Are things finally on the move for a Tort of Privacy? Civil Remedies for Serious Invasions of Privacy Bill 2020 (NSW)
Published on May 20, 2020 by Charles Harrison and Laura Hillard
The NSW parliament is currently considering the Civil Remedies for Serious Invasions of Privacy Bill 2020 (‘the Bill’) which has, once again, put into the spotlight whether federal and state parliaments should legislate a tort of privacy.
The Bill incorporates recommendations from a suite of law reform publications over the last 10-15 years and, in particular, it adopts recommendations made by the NSW Standing Committee on Law and Justice’s Remedies for Serious invasion of Privacy (2016) and the ACCC’s Digital Platforms Inquiry (2019).
In Australia, despite a common misunderstanding to the contrary, there is currently no federal or state legislation articulating a specific cause of action for breach of privacy. Where such a remedy is sought by an individual, they are often required to instead pursue an action in defamation, breach of confidence, or trespass. This contrasts with the position in NZ and Canada, for example, where a tort of invasion of privacy is available, together with remedies including but not limited to damages, injunctions, and account of profits.
Further, Australian courts have sporadically sought to provide guidance, leading to variable conclusions as to whether a tort of invasion of privacy does in fact exist or could exist in the appropriate factual circumstances. In the oft-cited High Court case of Australian Broadcasting Association v Lenah Game Meats  HCA 63, Justice Callinan went so far as to state that “having regard to current conditions in this country, and developments of the law in other common law jurisdictions, the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country”. Chief Justice Gleeson in Lenah was more cautious noting that “the lack of precision of the concept of privacy is a reason for caution in declaring a new tort of the kind for which the respondent contends. Another reason is the tension that exists between interests in privacy and interests in free speech.”
What is in the Bill?
The Bill was first introduced by a member of the NSW Labor Party opposition in November 2019 and underwent its first and second reading in February 2020.
The Bill proposes to address the purported inadequacy of the law – as it is currently constituted – and to provide remedies to individuals who have suffered a serious invasion of privacy. It introduces a statutory cause of action available to individuals where the requisite level of seriousness is satisfied.
Although a “serious invasion” of privacy is not defined in the Bill, it does require that one of the following must have occurred before a cause of action may be brought:
- A plaintiff’s privacy must have been invaded through “intrusion upon seclusion”, referring to the physical or technological intrusion of an individual’s private space such as by watching, listening to or recording private activities; or
- A plaintiff’s privacy must have been invaded through “the misuse of private information” such as the collection or disclosure of private information.
Further, an invasion of privacy will be more likely to be considered “serious” where the defendant was motivated by malice or with the intention of knowingly offending or harming the plaintiff’s dignity.
In addition, the Bill provides for a number of civil remedies where a cause of action is successful, both monetary and non-monetary. This means that a plaintiff may be entitled to general damages, damages for emotional distress, exemplary damages, injunctive relief, declaration or correction, or an apology from the defendant.
The following elements are necessary in order for an individual to bring an action for invasion of privacy:
- The plaintiff must have had a “reasonable expectation of privacy”;
- The plaintiff must have been the subject of an intentional or reckless behaviour from the defendant;
- The plaintiff must have been the subject of a “serious invasion of privacy”; and
The Bill also incorporates a number of defences to a claim for invasion of privacy. These include lawful conduct, protection of person or property, a countervailing public interest such as freedom of expression, absolute privilege, necessity, and consent.
Having not yet reached the upper house in NSW parliament for reading and debate, it is as yet unclear whether the Bill will be introduced into law. If this is to occur, it will be a significant step forward in Australian privacy law and may open the gates for similar legislation in other states and territories. In short, watch this space!