A tort of invasion of privacy in Australia?

• Jurisdiction: Australia
• Author: Butler, Des
• Date: 01 August 2005

[Recent decisions in the House of Lords and the New Zealand Court of Appeal have recognised forms of protection of personal privacy in the United Kingdom and New Zealand respectively. With the High Court clearing the way for the development of such a tort in Australia, this article addresses the potential form that such a development could take. The need to take into account existing laws, including the constitutional freedom of communication concerning governmental or political matters, should result in the development of a tort and corresponding defences which are appropriately adapted to an Australian context.]

CONTENTS I Introduction II Lenah Game Meats: The Removal of an Obstacle III International Experience A United States: Genesis of the Tort of Invasion of Privacy B United Kingdom: Metamorphosis of a Cause of Action C New Zealand: Protection of Private Facts IV Developments in Australia V Protection of Privacy in Australia? A Impetus for Change B Intentional Infliction of Mental Harm: A Viable Alternative? C Potential Form of the Tort D Defences 1 Existing Indicators 2 Private Interest: Consent 3 Public Interest 4 Other Defences VI Conclusion I INTRODUCTION

Australia is a signatory to the International Covenant on Civil and Political Rights, (1) art 17 of which requires contracting states to ensure that their domestic legal systems provide adequate protection against interference with privacy. (2) Although legislation has been enacted at federal and state levels protecting the privacy of information (3) and communications, (4) it has long been asserted that the common law of Australia did not recognise an enforceable right to personal privacy. (5) However, in 2001 the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (6) rejected this assertion and entertained the possibility that the common law might develop to recognise a tort of invasion of privacy. (7) There have since been mixed messages from lower courts concerning the development of the tort in this country, with cases both supporting (8) and resisting (9) its recognition.

What is it about personal privacy that makes its protection problematic? A major difficulty lies in defining what 'privacy' means--the concept lacks precision. (10) An associated problem exists in striking the appropriate balance between privacy interests and free speech interests, (11) an issue which will involve a determination of the nature and scope of appropriate defences, in particular any public interest defence.

This article discusses the possible development of a tort of invasion of privacy in Australia. After a brief reference to the views expressed by the High Court in Lenah Game Meats, it traces the development of privacy torts in the United States, United Kingdom and New Zealand. The article then examines the Australian cases subsequent to Lenah Game Meats that have considered privacy, before addressing the various live issues that are involved in the recognition of the tort, including the scope of the defences.

II LENAH GAME MEATS: THE REMOVAL OF AN OBSTACLE

It was long believed that the common law of Australia, like that of the United Kingdom, did not recognise a right to privacy. This view was traditionally supported by reference to dicta in Victoria Park, (12) which concerned an attempt by the owner of a racetrack to prevent the defendants from observing and broadcasting the races and race information displayed at the track from the vantage point of a platform constructed on adjacent land. The plaintiff based its claim on various grounds, including nuisance, to which Latham CJ remarked '[h]owever desirable some limitation upon invasions of privacy might be, no authority was cited which shows that any general right of privacy exists.' (13)

More recently, however, the High Court in Lenah Game Meats rejected the assumed authority of the Victoria Park case. Gummow and Hayne JJ (with whom Gaudron J agreed) bluntly stated their view that 'Victoria Park does not stand in the path of the development of ... a cause of action [for invasion of privacy].' (14) Kirby J was of a like mind: 'It may be that more was read into the decision in Victoria Park than the actual holding required.' (15) Callinan J summed up the 'narrow majority' decision as being 'a product of a different time', (16) which his Honour described as both 'conservative' and having 'the appearance of an anachronism'. (17) His Honour concluded that the decision in Victoria Park clearly had no application in a case of invasion of privacy. (18)

Therefore, while Lenah Game Meats swept away a major obstacle to the recognition of a right to privacy at common law, most of the judges were content to rest at that point. Only Callinan J was prepared to go further and express support for the recognition of a right to privacy, at least for the benefit of individuals as opposed to corporations:

It seems to me that, having regard to current conditions in this country, and developments of the law in other common law jurisdictions, the time is right for consideration whether a tort of invasion of privacy should be recognised in this country, or whether the legislatures should be left to determine whether provisions for a remedy for it should be made. (19) Thus, while the High Court in Lenah Game Meats did not make the leap to recognising a tort for invasion of privacy, it is fair to say that it cleared the way for the subsequent development of such a tort.

III INTERNATIONAL EXPERIENCE

It is instructive to examine the experience in three overseas common law jurisdictions, which may influence the future development of a tort of privacy in Australia. (20)

A United States. Genesis of the Tort of Invasion of Privacy

In 1890, Samuel Warren and Louis Brandeis published a seminal article (21) which argued that the collection of predominately United Kingdom cases that they had assembled (22) in fact reflected an intention to protect personal privacy. The significance of this 'right to be left alone' (23) was expressed in terms that may be considered just as relevant today:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.... The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world ... (24) The problem, as the authors saw it, was that if the courts continued to rely on artificial applications of existing causes of action, they would be unable to deal with all instances of breach of privacy. (25) This was particularly so considering developments in technology, which at the time included the development of photography as a tool a stranger could use to surreptitiously invade privacy in circumstances beyond the reach of existing causes of action. (26) Warren and Brandeis sought to ameliorate any fears of a far-reaching doctrine by suggesting various limits: that privacy would be trumped if a publication were of public or general interest; that publications which would be privileged under defamation law would have similar protection against any action for breach of privacy; that, like slander, oral breaches of privacy would not be actionable in the absence of special damage; and that any right to privacy would cease when the material was published by the individual or with his or her consent. (27) Although the article initially met with a cool reception, (28) it inspired recognition of a common law right to privacy, first in Georgia (29) and then throughout the United States. (30) It was sufficiently well recognised by 1939 that it had found its way into the Restatement of Torts (1939). (31)

Seventy years after Warren and Brandeis' article was published, William Prosser reviewed the body of cases protecting privacy (32) and suggested that they in fact represented four separate torts: unreasonable intrusion upon the seclusion of another, public disclosure of private facts, displaying another in a false light before the public, and appropriation of another's name or likeness. (33) This four-way formulation gained judicial acceptance, (34) and in 1977 was adopted in the Restatement (Second) of Torts [section] 652A (1977) ('Second Restatement'). This section refers to four specific components, (35) which provide that liability for invasion of privacy arises where one person:

1 intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another (either as to person or private affairs or concerns) if the intrusion would be highly offensive to a reasonable person of ordinary sensibilities: [section] 652B;

2 appropriates to his or her own use or benefit the name or likeness of another: [section] 652C;

3 gives publicity to a matter concerning the private life of another which is matter of a kind that (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public: [section] 652D; or

4 gives publicity to a matter concerning another which places that person before the public in a false light where (a) that false light would be highly offensive to a reasonable person and (b) the publisher knew of or recklessly disregarded the falsity of the matter and the false light in which the other would be placed: [section] 652E.

The Second Restatement states that all four instances of invasion of privacy are subject to the same absolute privilege defences that apply to defamation, including parliamentary (legislative) and court privilege and consent, (36) as well as conditional privileges (such as reports of public proceedings, executive officers performing official duties, protection of defendants' interests, reports to government authorities concerning mental health, and reasonable investigation of a claim against the defendant). (37)

These torts have enjoyed a less than spectacular existence. The...