There is a lot of discussion at the moment about the question of whether Australia is moving towards a tort of ‘invasion of privacy’ as a result of the publication of compromising pictures supposedly of Pauline Hanson. There is a useful note on recent UK developments in the Max Mosley case and some speculation about the Australian position at skepticlawyer.

In essence, it can be said that:

• no superior or appellate court has expressly accepted the existence of a tort of invasion of privacy in Australia;
• it is nevertheless at least arguable that such a tort exists, and claims based on a freestanding tort have already met with some success in inferior courts; and
• if such a tort does exist, its elements insofar as they may be discerned appear to be:
  • that there be an intentional or (perhaps) reckless act by a defendant;
  • that the defendant in some way interferes with matters which would ordinarily be regarded as “private” to the plaintiff (although an enumeration of those matters is not at all simple);
  • that the effect of the conduct, or the conduct itself, be such that a reasonable person would consider it highly offensive (or, alternatively, that the conduct be “serious”); and
  • (possibly) that the plaintiff has suffered harm (including mental harm) as a result.

The High Court’s ‘Invitation’

In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 the High Court invited speculation about whether a specific tort of invasion of privacy was emerging in Australia.  At present, the great weight of authority suggests that there is no such tort – in principle, if the observation, recording or publication of things said or done in private is not caught by defamation, breach of confidence, or legislation such as section 5 of the Listening Devices Act 1992 (Cth).

In Lenah Game Meats Chief Justice Gleeson felt that breach of confidence was sufficient to control the publication of film of private matters obtained by the use of hidden cameras (at [39]):

If the activities filmed were private, then the law of breach of confidence is adequate to cover the case. I would regard images and sounds of private activities, recorded by the methods employed in the present case, as confidential. There would be an obligation of confidence upon the persons who obtained them, and upon those into whose possession they came, if they knew, or ought to have known, the manner in which they were obtained.

In Lenah Game Meats the Chief Justice observed that there is a danger in establishing a “right” to privacy in a country like Australia where we lack any positive right to free speech, and that there is great difficulty in drawing a line between what it “private” and what is not (at [42]):

There is no bright line which can be drawn between what is private and what is not. Use of the term “public” is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.

The “practical test” suggested by his Honour appears to be an element of the proposed tort of privacy, that is, whether the disclosure of observation in question would be “highly offensive” to a reasonable person.

Justices Gummow and Hayne made much more encouraging noises with respect to the development of a tort of invasion of privacy insofar as it would be actionable by a natural person (rather than a corporation) (at [132]):

Whatever development may take place in that field will be to the benefit of natural, not artificial, persons. It may be that development is best achieved by looking across the range of already established legal and equitable wrongs. On the other hand, in some respects these may be seen as representing species of a genus, being a principle protecting the interests of the individual in leading, to some reasonable extent, a secluded and private life, in the words of the Restatement, “free from the prying eyes, ears and publications of others.” Nothing said in these reasons should be understood as foreclosing any such debate or as indicating any particular outcome.

Justices Callinan and Kirby also appeared to countenance the possibility that a private tort exists.  More recently, in Batistatos v  Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Callinan J remarked on the effect of Lenah Game Meats on the development of a tort of privacy, suggesting that the case had not positively established any new cause of action (although again leaving that possibility open) (at [216]):

I took the view in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd that the time was ripe for the consideration at least of the recognition by the law of a cause of action for invasion of privacy. In view of the fact that my opinion was only a dissenting one, it is difficult to see how an advocate in New South Wales could seek to bring this matter before the courts now even though the law is moving in that direction in the United Kingdom

The Limited Scope of Breach of Confidence

It must be doubted whether the law of breach of confidence can adequately protect what is normally regarded as “privacy”.  Breach of confidence is founded in equity, and relies on the following elements before an action may be brought:

• there must be specific information identified which is said to be subject to an obligation of confidence;
• the information must not be common or public knowledge;
• the information must be received in circumstances which import an ‘obligation of confidence’; and
• there must be actual or threatened ‘misuse’ of the information without consent.

(see Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 17 IPR 545).

The equitable nature of the action also potentially limits the remedies which is provides: “[t]he plaintiff comes to equity to vindicate his right to observance of the obligation, not necessarily to recover loss or to restrain infliction of apprehended loss”, as Gummow J explained in Smith Kline & French Laboratories.  In other words, equity will more readily restrain a breach of an obligation than it will provide damages as a result of such a breach.

It can be seen that breach of confidence may not be sufficient to protect a private litigant from everything which might be called an ‘invasion of privacy’: the action may be too narrow and focused on specific obligations arising out of a relationship,and the remedies available may be weak by common law standards (although see the discussion of Giller, below).

Subsequent Consideration

Other cases have since considered whether there is, indeed, a tort of privacy in Australia.

In Giller v Procopets [2008] VSCA the Victorian Court of Appeal appeared to the possibility of a claim based on a specific tort of privacy, and instead considered that a claim founded on breach of confidence provided an adequate remedy.  In that case a husband had threatened to publish to third parties a video recording of sexual activity between himself and his wife.

