A Tort of Breach of Privacy

This paper argues that a tort of breach of privacy should be established in Australian law as the current statutory and common laws are ineffective in protecting the right to personal privacy. Australia currently does not recognise a tort of breach of privacy. As a signatory of the International Convention for Civil and Political Rights (ICCPR), the Australian government is obligated to provide protection for the individual’s right to privacy via domestic law. The establishment of a tort of breach of privacy would satisfy this obligation. In accordance with Article 17, a tort of breach of privacy honours the right of all citizens to protection against “arbitrary or unlawful interferences with… privacy, family or correspondence, [and] unlawful attacks on… honour and reputation.” [1]

The enactment of the Privacy Act 1988 (Cth) only protects informational privacy and disregards other rights such as physical or communication privacy. [2] 3I will refer to common law developments to demonstrate how existing alternative routes of action do not provide the protection for all privacy rights. I will also refer to international jurisdictions that recognise a tort of breach of privacy to demonstrate Australia’s outdated privacy law and how this is detrimental to our democratic principles. Therefore, this paper recommends a statutory enactment for a tort of breach of privacy for the progression and restoration of democratic nature in privacy law.

Though it can be disputed that the tort of breach of privacy infringes on other public interest matters, this can easily be avoided by including appropriate provisions in statute.

Defining right to privacy and a breach of privacy.

In reference to international cases and legislation, the High Court of Australia (HCA) has acknowledged that privacy rights relate to the exercise of autonomy of personal life. [4] 5Common law developments in the tort of breach of privacy have referred to international influences on determining what constitutes breach of privacy. Taking this into consideration, in 2008 the ALRC recommended the establishment of a federally legislated tort of breach of privacy. Liability generally arises for conduct such as:

interference with home or personal life

unauthorised surveillance of an individual

the misuse or disclosure of correspondence or communication of an individual

the disclosure of sensitive facts relating to the individual

The ALRC also recommended that liability would be established where:

there was a reasonable expectation of privacy to the individual

the intentional act or conduct was in a manner that was highly offensive to the ordinary person of reasonable sensibilities

I endorse these recommendations for the following reasons below.

The current measures in Australian statutory and common law do not effectively protect the right to privacy of the individual.

Australia does not recognise a tort of breach of privacy. The Privacy Act does not protect rights such as physical and communication rights, which demonstrates that the Australian government has failed to meet its obligations to Article 17 of the ICCPR. Common law developments have seen support for the statutory recognition for this tort. The judgment in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (Lenah) provided recommendations for the development of privacy law, but also noted that “alternative routes of action” could be used to deal with privacy rights not covered by the Privacy Act. [6] However, it can be argued that these alternatives do not effectively complement the Privacy Act and leave certain rights to privacy unprotected. Lenah demonstrated that trespass to land did not prevent media publication of personal information in circumstances where the broadcaster did not commit trespass, but obtained the material via a third party. [7] Additionally, Victoria Park Racing Course concluded that a right to privacy does not exist for the protection of commercial interests. [8] This means alternative torts such as defamation, injurious falsehood and passing off are better dealt with in commercial torts for the purpose of seeking damages for financial losses arising from breach of privacy. As a result, privacy as a right to autonomy remains unprotected in Australia. I recommend that a tort of breach of privacy should be established to rectify this problem.

Grosse v Purvis and Doe v Australian Broadcasting Corporation (Doe) acknowledged breach of privacy as a civil tort and the plaintiff was awarded damages. [9] Doe referred to the UK tort of breach of confidence where the defendant had an obligation not to disclose personal information of the plaintiff, without the requirement of a pre-existing relationship of trust or confidence. [10] It has been suggested that Australia should follow the UK and adopt a breach of confidence instead. Like Australia, the UK does not have an express right to privacy. The European Convention on Human Rights and Human Rights Act 1998 (UK) recognises the right “to respect for his private and family life, his home and his correspondence” and its incorporation into UK domestic law. [11] 12Campbell v MGN Ltd used this tort to cover the unlawful distribution of personal information and established that the private nature of the information determines an actionable cause. [13] However, breach of confidence has been criticized for confining to cases where the information is private in nature and where an actionable cause is only established upon publication of the information. [14] The ALRC argued a statutory tort of breach of privacy would avoid these restrictions and alleviate the judges from the tedious and difficult task of attempting to “fit in the circumstances that may give rise to an invasion of privacy into a pre-existing cause of action.” [15] It can further be argued that a federal tort will provide a uniform guide for the courts and thus accelerate the court process.

The absence of tort of breach of privacy places Australian law behind in comparison to international jurisdictions.

Many jurisdictions such as the US, UK and certain provinces in Canada have statutory torts of breach or invasion of privacy. The UK and New Zealand also have common law developments which have resulted in the recognition of breach of privacy as an actionable tort. Though Australia has already considered the introduction of this tort and has a significant common law record signalling for a tort of breach of privacy, no recognition of a tort of breach of privacy has occurred. [16]

As communication technology continues to advance, society’s expectation for protection of personal privacy increases. The absence of a tort of breach of privacy suggests that existing laws do not reflect the community’s value of privacy. This is contradictory to Australia’s democratic principles. I therefore recommend the statutory recognition of tort of breach of privacy to restore the progressive nature of Australian privacy law and ensure society’s values are represented in legislation.

However, a tort of breach of privacy is detrimental to other public interests and rights and places. In the ALRC’s privacy law reform report, many submissions from media organisations stressed how the recognition of a tort of breach of privacy would infringe upon public interest rights such as right to free press and freedom of expression. The international jurisdictions that provide a tort for breach of privacy also have statutory or chartered rights to free press and right to freedom of expression. In Australia these rights are only implied in the constitution. Therefore, if the enactment occurs, the freedom of expression right is unprotected and vulnerable to exploitation or becomes secondary to the right to individual privacy. It is recognised that the media plays a large role in Australia’s democratic process by acting as a source of scrutiny for the government. If a tort of breach of privacy were introduced, the impact of remedies such as injunctions would obstruct the “free flow of information” to society which is contradictory to our democratic principles. [17] It is important to note that these opinions would be very biased against a tort of breach of privacy as they come from media sources. However, this possible infringement of rights can be avoided by including provisions in the statute that allow the courts to balance the importance of the individual’s right to privacy and other public interests when determining liability.

Conclusion

This paper contends that the only way to resolve the inefficiency of current protection of personal privacy rights is through the statutory establishment of a tort of breach of privacy. Considering that both legislative and common law do not protect against breach of privacy, a new statutory tort should be introduced. The fact that international jurisdictions already recognise this tort suggests that Australia is dated in its approach to individual privacy rights. This demonstrates a lack of social representation in the law which is contradictory to the democratic principles of Australia. Taking this into consideration, I recommend that an approach similar to the ALRC’s recommendation of creating a statutory tort of breach of privacy should be applied to rectify these legal flaws.