7. Formulating a statutory cause of action

Updates and background for this project (Digest)

• Introduction
• The essential elements
• Consent
• Information in the public domain
• Fault
• Public interest
• Damage
• Corporations
• Death
• A personal claim

7.1 In Chapter 6, the Commission discusses a number of models for a statutory cause of action. We indicate our preferred position to be the adoption of a general cause of action for invasion of privacy, supplemented by a non-exhaustive list of the circumstances that could give rise to the cause of action.¹ We prefer this approach since our provisional view is that it can best accommodate the contextual nature of invasions of privacy. The contexts in which claims to privacy may arise are, of course, extremely diverse. So, consequently are the factors relevant to determining whether, in any particular case, a cause of action for privacy invasion should lie.

7.2 There are, however, a number of issues that must usually, or always, be addressed in determining whether or not an action for invasion of privacy should be competent. We now identify those issues, and the treatment they could be accorded in any proposed legislation for the purpose of inviting further discussion. The issues concern:

• The identification of the essential elements of the cause of action.
• The circumstances in which the plaintiff should be taken to have consented to an invasion of privacy.
• The extent to which an invasion of privacy can occur in relation to information already in the public domain.
• The extent to which a cause of action for invasion of privacy should depend on fault.
• The effect of public interest factors in a claim for invasion of privacy.
• Whether or not damage should be an element of the action for invasion of privacy.
• Whether or not the cause of action should be limited to natural persons.
• The effect of death on the action.
• The extent to which the plaintiff should be able to mount a claim for invasion of privacy by relying on the invasion of another person’s privacy.

7.3 Essentially, a cause of action for invasion of privacy seeks to protect the plaintiff from intrusion upon some matter (activity, circumstance, situation or information) that is “private”. A simple distinction between “private” and “public” in relation to such matter would not, however, be a sufficient description of when a cause of action for invasion of privacy should generally be competent. This is because the matter may well be “private” (for example, the plaintiff’s HIV status) without being the appropriate subject of a cause of action for breach of privacy (because, for example, the plaintiff’s HIV status requires disclosure for public interest reasons relating to public safety). Again, a matter may be “public” (for example, it is contained in a court record) but may still require protection in a cause of action for invasion of privacy (for example, the court record may contain the name of a rape victim that should be suppressed from further disclosure). Some other description of the general circumstances in which a cause of action for breach of privacy should lie is therefore necessary.

7.4 On the one hand, that description could be stated very broadly in legislation. The privacy statutes in the Canadian provinces of Saskatchewan, British Columbia, and Newfoundland and Labrador provide that the “nature and degree of privacy to which an individual is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, due regard being given to the lawful interests of others”.² The Irish Privacy Bill is in similar terms, but adds that regard must also be had to the “requirements of public order, public morality and the common good”.³

7.5 On the other hand, it may be possible to be more precise than this. The case law and literature examined in Chapters 2-5 of this Consultation Paper suggest two possible approaches. An invasion of privacy could be determined as made out where:

• the plaintiff had, in all the circumstances, a reasonable expectation of privacy in relation to the relevant conduct or information; and/or
• the defendant’s invasion of that privacy in relation to that conduct or information, is, in all the circumstances, offensive (or highly offensive) to a reasonable person of ordinary sensibilities.4

7.7 For the purposes of consultation, we have decided to separate the two descriptions of the essential element of the cause of action for invasion of privacy. We recognise that in any final definition of the cause of action, some greater degree of specificity will be required.

Expectation of privacy

7.8 The Hong Kong Law Reform Commission describes the concept of a reasonable expectation of privacy as being at the “core” of a tort of privacy intrusion.⁶ The Irish Law Reform Commission similarly recommended that any tort of privacy should protect a reasonable expectation of privacy. It proposed that, “in determining whether the privacy of a person has been invaded by means of surveillance, the Court should consider the extent to which that person was reasonably entitled to expect that he [or she] should not be subjected to such surveillance having regard to all the relevant circumstances”.⁷

7.9 Determining the circumstances in which a reasonable expectation of privacy exists can be far from straightforward. Factors such as the relationship between the parties, and the place where the alleged invasion occurred, may be relevant to establishing whether or not the plaintiff’s expectation of privacy was reasonably held. For example, if the plaintiff was involved in a contractual relationship with the defendant, the expectation of privacy in relation to the terms of the contract and its performance would generally be higher than would apply to communications between them as merely casual acquaintances.⁸ However, whether an activity is done in public or private is not definitive of whether the expectation of privacy is reasonable or not. As Chief Justice Gleeson noted in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, “an activity is not private simply because it is not done in public”.⁹ Nor should it be assumed that an action undertaken in the public view would never have the necessary characteristics of a reasonable expectation of privacy sufficient to ground an action.¹⁰

