recommended a statutory cause of action be introduced.
Privacy protection has been a hot topic in Australian law for almost a decade, and this NSW report is only the latest to recommend a cause of action for serious invasion of privacy, after law reform bodies in Victoria, NSW, SA, and at a Commonwealth level.
The Committee’s recommendations essentially adopt the model proposed by the Australian Law Reform Commission in 2014. Under the Committee’s model, a person would have the right to sue when:
- They have a reasonable expectation of privacy;
- Another person intrudes into their private affairs, or misuses or discloses private information about them; and
- The intrusion, misuse or disclosure is intentional or reckless (or negligent in the case of government and corporations).
The court would also need to be satisfied that the invasion of privacy was “serious”, and that the privacy interest being protected outweighed other public interests, including in political communication and artistic expression. However, plaintiffs would not have to prove any actual damage caused by the invasion of privacy.
The Arts Law Centre of Australia has been making submissions to various bodies on the issue of invasion of privacy since 2007 (see here, here 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.
In its 2015 submission, Arts Law expressed concerns that a statutory cause of action would have a negative effect on artists who portray or capture images of people in public spaces, and 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.
The Committee cited some of these concerns when discussing the defences which should be available to an invasion of privacy claim. These defences might work similarly to those available in defamation law, which sometimes require judges to weigh fuzzy notions like public interest and reasonableness. In practice, media organisations sued for defamation have found it difficult to make out these defences.
If the Committee’s recommendations are accepted by the NSW government, NSW will be the only jurisdiction in Australia to allow individuals to sue directly for invasions of privacy.
Seb Tonkin is a law graduate, former Federal Court associate, and intern at the Arts Law Centre of Australia.