In December 2019, the Attorney-General announced that the Australian Government would conduct a review (the Review) of the Privacy Act 1988 (Cth) (the Privacy Act). The Review aimed to investigate the effectiveness of Australia’s current data protection regime to ensure it “empower[s] consumers, protect[s] their data and best serve[s] the Australian economy”. Since then, the Attorney-General has published an Issues Paper in October 2020 (the Issues Paper) and a Discussion Paper in October 2021 (the Discussion Paper) and conducted several rounds of public consultations. This series from Gilbert + Tobin’s Technology + IP team will guide you through the key issues that have been raised by the Review.
A Statutory Tort of Privacy
A key issue in the Review is whether Australia should introduce a statutory tort of privacy. G+T reported on this in 2019, after the Australian Competition and Consumer Commission (ACCC) recommended the tort’s introduction. As that article reported, the debate is not new in Australia having been considered in detail by the Australian Law Reform Commission (ALRC) in its report titled Serious Invasions of Privacy in the Digital Era (the ALRC Report 123).
Despite the lack of progress on the creation of a tort since the High Court left the door open to its development in 2001 in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, there is a renewed sense that the Review will lead to the creation of this tort.
The Issues Paper
The Review’s Issues Paper posed six key questions:
- Is a statutory tort for invasion of privacy needed?
- Should serious invasions of privacy be addressed through the criminal law or through a statutory tort?
- What types of invasions of privacy should be covered by a statutory tort?
- Should a statutory tort of privacy apply only to intentional, reckless invasions of privacy or should it also apply to breaches of privacy as a result of negligence or gross negligence?
- How should a statutory tort for serious invasions of privacy be balanced with competing public interests?
- If a statutory tort for the invasion of privacy was not enacted, what other changes could be made to existing laws to provide redress for serious invasions of privacy?
The questions posited in the Review’s Issues Paper essentially concern whether Australian law currently adequately protects against serious invasions of privacy, and if not, what would be the best mechanism to rectify this? Further, should the solution involve the introduction of a statutory tort, and if so, how could such a tort be constructed to balance competing public interests?
The Discussion Paper
The Discussion Paper presented four options regarding the best approach to deal with serious invasions of privacy:
- Introduce a statutory tort for invasion of privacy as recommended by the ALRC Report 123;
- Introduce a minimalist statutory tort that recognises the existence of the cause of action but leaves the scope and application of the tort to be developed by the courts;
- Do not introduce a statutory tort and allow the common law to develop as required. However, extend the application of the Act to individuals acting in their personal or domestic capacity, where their collection, use or disclosure of personal information would be highly offensive to an objective reasonable person; and
- In light of the development of the equitable duty of confidence in Australia, states could consider legislating that damages for emotional distress are available in equitable breach of confidence.
Canvased below are many of the arguments made in response to the above questions, across both sides of the debate.
Arguments in favour of the tort
Most of the submissions in favour of the tort were in favour of Option 1, being to enact the tort as recommended by the ALRC Report 123. Many interested parties consider the introduction of a federal statutory tort as a necessity due to a lacuna in available legal options when individuals become victims of serious invasions of their privacy.
Proponents for a statutory tort by and large do not like Options 2 and 3 given Australian courts’ historical unwillingness to develop a common law tort. Their fear is that in seeking to rely upon Australian courts to drive the development of this area of law, there is no promise that anything will happen at all. Both Options 2 and 3 would create uncertainty and lead to higher costs for litigants. Option 4 is also disliked given that the breadth of the equitable action for breach of confidence would not extend to all serious invasions of privacy, for example, where no relationship of confidence exists.
Supporters of Option 1 highlighted the detailed process leading up to the draft proposal in the ALRC Report 123. They stressed that the proposal was specifically designed to protect media freedom, for example, by restricting the tort to intentional or reckless conduct, and by requiring plaintiffs to demonstrate that the public interest in privacy outweighs the public interest in freedom of expression.
Arguments against the tort
The main arguments against the introduction of the tort included that the status quo is sufficient (via online safety laws, criminal voyeurism offences, defamation, the equitable breach of confidence and other actions); that the free flow of information could be harmed; and that there would be increased litigation and associated costs.
Media organisations have had a specific interest in advocating against the tort, as they consider that the tort will have a chilling effect on journalism. Multiple organisations noted the existence of media regulation schemes which already operate to restrict invasions of privacy.
Should the proposal in ALRC Report 123 be enacted, it may be that the public interest balance operates to provide media organisations with a strong defence, such that no chilling effect on journalism actually transpires. However, even with this defence, it is likely that media organisations would be exposed to the risk of having to defend civil proceedings in the short-to-medium term, given the parameters of the public interest exception are yet to be tested.
Some opponents to the tort proposed a fifth option, being that the Privacy Act should be amended to rule out the development of a common law tort emerging.
Statutory Tory of Privacy in Other Jurisdictions
It is useful to consider what other jurisdictions have done in relation to the tort of privacy. This is particularly important given that the ALRC Report 123 conducted comparative research into each of these jurisdictions in order to craft its proposal.
New Zealand’s Privacy Act 2020 applies to individuals in connection with their domestic affairs, where the collection, use or disclosure would be highly offensive to a reasonable person. Option 3 as presented in the Discussion Paper would be very similar to the approach already taken by New Zealand.
A number of provinces have enacted statutory torts for invasion of privacy. In addition, Ontario’s Court of Appeal recognised the tort at common law. Such a piecemeal approach raises the question in Australia as to whether a federal approach is preferable.
Torts related to privacy have long been recognised in the US, however their protection has been limited by the US Constitution’s First Amendment. Some states have introduced a statutory tort, for example California.
UK’s Human Rights Act 1998 gives effect to the protections required by the European Convention on Human Rights. This legislation has had a major influence on the UK courts developing a tort of misuse of private information.
It is important to recognise that all above mentioned jurisdictions have legal human rights frameworks, unlike Australia. Australia’s lack of such a framework appears to be a contributing factor to the lack of development of a tort of privacy, at common law, thus far.
Will a Statutory Tort of Privacy be Introduced?
Whilst it is unclear exactly which direction the new Federal Government will take, given the Government’s large reform agenda on an array of issues, there is a strong chance that a federal statutory tort, in some form, will be introduced.
At the moment, it would appear that a tort developed based on the ALRC Report 123, or Option 1 of the Review’s Discussion Paper, is the most likely option. However, we would not be surprised if the draft legislation included strong exceptions to address the legitimate concerns of the media. This may parallel the existing journalism exception contained within the Privacy Act, which exempts media organisations from complying with the Australian Privacy Principles, so long as they commit to media standards (see s. 7(b)(4)).
Authors: Andrew Hii and Claire Harris