Nature of the invasion

7.10 The second way of describing the circumstances in which a cause of action for invasion of privacy approach should generally be available, focuses on the circumstances of the invasion itself. It has been variously described as the “reasonable person” test, meaning that an activity or information could be regarded as requiring privacy protection if invasion into that activity or information would be regarded as offensive or “highly offensive to a reasonable person of ordinary sensibilities”.¹¹ The type of “unreasonable” invasion that would be capable of grounding an action would depend on the nature of the privacy interests at stake. For example, in some circumstances, the invasion alone may be so offensive to a person of ordinary sensibilities as to be sufficient to establish a cause of action, as where the defendant deliberately and without lawful justification discloses the plaintiff’s HIV status.¹² In other cases, the form of the invasion may not be offensive in itself but may become so because it involves, for example, disclosure to a large number of people¹³ or unreasonable or excessive persistence in otherwise justifiable conduct,¹⁴ or because it is productive of some harm peculiar to the person affected.

Factors determining reasonableness

7.11 “Reasonableness” is relevant to establishing the existence of a reasonable expectation of privacy, the nature of the invasion, or both. Legislation and academic commentary offers some guidance on the factors that a court should take into account when determining reasonableness. Examples include:

• the nature, incidence, and occasion of the act, conduct or publication;
• the relationship, whether domestic or other, between the parties;
• the effect of the act, conduct or publication on the health and welfare, or the social, business or financial position, of the plaintiff or his family or relatives;
• the conduct of the plaintiff and of the defendant both before and after the act, conduct or publication, including any apology or offer or amends made by the defendant;
• the place where, and the occasion on which, the act was committed;
• the age of the parties;
• any office or position held by the plaintiff or defendant and the extent (if any) to which the act pertains to either office or position;
• the purpose for which information, documentation or other material (if any) obtained as a result of the act was, or was intended to be, used;
• whether the defendant, in doing the act, intentionally or recklessly trespassed on the property of another, and whether he or she, in doing the act, committed an offence; and
• if information was disclosed, whether:
  • it consisted of sensitive or intimate private facts concerning the plaintiff, or the plaintiff’s private, home or family life;
  • it contravened a duty of a public body not to disclose information; and
• the manner and extent of the disclosure.¹⁵

7.12 Consent by a plaintiff to the actions of a defendant, which would otherwise be actionable at common law, will, in most instances, provide an answer to any civil claim. A cause of action for invasion of privacy should seemingly be no different. Lack of consent by the plaintiff could be stipulated as an essential element of the cause of action.¹⁶ Otherwise, it could be an element to consider when assessing the reasonableness of the circumstances. Alternatively, consent could operate either as an exception to a general cause of action,¹⁷ or as a defence to an action for invasion of privacy.¹⁸

7.13 Regardless of how it is treated legislatively, the question of consent by the plaintiff raises a number of issues that would need to be determined by the courts. The most difficult of these issues is likely to be that of determining whether the consent is given genuinely and freely, obtained without fraud or duress, and demonstrates actual agreement between the parties.¹⁹

7.14 Sometimes the existence of the plaintiff’s consent is more readily apparent than in other circumstances. For example, a participant in a reality show who invites cameras into his or her home and reveals intimate details knowing that such information could be circulated or published in a newspaper, might reasonably be precluded from bringing an action for invasion of privacy on the basis that he or she had invited and consented to the defendant’s actions.²⁰

7.15 Consent may be given expressly or may be implied through the conduct of the plaintiff. The type of conduct that should be able to be interpreted as amounting to consent has been debated in courts and by commentators.²¹ This can be particularly problematic in the case of public figures who, it could be argued, impliedly consent in certain circumstances to invasions of their privacy due to their celebrity status. In some cases, celebrities have failed to substantiate their claims of privacy invasion due to the fact that they had courted publicity in the past, so that the alleged incident was seen to have occurred in circumstances where there was a low expectation of privacy. ²² In Campbell v Mirror Group Newspapers Ltd ,²³ the House of Lords expressed the view that the mere fact of being a celebrity does not amount to an implied consent to invasions of privacy. However, in Ms Campbell’s case, publication of photographs of her attending a Narcotics Anonymous meeting could be justified in the public interest of setting the record straight, since Ms Campbell had previously denied any drug use.²⁴

7.16 In other cases, public figure status has not precluded a celebrity plaintiff’s success in actions involving privacy issues.²⁵ The Douglas litigation notes that the actions of public figures are more open to scrutiny by the media, and that they may have fewer grounds on which to object to privacy invasions, particularly where they have courted media attention. ²⁶ However, the plaintiffs in that case had made it clear by their actions that they intended their wedding to be a private event, and could not be said to have consented to the unauthorised photography, and publication of it.