By restricting the plaintiff to breach of confidence, the Court of Appeal was forced to grapple with significant questions of the scope of equitable compensation for purely mental harm:

No Australian authority was cited at trial or on appeal to support the proposition that, in the context now under discussion, equitable compensation or equitable damages [...] can be awarded for mental distress alone. It was submitted at trial, however, and reiterated in this Court, that English authorities support the view that a monetary remedy is available for distress occasioned by breach of the equitable obligation of confidence.

Ashley JA felt that the case fell within the principles set out in Lenah Game Meats:

In the present case, a claim founded in breach of confidence was, as I have concluded, available to the appellant. It conferred upon her an entitlement to equitable compensation. This case, like Lenah, is therefore one in which it is unnecessary to consider whether a generalised tort of invasion of privacy should be recognised. It is also an instance of the way in which the law has otherwise developed to address a particular situation. That may provide a good reason why, if a tort of invasion of privacy did come to be recognised, it would not extend to a case of the present kind.

Ultimately, the Court appeared to favour the expansion of the remedies available in respect of a breach of confidence over any specific tort of privacy (per Neave JA at [423]):

Equitable remedies such as injunctions are available to prevent publication of confidential material because of its private nature. It is unnecessary in such applications to show that, if unrestrained, the breach of confidence will cause financial loss or psychiatric injury. By parity of reasoning there should be no barrier to the making of an order for equitable compensation to compensate a claimant for the embarrassment or distress she has suffered as the result of a breach of an equitable duty of confidence which has already occurred.

Neave JA indicated (at [423]-[424]) that this conclusion should follow, if for no other reason than that “to refuse would indicate that something was wrong with the law.”

In Kalaba v Commonwealth of Australia [2004] FCA 763 Heerey J also felt that the law had not developed to a point where it could validly be said that there was a freestanding tort of invasion of privacy: at [6].

In contrast to the foregoing, in Grosse v Purvis [2003] QDC 151 the District Court of Queensland held that there is a tort of privacy, and upheld the plaintiff’s claim on that basis.  The elements of the tort were said by Senior Judge Skoien to be:

(a) a willed act by the defendant,

(b) which intrudes upon the privacy or seclusion of the plaintiff,

(c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities,

(d) and which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.

It can be seen that element (c) above picks up on Gleeson CJ’s test as to the distinction between an act which is “private” and that which is not.  Element (d) addresses the difficulties grappled with by the Victorian Court of Appeal with respect to the remedies available for breach of confidence.

In Doe v ABC [2007] VCC 281, Judge Hampel found that there was an actionable tort of invasion of privacy in Australia.  Her Honour was of the view that the tort had already been established, even if it had not yet been applied:

If the mere fact that a court has not yet applied the developing jurisprudence to the facts of a particular case operates as a bar to its recognition, the capacity of the common law to develop new causes of action, or to adapt existing ones to contemporary values or circumstances is stultified. Lenah Game Meats, and the UK cases … in particular those decided since Lenah Game Meats, demonstrate a rapidly growing trend towards recognition of privacy as a right in itself deserving of protection.

Judge Hampel found the defendant liable both for a breach of the tort of invasion of privacy and breach of confidence.  Rather than enumerating the elements of the tort, she chose to explain the conclusion that the defendant was liable thus (at [163]-[164]):

The wrong that was done here was the publication of personal information, in circumstances where there was no public interest in publishing it, and where there was a prohibition on its publication. In publishing the information, the defendants failed to exercise the care which could be reasonably required of them to protect the plaintiff’s privacy and comply with the prohibition on publication imposed by s.4(1A). This, coupled with the absence of public interest, the clearly private nature of the information, and the prohibition on publication, all point to the publication being unjustified. In my view, a formulation of unjustified, rather than wilful, in these circumstances provides a fair balance between freedom of speech and the protection of privacy. For the reasons I have already canvassed when considering breach of confidence, the information is personal or confidential information which the plaintiff had a reasonable expectation would remain private, and clearly private. Its disclosure was plainly something which an individual was entitled to decide for herself.

I find therefore the defendants breached the plaintiff’s privacy by the unjustified publication of personal information, and are liable in damages as a result.

This explanation clearly invites the conclusion that there may be a defence of “public interest” or, more broadly, justification, available to a defendant to a claim based on invasion of privacy.

The ALRC’s Recommendation for a Statutory Cause of Action

The Australian Law Reform Commission in 2008 recommended that a statutory cause of action be established to protect personal privacy from serious invasion.  The ALRC appeared to emphasise that any invasion should be “serious” before it becomes actionable.  In summary, the Commission recommended that:

Federal legislation should provide for a statutory cause of action for a serious invasion of privacy. The Act should contain a non-exhaustive list of the types of invasion that fall within the cause of action. For example, a serious invasion of privacy may occur where:

(a) there has been an interference with an individual’s home or family life;

(b) an individual has been subjected to unauthorised surveillance;

(c) an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed; or

(d) sensitive facts relating to an individual’s private life have been disclosed.

In addition, the Commission recommended that a plaintiff be required to show that:

(a) there is a reasonable expectation of privacy; and

(b) the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities

before a claim can succeed.