ALRC Final Report into Serious Invasions of Privacy: Filling the Great Lacunae

On 3 September 2014, the Australian Law Reform Commission (ALRC) tabled and made publicly available its final report dealing with Serious Invasions of Privacy in the Digital Era (the Report reference is No 123, 2014). The final report follows on from an inquiry commissioned by the former Labor government that recommended the introduction of a privacy tort to be created by statute. A statutory tort to be similar to those introduced in both the United Kingdom and New Zealand (see our previous posts: Statutory Privacy Tort and ALRC Reform, and "Don't say words you're gonna regret": ALRC Privacy Invasion Review seeks input).

Background to the Inquiry

The inquiry Terms of Reference required the ALRC to design a tort to deal with "serious invasions of privacy in the digital era". The ALRC's final report provides a detailed legal design of such a statutory tort to be created by a new Commonwealth Act. The final report also makes sixteen key recommendations which the ALRC says in its media release would "strengthen people’s privacy in the digital environment".

Key Legislation Design Recommendations

The report recommends a new tort in a new Commonwealth Act. The proposed Act would provide for two types of invasion:

• intrusion upon seclusion; involving 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. Note: that in this respect the Act would provide that "private information" would include "untrue" information, if the information would be private if it were true.

 The tort would include a "reasonable expectation of privacy" meaning an action would only arise where a person would have had a reasonable expectation of privacy, in all of the circumstances. In considering this a court can look at (among other things):

• 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, eg a person’s home;
• the purpose of the misuse, disclosure or intrusion;
• how the private information was held or communicated, eg private correspondence or a personal diary;
• whether and to what extent the private information was already in the public domain;
• the relevant attributes of person, including age, occupation and cultural background; and
• the conduct of the person, including whether person invited publicity or manifested a desire for privacy.

Fault in that the new tort should be confined to intentional or reckless invasions of privacy - negligent invasions should not attract strict liability. An apology does not constitute an admission of fault or liability and is not relevant to the determination of fault or liability.

Seriousness and proof of damage are required to establish an action under the new tort.

The proposed Act would require a balancing of privacy with other interests in that a person has to have a cause of action that satisfies a court that the public interest in privacy outweighs any countervailing public interest. A separate public interest defence would therefore be unnecessary.

Federal, state and territory courts should have jurisdiction to hear an action for serious invasion of privacy under the proposed Act. The new tort would only be actionable by natural persons and a cause of action for serious invasion of privacy would not survive for the benefit of the person’s estate or against a defendant’s estate.

A time limitation would apply where a person would not be able to bring an action under the new tort after the earlier of:

• one year from the date on which the plaintiff became aware of the invasion of privacy; or
• three years from the date on which the invasion of privacy occurred.

There would however be an exceptional circumstances provision allowing extension of the period.

The ALRC recommended consideration be given to enacting a first publication rule  (also known as a "single publication rule") which would limit the circumstances in which a person may bring an action in relation to the publication of private information, when that same private information had already been published in the past.

Defences and exemptions would include:

• the defendant’s conduct was required or authorised by law;
• the defendant's conduct was incidental to the exercise of a lawful right of defence of persons or property, where that conduct was proportionate, necessary and reasonable; or
• a defence of necessity; consent; absolute privilege; of publication of public documents; of fair report of proceedings of public concern;and an exemption for children and young persons.

Remedies and costs, among other matters, would provide that courts may award damages, including damages for emotional distress.

Failing the Enactment of a Statutory Tort

The ALRC recommends that if a statutory cause of action for serious invasion of privacy is not enacted, appropriate federal, state, and territory legislation should 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.

Further, the ALRC's final report recommends that the Commonwealth Government should enact surveillance legislation to replace existing state and territory surveillance device laws making such legislation uniform throughout Australia.

In the absence of a privacy tort statute, the ALRC also recommends that state and territory governments should enact uniform legislation creating a tort of harassment.

Recommendations Regarding the Privacy Commissioner

The ALRC's final report also recommends that the Commonwealth Government should consider extending the Privacy Commissioner’s powers so that the Commissioner may investigate complaints about serious invasions of privacy and make appropriate declarations. Such declarations would require referral to a court for enforcement. An interesting recommendation given the current Commonwealth Government's actions which seem to be more about curtailing rather than extending privacy law. Namely, budgetary action to disband the Office of the Australian Information Commissioner (OAIC) (to happen by 1 January 2015) and to continue the administration of the Privacy Act 1988 (Cth) by the Privacy Commissioner while the Freedom of Information Act 1982 (FOI Act) will now be administered jointly with the Attorney General’s Department.

A Recent Case Highlights the Need for Reform

Interestingly, in the recently publicised matter involving blog site New Matilda and University of Sydney professor Barry Spurr’s alleged "racial slurs" sent around by him in emails to friends and colleagues, the Guardian reports:

Although it would also be interesting to see how judges might view the publication of Professor Spurr's work emails in the light of the Professor's involvement in the development of education policy and matters that couldbe viewed as coming under a defence of a "fair report of proceedings of public concern".

As to the likelihood of the ALRC's recommendations finding there way into law The Guardian probably gives the most clear view that the likelihood is small when it says:

The Spurr’s case is set to be heard on 8 December 2014 and it will be a most watched outcome, set to be made even more watchable, if the court tackles what The Guardian refers to as the vacuum in Australian law or in lawyer speak, the “lacunae” which currently, is the lack of a codified right to protection against a serious invasion of privacy.

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• Serious Invasions of Privacy in the Digital Era (ALRC 123 Summary)
• Report into Serious Invasions of Privacy in the Digital Era released (ALRC Media Release)
• Barry Spurr v New Matilda: the facts, the law and the porridge (The Guardian - 25 October 2014)