7.17 While the question of the plaintiff’s consent was examined in each of these cases, it was only one of a number of factors taken into consideration by the courts in determining whether the action should succeed.

INFORMATION IN THE PUBLIC DOMAIN

7.18 Where personal information has already been released, or forms part of a public record, should a plaintiff be precluded from bringing an action for invasion of privacy based on the release, or re-release, of that information? At first glance, the logical answer would appear to be in the affirmative, since its public availability would negate any claim of privacy the plaintiff may have. However, the situation may not be so clear cut.

7.19 There is a distinction to be drawn between information in the public domain and information which, though published, remains within the private sphere of the claimant and is personal to him or her. This is different from the issue of whether the information itself is confidential or has the “necessary quality of confidence” for the purpose of a claim based on breach of confidence. When information is published it loses the quality of confidence. However, it can still be private and personal. This is particularly so in the case of public records which are intended for a specific and limited purpose.

7.20 The question whether information contained in a public record could generate an action for privacy is one for the courts to decide. The mere fact that information is, or has been, contained in a public record will not automatically rob that information of its private nature.²⁷ For example, the United States Court of Appeals has held that information about an applicant’s HIV status, contained in a discrimination claim lodged with the New York City Commission on Human Rights, did not become a matter of public record so as to bar an action for invasion of privacy when that information was disclosed in a press release.²⁸

7.21 The private status of court records and criminal convictions also needs to be determined. In Tucker v News Media Ownership Ltd,²⁹ the New Zealand Court of Appeal awarded an interim injunction preventing a magazine publisher from disclosing details of the plaintiff’s prior criminal convictions. The Hong Kong Law Reform Commission is of the view that this suggests that matters of court record, although publicly available, could become private in nature over time.³⁰

7.22 In deciding against a public domain defence, the Hong Kong Law Reform Commission considered that the fact that information is contained in a public register or record should not of itself preclude a plaintiff from bringing a cause of action for invasion of privacy. The Commission noted that, although technically able to be accessed by the public, access to many public records is limited by logistical constraints and the requirement to pay a fee: referred to as the “practical obscurity” of personal information held in public registries.³¹ The Commission suggested that the law should facilitate opening government records to those with a legitimate interest in the contents, but not at the expense of privacy interests. Anyone wishing to defend an action of invasion of privacy by claiming that the information was already in the public domain, should first have to prove that the publication of the information was in the public interest.³²

FAULT

7.23 If a statutory cause of action is created, the question arises whether it should be restricted to wilful or intentional invasions of privacy or should extend at least to reckless acts. Legislation in some jurisdictions defines the cause of action as confined to acts committed “wilfully”.³³ The United States tort of intrusion into seclusion also requires the act of intrusion to be intentional. In these jurisdictions, the plaintiff must prove as an element of the cause of action that the defendant’s actions were intentional. The plaintiff need not prove that the defendant acted maliciously.³⁴ This is contrasted with the approach taken in Manitoba, where it is a defence to show that that the defendant “neither knew nor reasonably should have known” that the act, conduct or publication would violate the plaintiff’s privacy.³⁵

7.24 The advantage of restricting the fault element to intentional acts on the part of the defendant is that it would help to define the scope of the cause of action, and to negate some of the uncertainty inherent in the concept of a general right to privacy.³⁶ Including liability for negligent or accidental acts in relation to all invasions of privacy would, arguably, go too far.

7.25 However, in recommending a cause of action for intrusion into the solitude, seclusion or private affairs of another person, the Law Reform Commission of Hong Kong was of the view that the remedy should extend to reckless acts as well as intentional acts. The Commission considered that since “indifference to the consequences of an invasion of privacy is as culpable as intentionally invading another’s privacy, we consider that an intrusion must be either intentional or reckless before the intruder could be held liable”.³⁷

PUBLIC INTEREST

7.26 Courts and tribunals are often required to consider the public interest in making decisions in a variety of contexts. Of its nature, the statutory cause of action for invasion of privacy proposed in Chapter 6 requires that consideration of the public interest.³⁸

What is the public interest?

7.27 “Public interest” is not capable of clear definition. A broad understanding of the term, provided by Lord Denning MR in the context of the defence of fair comment in defamation, is that it refers to “a matter that is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others … ”.³⁹ As his Lordship pointed out, the most common way of delimiting the concept is to provide examples of it. Since there is no law of privacy as such, examples in this context are to be found either in areas of law that currently advance or protect privacy interests or in comparative law.

