As part of its review of Australian privacy laws, the Australian Law Reform Commission (ALRC) has released the Australian Law Reform Commission, Report 108 — For Your Information: Australian Privacy Law and Practice (2008) suggesting that a statutory cause of action be provided for serious invasions of privacy. This would mean that, where an individual's privacy has been invaded, that individual would be able to bring a suit for damages caused by that invasion of privacy.

In addition to the ALRC recommendations, both the NSW Law Reform Commission (NSWLRC) and the Victorian Law Reform Commission (VLRC) have released reports (see NSWLRC, Report 120: Invasion of Privacy (2009) and VLRC, Surveillance in Public Places: Final Report 18 (2010)) supporting the concept of a tort for invasions of privacy.

Whilst the consensus on the development of a statutory cause of action is a positive step, the key issue that now remains is what will constitute an invasion of privacy and what will need to be proven to show that a tort has in fact been committed.

Reasonable expectation of privacy

The respective Commissions generally agree that, for there to be a statutory cause of action, the relevant injured party must have had a "reasonable expectation of privacy". This would mean that to prove that a tort has been committed, a plaintiff would need to prove that he or she had a reasonable expectation of privacy and that the privacy was breached.

Highly offensive invasion of privacy

Under both the ALRC and VLRC models, the breach of privacy would need to be "highly offensive to a person of ordinary sensibilities". This high threshold would mean that a mere invasion of privacy would not be enough on its own to give rise to a cause of action. Under this approach, the invasion of privacy would need to be highly offensive.

The NSWLRC disagreed with the "highly offensive" approach. instead, the NSWLRC decided that certain aspects of each individual case would need to be taken into account. For example, it suggested that issues such as the relationship between the parties and the nature of the invasion would need to be assessed in order to identify whether a tort has occurred.

The public interest

Another major issue is whether the "public interest" should be considered in invasion of privacy claims. Here two alternatives were suggested: the ALRC and NSWLRC decided that public interest considerations would be integrated with the cause of action, while the VLRC decided that the issue should not be considered until raised as a defence by the alleged wrongdoer.

In relation to the former approach, courts would consider the public interest in deciding whether in fact a cause of action exists. That is to say that, if the public interest in gathering private information outweighed the public interest in recognising a breach of privacy, no cause of action could be found. In the latter approach, public interest would not dictate whether or not an invasion of privacy had occurred. Instead, under the VLRC's approach, the tort would exist regardless of public interests but the alleged wrongdoer would bear the burden of raising public interest as a defence.

A requirement of 'fault'

The final issue considered by the respective Commissions was whether a fault element should form part of the proposed tort. Under the ALRC's recommendations, the wrongdoer would need to have intent or would need to have been reckless in invading another individual's privacy. This would necessarily mean that an accidental or negligent breach of privacy would not give rise to a cause of action. The VLRC did not take the same approach. It saw no need to discount incidences of negligence from the application of the new law.

In summary

The push for a statutory cause of action for invasions of privacy to be included in privacy reform has clearly gained significant support from three of the country's Law Reform Commissions. From the above discussion, however, it remains unclear what would constitute an invasion of privacy and under what circumstances an individual would be able to enforce his or her right to privacy. It appears that there is certainly some work to be done in reaching consensus on what would constitute a tort of invasion of privacy, before the legislation could be drafted and put before parliament.

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