gazetteThe Australian Law Reform Commission has just released its Discussion Paper on privacy in the digital era … In this article, Commissioner in charge of the inquiry, Professor Barbara McDonald, outlines the thinking behind the proposal for a new statutory tort of privacy.

The Australian Law Reform Commission’s Discussion Paper for its inquiry into Serious Invasions of Privacy in the Digital Era sets out a number of proposals for the reform of Australian laws.

It may not go as far as some advocates for reform may wish, but no doubt will still see some lively opposition from those who do not see a need for greater privacy protection in Australia.

Obviously the prospect of a new privacy law is a concern for the media, but they are not necessarily served well by uncertainty and inconsistency in the existing law.

There is also a case that a statutory cause of action could provide greater express protection for freedom of expression than might be found in any common law development.

imageThe Final Report is due to the Attorney General (pic) by the end of June 2014. The ALRC welcomes submissions on its proposals by Monday, May 12.

The proposals in the DP are informed by several key principles, including the need to balance privacy with other fundamental interests particularly freedom of expression, the desirability of certainty and consistency in the law across Australia and the need for adaptability to technological change.

The major part of the DP comprises the detailed legal design of a new statutory tort for serious invasion of privacy.

Conscious that a common objection to previous recommendations was uncertainty about how a new broad action would operate, the ALRC has attempted to provide as much certainty and guidance as is practicable into the design of the statutory action.

Parliament cannot legislate for every situation in which a law will operate and some matters must be left to the court to determine in a particular case.

However, the DP suggests that the new law include guidance on several key issues, such as factors relevant to the threshold issue of whether the plaintiff had a reasonable expectation of privacy (to avoid argument, we stress this is an objective test).

The proposed cause of action is also narrower than some previous proposals.

First it is limited to the two types of invasion that have been the subject of most privacy cases around the world and that are arguably the key mischief the action is designed to remedy: misuse and disclosure of private information and “intrusion into seclusion”.

The latter term has been the subject of discussion in several cases in Europe, the US and the UK, as has the question of whether a person ever has a reasonable expectation of privacy in a public place.

Secondly, it limits the cause of action to intentional or reckless conduct amounting to an invasion of privacy.

It would not extend, for example, to disclosures through mere negligence (instead, complainants would have to rely on regulatory regimes, liability in negligence, breach of confidence or other actions) and would not equate to the strict liability found in defamation.

Thirdly, the invasion must be a serious one. Seriousness means more than simply “not trivial” and is left to the court to determine, possibly by reference to whether the conduct was likely to be highly offensive, distressing or harmful to a person of ordinary sensibilities in the position of the plaintiff.

Finally, important up-front protection of freedom of speech, of the media and other public interests is suggested by a proposal that a plaintiff would not have an action unless the court is satisfied that the plaintiff’s interest in privacy outweighs any interest of the defendant in freedom of expression or the broader public interest.

This would be similar to the balancing approach that is seen in the United Kingdom in privacy cases.

While some argued that this would put an unreasonable legal burden on the plaintiff to disprove public interest, the ALRC questions whether this would be the result.

In practice, a defendant would have a strategic or evidentiary burden to raise whatever issue of public interest it wanted the court to consider.

imageImportantly, this balancing process, combined with the fault element and the threshold of seriousness, would do much to prevent unmeritorious claims and the plaintiff having a prima facie basis for relief before a defendant’s interests are considered, as occurs in defamation cases.

Given that most invasions of privacy will result merely in emotional distress, rather than financial loss or actual physical or psychiatric illness, the proposed action would not require proof of “actual damage” in the legal sense.

There would be no presumption of damage as there is in defamation.

The ALRC proposes that exemplary damages should be available in exceptional circumstances where other remedies would not provide an effective deterrent.

There are a range of defences and built-in encouragement both for apologies and for alternative dispute resolution by allowing a court to take into account the reasonable efforts of both parties to resolve the dispute without resort to litigation.

The Discussion Paper then makes proposals as to existing laws.

  • If a statutory cause of action is not enacted, the remedies for breach of confidence could be amplified to make it more useful.
  • The ALRC also proposes legislative direction to courts to have particular regard to any public interest in the publication of private information, when considering whether to grant an injunction before trial.
  • A protection from harassment act could be enacted, as in the UK and NZ.
  • A Commonwealth surveillance devices act is also proposed to replace the array of inconsistent state and territory acts.
  • A general prohibition on the recording of private activities is suggested, with a new limited “responsible journalism” defence to be added to existing defences.
  • A new power for the Australian Communications and Media Authority, similar to that of the Australian Information Commissioner in respect of complaints about privacy, is proposed.
  • The ALRC has also asked whether a regulator should have a power to order take-down of online content is included: this difficult question reflects the view, often expressed to the ALRC, that rapid take-down is the best remedy to prevent online invasions of privacy, although of course it is also the most contentious.

*Professor Barbara McDonald is the Commissioner in charge of the Australian Law Reform Commission inquiry into the protection of privacy in the digital era. She is a Professor of Law at the University of Sydney and a co-author of Celebrity and the Law, published in 2010.

This article was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.