7.28 The area of law that protects privacy interests and that is of particular relevance is breach of confidence, not only because public interest is clearly established as a factor relevant to the scope of the doctrine or as a defence,⁴⁰ but also because, like privacy, it is capable of engaging the public interest in a wide variety of contexts. Breach of confidence cases suggest that “public interest” needs to be precisely focused. In contrast, comparative law suggests that freedom of expression is likely to be the broader public interest to which appeal is made in privacy cases.⁴¹

Should legislation particularise the public interest?

7.29 In breach of confidence cases, the public interest in the maintenance of confidences is sometimes outweighed by a countervailing public interest that requires disclosure.⁴² The countervailing public interest was originally described the disclosure of “iniquity”,⁴³ which Justice Ungoed-Thomas elaborated as follows:

The defence of public interest clearly covers and, in the authorities does not extend beyond, disclosure, which … must be disclosure justified in the public interest, of matters carried out or contemplated, in breach of the country’s security, or in breach of law, including statutory duty, fraud, or otherwise destructive of the country or its people, including matters medically dangerous to the public and doubtless other misdeeds of similar gravity.⁴⁴

[T]he court, in considering whether just cause for breaking confidence exists, must have regard to matters of a more weighty kind than a public interest in the truth being told.⁴⁶

7.32 The first applied public interest as a relevant factor in breach of confidence cases in situations where there was a “just cause or excuse” for breaking the confidence in question. In Malone v Metropolitan Police Commissioner, Megarry VC said:

There may be cases where there is no misconduct or misdeed but yet there is a just cause or excuse for breaking confidence. The confidential information may relate to some apprehension of an impending chemical or other disaster, arising without misconduct, of which the authorities are not aware, but which ought in the public interest to be disclosed to them.⁴⁹

7.34 The second development originates in Lord Denning’s statement that in “cases of confidential information it is a question of balancing the public interest in maintaining the confidence against the public interest in knowing the truth”.⁵¹ This changes the nature of the exercise from an inquiry into grave misconduct (or just cause or excuse), into an unstructured balancing exercise, effectively allowing the courts “a general discretion whether or not to enforce confidentiality”.⁵² As Justice Gummow has pointed out, this means that “the so-called public interest defence is not so much a rule of law as an invitation to judicial idiosyncrasy by deciding each case on an ad hoc basis as to whether, on the facts overall, it is better to respect or to override the obligation of confidence”.⁵³

7.35 This important critique of the use of public interest in confidentiality cases does not apply to the statutory cause of action for invasion of privacy that the Commission proposes in this Consultation Paper. Our proposal does not create a right of privacy that, like an obligation of confidence, prima facie requires protection. Moreover, the statutory cause of action for invasion of privacy is not necessarily burdened by the force of contractual obligations from which confidences often arise; nor, in cases that arise in the exclusive equitable jurisdiction, by the necessity of considering whether the defendant received the information in circumstances importing an obligation of confidence.⁵⁴ Rather, an invasion of privacy will only ground liability under the statutory cause of action if, in all the circumstances, it is not justified by some competing public interest(s), especially freedom of expression. Justices Gault and Blanchard identified the policy underlying this in Hosking v Runting:

[T]he scope of privacy protection should not exceed such limits on the freedom of expression as is justified in a free and democratic society … The significant value to be accorded freedom of expression requires that the tort of privacy must necessarily be tightly confined.⁵⁵

Public interest apart from freedom of expression

7.37 Privacy cases are capable of raising the “heads” of public interest associated with the iniquity doctrine in breach of confidence cases. As in breach of confidence cases, the public interest may require the disclosure of matters relating to national security,⁵⁶ the commission of criminal conduct⁵⁷ or threats to public health⁵⁸ or safety.⁵⁹ However, the limitations placed on the disclosure of iniquity in breach of confidence cases will not necessarily apply in privacy cases simply because, as pointed out above, the starting point is not the protection of the particular obligation of confidence, but the determination of whether or not privacy should be protected in the circumstances, which necessitates balancing the privacy interest in issue against the relevant public interest. For example, in the context of breach of confidence, the statement that the “public interest in the disclosure (to the appropriate authority or perhaps the press) of iniquity will always outweigh the public interest in the preservation of private and confidential information”,⁶⁰ is probably too wide since “iniquity” may need to be confined to serious crime⁶¹ or wrongdoing.⁶² By contrast, in the context of invasion of privacy, the statement is open to objection because it fails to accommodate the necessity of assessing, in all the circumstances of the case, the value of the public interest asserted against the value of the privacy interest asserted.

Freedom of expression

7.38 Freedom of expression encompasses such broad principles as the “right” to the free flow of information, the public’s “right” to know, and, incidentally, freedom of the press.⁶³ Subject to clearly established exceptions (such as restrictions arising from the law of defamation or the law protecting confidences), the common law has long recognised that the public interest requires the maintenance of freedom of expression. However, its scope needs careful delineation. In particular, “there is a wide difference between what is interesting to the public and what it is in the public interest to make known.”⁶⁴ It is only the latter that is of relevance in determining the scope of invasion of privacy.

7.39 In New Zealand, this is accommodated in the defence of “legitimate public concern”, which applies to the tort of invasion of privacy by public disclosure of private facts created in Hosking v Runting, where Justices Gault and Blanchard said:

The word ‘concern’ is deliberately used, so as to distinguish between matters of general interest or curiosity to the public, and matters which are of legitimate public concern … A matter of general interest or curiosity would not, in our view, be enough to outweigh the substantial breach of privacy harm the tort presupposes. The level of legitimate public concern would have to be such as outweighs the level of harm likely to be caused. For example, if the publication was going to cause a major risk of serious physical injury … a very considerable level of legitimate public concern would be necessary to establish the defence.⁶⁵

The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern. The limitations, in other words, are those of common decency, having regard to the freedom of the press and its reasonable leeway to choose what it will tell the public, but also due regard to the feelings of the individual and the harm that will done to him by the exposure.⁶⁷

• the social value of the facts published;
• the depth of the intrusion into ostensibly private affairs; and
• the extent to which the party voluntarily acceded to a position of public notoriety.⁷⁰

Competing public interests

7.43 More than one public interest may be operative in a privacy case. For example, while a public interest in disclosure may, in the circumstances, prima facie be sufficient to outweigh an asserted privacy interest, a countervailing public interest (for example, in the provision of a fair trial to an accused person) may itself outweigh the public interest in disclosure. In Hinch v Attorney-General, a case dealing with a contempt of court, Justice Gaudron gave the following example:

[T]he public interest to which the appellants relate their conduct is the public interest in disseminating information on the subject of child abuse, and the risk to children consequent upon the occupation in positions of authority and influence in youth organizations by persons convicted and/or charged with sexual offences against young people. That is a public interest which may (other relevant factors being established) outweigh the public interest in the individual’s right to privacy, in so far as that right exists, and to reputation. However, the public interest identified by the appellants is of a different order from those great and fundamental matters touching the maintenance of our democratic processes, and the maintenance of free and open society, which matters may, even in the abstract, take precedence over the public interest in protecting the administration of justice from risk of interference. The public interest in the integrity of the criminal justice system also is a matter of fundamental importance …. [T]he law regards as fundamental to the preservation of the rights and freedoms necessary for the maintenance of an open and democratic society that a person should not be convicted of a serious criminal offence save by the verdict of a jury given after a fair trial upon the evidence presented at that trial.⁷²

Balancing privacy and the public interest

7.45 The English courts balance the privacy rights listed in Article 8 of the European Convention on Human Rights and Fundamental Freedoms against the rights in freedom of expression contained in Article 10. In a speech in which the other members of the House agreed, Lord Steyn recently described the process of doing so as follows:

First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.⁷⁴

7.47 The statutory cause of action for invasion of privacy proposed in this Consultation Paper will require courts in New South Wales to approach privacy in much the same way as the English courts. This suggests that the proposed legislation should simply list “public interest” as a factor to be taken into account by the courts in the determination of whether, in the circumstances of the case, the plaintiff’s privacy has been invaded. This has the effect of putting the legal burden on plaintiffs of establishing that, in the circumstances of the particular case, the privacy interest they assert outweighs any public interest that defendants assert. No doubt, some evidential burden will generally rest on defendants in such cases.

7.48 The Commission notes that privacy legislation⁷⁷ and case law⁷⁸ considered throughout this Paper usually identify public interest as a defence to an action for invasion of privacy, or at least as exempting a matter of public interest from falling within the scope of such an action.⁷⁹ This is, however, in the context of the existence of a statutory or common law tort of privacy.

DAMAGE

7.49 Most of the privacy causes of action discussed in this Paper are actionable without proof of damage.⁸⁰ That is to say, a plaintiff will not be barred from bringing an action solely on the basis of an inability to demonstrate an injury or loss of the kind that the law considers an essential precondition of liability.⁸¹ In Grosse v Purvis, Senior Judge Skoien suggested that the violation of privacy with which he was concerned in that case must be one that “causes the plaintiff, emotional, physiological or mental distress, or prevents or hinders the plaintiff from doing something he or she is lawfully entitled to do”.⁸² This imports into the cause of action for invasion of privacy a requirement of some torts, particularly negligence.⁸³

7.50 The decision as to whether or not a general statutory cause of action for invasion of privacy should require a damage element is a matter of policy. On the one hand, it could be argued that, in a general statutory cause of action for invasion of privacy that made no attempt to define the concept of privacy except contextually, a “damage” requirement would perform the useful function of narrowing the potential reach of the cause of action at the outset. It would do this by limiting the availability of the action to cases in which plaintiffs could prove harm of a particular type (for example, harm to their dignity, reputation or economic interests). On the other hand, the Irish Working Group noted that it was especially important that a breach of privacy should be actionable without proof of damage given that it is a vindication of a constitutional, as well as a human, right.⁸⁴ Although there is no constitutional basis for protection of privacy in Australia, it may be argued that any general cause of action for breach of privacy would need to incorporate the human rights perspective of viewing privacy as a right in itself that should be protected against invasion, regardless of the type of damage that generally followed its breach.⁸⁵

CORPORATIONS

7.51 Most legislative or tortious causes of action for invasion of privacy restrict that action to natural persons, either explicitly or by implication.⁸⁶ This is perhaps not surprising, given that the genesis of most of these causes of action was the desire to protect individual autonomy, dignity and freedom, or to assert the “right to be let alone”.⁸⁷ Other causes of action based on property rights, contractual obligations, breach of confidence, and injurious falsehood have been relied on to protect the privacy interests of corporations.⁸⁸

7.52 When considering whether the right should also be afforded to corporations, the Report of the Working Group on Privacy in Ireland (“the Irish Working Group”) noted that bodies corporate are undoubtedly entitled to confidentiality, and that those interests were adequately protected under the current law of breach of commercial confidence. However, the Irish Working Group’s conclusion that privacy legislation should be introduced in Ireland was based on considerations of autonomy, dignity and individual sensibility, that are inherently personal in nature.⁸⁹ The Australian Law Reform Commission also took this view in its 1983 Report on Privacy.⁹⁰

7.53 In Lenah Game Meats, the High Court discussed the issue of whether, in the event of a tort of invasion of privacy being developed, it could be relied upon only by individuals, or by corporations as well.⁹¹ Five out of the six High Court judges suggested that any cause of action based on a right to privacy could, and should, only be enjoyed by individuals.⁹² Their Honours assumed that an action for invasion of privacy would be based on, or at least influenced by, principles such as dignity and personal autonomy, as distinct from commercial or property interests. Gleeson CJ observed that it would be “incongruous” to apply privacy rights to corporations,⁹³ while Gummow and Hayne JJ (with Gaudron J concurring) noted that, “by necessity” a corporation, being an artificial legal person, lacked the “sensibilities, offence and injury…..which provide a staple for any developing law of privacy”.⁹⁴ Justice Callinan alone suggested the view that a tort of privacy would be capable of extending to protect corporations or governments, but did not specify the rationale for this view.⁹⁵

7.54 By analogy, a corporation generally has no cause of action for defamation,⁹⁶ since corporations are not people with reputations to protect, but corporate entities with commercial interests at stake, that would be better addressed through other available remedies.⁹⁷ Exceptionally, corporations that are not public bodies and that are either not-for-profit corporations or employ less than 10 persons and not related to other corporations, can sue in defamation.⁹⁸ The “small business” exception was included following concerns that owners of small businesses, particularly family businesses, were so closely connected with their organisations that their reputations would inevitably suffer should their business be defamed.⁹⁹

7.55 Ultimately, the answer to this question will be determined by the decision as to what are the core privacy values sought to be protected under the proposed cause of action. If the action is to rest on fundamentally personal values of freedom, autonomy and dignity, then it seems most logical to restrict the action to individual plaintiffs.

DEATH

7.56 A related issue is the question of when the right to bring a cause of action for invasion of privacy should end. Most existing statutory causes of action for invasion of privacy end with the death of the person whose privacy has allegedly been invaded.¹⁰⁰ This is also the position under the Defamation Act 2005 (NSW), which provides that “a person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to:

(a) the publication of defamatory matter about a deceased person (whether published before or after his or her death), or

(b) the publication of defamatory matter by a person who has died since publishing the matter”.¹⁰¹

7.58 This position is contrasted with that in the Privacy and Personal Information Protection Act 1998 (NSW), which continues to regulate the collection, storage, use and disclosure of personal information held by government agencies for thirty years after an individual’s death.¹⁰³ While the regulation of personal information and the creation of a right to bring an action for invasion of privacy are very different concepts, it is relevant to note the divergent approaches.

A PERSONAL CLAIM

7.59 An issue related to the previous two issues is the so-called “relational right of privacy” in the law of the United States. We have seen that the “right to privacy” in United States law gives rise only to a personal claim in the sense that a plaintiff cannot succeed in an action for invasion of privacy simply by relying on the invasion of the privacy of some other person with whom he or she has or had a close relationship, for example a close family member. Rather, the plaintiff must establish an invasion of his or her own privacy.¹⁰⁴ In contrast, French law sometimes permits a plaintiff to assert the privacy right of another (for example, where that person is dead), and seems to take a more expansive approach to the circumstances in which the invasion of another person’s privacy is also an invasion the plaintiff’s.¹⁰⁵

7.60 The Commissions seeks submissions on the approach that ought to be taken in New of South Wales if a statutory cause of action for invasion of privacy is enacted.

1. See para 6.24.

2. Privacy Act, RSS 1978, c P-24 (Saskatchewan) s 6(1); Privacy Act, RSBC 1996, c 373 (British Columbia) s 1(2); and Privacy Act, RSNL 1990, c P-22 (Newfoundland and Labrador) s 3(2).

3. Privacy Bill 2006 (Ireland) cl 3(1).

4. Especially Hosking v Runting [2005] 1 NZLR 1, [117] (Gault and Blanchard JJ).

5. See para 7.8.

6. Hong Kong Law Reform Commission, Civil Liability for Invasion of Privacy (Report, 2004) [6.26]. See also the first element of the cause of action for public disclosure of private facts in Hosking & Hosking v Runting & Another [2005] 1 NZLR 1, [117].

7. See Law Reform Commission of Ireland, Report on Privacy (1998, ch 10, Head 1(3)(i) at 121.

8. R Mulheron, “A Potential Framework for Privacy? A Reply to Hello!” (2006) 69 Modern Law Review 679, [705]-[706]; D Butler, “A Tort of Invasion of Privacy in Australia? (2005) 29 Melbourne University Law Review 339. This would, of course, depend on the terms of the contract.

9. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [42].

10. This point is reflected in case law and in legislation: see, eg, Campbell v MGN Ltd [2004] 2 AC 457; Privacy Bill 2006 (Ireland) cl 4(4), which provides that “the claim of a plaintiff in a privacy action brought in respect of a disclosure shall not be defeated by reason only of the defendant’s proving that the disclosure related to an event or occurrence that happened in a public place or a place that, at the time of the disclosure, was visible to members of the public”.

11. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [42] (Gleeson CJ) (though it seems clear from the context that the Chief Justice did not intend this statement as a test of liability). Similar wording has been adopted by the New Zealand Court of Appeal in Hosking v Runting [2005] 1 NZLR 1, [117]. See also Restatement (Second) of Torts §652B, §652D, and §652E.

12. Consider para 4.29..

13. Consider para 4.20.

14. Consider para 4.52.

15. Privacy Act, RSNL 1990, c P-22 (Newfoundland and Labrador) s 3(2); Privacy Act, RSBC 1996, c 373 (British Columbia) s 1(3); Privacy Act, RSS 1978, c P-24 (Saskatchewan) s 6(2); Privacy Bill (2006) cl 4(1) and cl 4(2). See also Law Reform Commission of Ireland, Report on Privacy (1998), Ch 10, Head 1(3)(i) at 121.

16. See, for example, Privacy Bill 2006 (Ireland) cl 3(c).

17. As is the case in British Columbia: see Privacy Act RSBC 1996 c 373 (British Columbia) s 2(a). In NSW, the Listening Devices Act 1984 (NSW) s 6(2)(a), and the Workplace Surveillance Act 2005 (NSW) s 14, recognise consent as exceptions to the general prohibition against surveillance.

18. See Privacy Act, CCSM c P125 (Manitoba) s 5(a); Privacy Act, RSNL 1990, c P-22 (Newfoundland and Labrador) s 5(1)(a); Privacy Act, RSS 1978, c P-24 (Saskatchewan) s 4(1)(a). See also Hong Kong Law Reform Commission, Civil Liability for Invasion of Privacy (Report, 2004) [6.89]-[6.91] and [7.48]-[7.50].

19. A related, and more esoteric question, is whether it is indeed possible to refuse consent in some circumstances. For example, it is not possible to refuse to consent to being subjected to video surveillance when entering a bank or a service station, or using an ATM. For a more detailed discussion of consent in the context of surveillance, see NSWLRC, Surveillance: An Interim Report, Report No 98 (2001), [2.83]-[2.85].

20. See D Butler, “A Tort of Invasion of Privacy in Australia?” (2005) 29 Melbourne University Law Review 339.

21. See discussions in Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 and Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457. See also J Caldwell, “Protecting Privacy Post Lenah: Should the Courts Establish a New Tort or Develop Breach of Confidence?” (2003) 26(1) University of New South Wales Law Journal 90, 101; D Butler, “A Tort of Invasion of Privacy in Australia?” (2005) 29 Melbourne University Law Review 339.

22. Hosking & Hosking v Runting & Another [2005] 1 NZLR 1.

23. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457.

24. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, [57]-[58].

25. Von Hannover v Germany (2005) 40 EHRR 1. For full discussion, see para 5.59-5.64.

26. Douglas and Others v Hello! Ltd [2001] QB 967. For full discussion, see para 3.12-3.20.

27. The Irish Privacy Bill provides that the plaintiff’s claim will not be defeated merely because, at the time of disclosure, the information was contained in a public register, or had already been disclosed: see Privacy Bill 2006 (Ireland) cl 4(3). This has also been recommended in the Hong Kong Law Reform Commission’s Report at [7.139] (Recommendation 14).

28. Doe v City of New York 15 F 3d 264 (2d Cir. 1994).

29. Tucker v News Media Ownership Ltd [1986] 2 NZLR 716. For a full discussion, see para 2.71-2.74.

30. Hong Kong Law Reform Commission, Civil Liability for Invasion of Privacy (Report, 2004), [7.106].

31. Hong Kong Law Reform Commission, Civil Liability for Invasion of Privacy (Report, 2004),[7.109].

32. Hong Kong Law Reform Commission, Civil Liability for Invasion of Privacy (Report, 2004), [7.110]-[7.111].

33. Privacy Act, RSNL 1990,c P-22(Newfoundland and Labrador) s 3 (1); Privacy Bill 2006 (Ireland) cl 2(1).

34. See para 4.46-4.47. Compare para 4.77-4.79.

35. Privacy Act, CCSM c P125 (Manitoba) s 5(b).

36. See Ireland, Report of the Working Group on Privacy, March 2006, [8]. The Irish Working Group also considered that, in the context of alleged violations of Constitutional rights generally, and of privacy in particular, the courts would find that the “legitimate countervailing factors” would justify restricting causes of action to intentional acts only: at [7.08].

37. Hong Kong Law Reform Commission, Civil Liability for Invasion of Privacy (Report, 2004) [6.71].

38. See para 6.25.

39. London Artists Ltd v Littler [1969] 2 QB 375 at 391 (Lord Denning MR).

40. See F Gurry, Breach of Confidence (Clarendon Press, 1984) ch XV; R Toulson and C Phipps, Confidentiality (2nd ed, Thomson, 2006) ch 6; R Meagher, D Heydon and M Leeming, Meagher Gummow and Lehane’s Equity Doctrines and Remedies (4th ed, LexisNexis Butterworths, 2002) ch 41.

41. See para 3.3-3.28, 4.13-4.14, 4.31-4.41, 4.63-4.64.

42. Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 282 (Lord Goff). See para 3.3-3.5.

43. Gartside v Outram (1857) 26 LJ Ch (NS) 113, 114 (Wood VC) (“there is no confidence as to the disclosure of iniquity”).

44. Beloff v Pressdram [1973] 1 All ER 241, 260.

45. Castrol Australia Pty Ltd v EmTech Associates Pty Ltd (1980) 51 FLR 184, 213-214.

46. Castrol Australia Pty Ltd v EmTech Associates Pty Ltd (1980) 51 FLR 184, 215.

47. For an analysis of the authorities, see AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464, [173]-[191] (Campbell J).

48. See para 3.3-3.5.

49. Malone v Metropolitan Police Commissioner [1979] Ch 344, 362.

50. Lion Laboratories Ltd v Evans [1985] QB 526.

51. Woodward v Hutchins [1977] 1 WLR 760, 764. This is the approach now effectively required by the Human Rights Act 1998 (UK): see especially Associated Newspapers Ltd v HRH the Prince of Wales [2006] EWCA 1776, esp [67]-[69].

52. R Toulson and C Phipps, Confidentiality (2nd ed, Thomson, 2006), [6-017].

53. Smith Klein Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73, 111.

54. See para 2.77- 2.85.

55. Hosking v Runting [2005] 1 NZLR 1, [129] (Gault and Blanchard JJ).

56. Consider A v Hayden (1984) 156 CLR 532. See further R Toulson and C Phipps, Confidentiality (2nd ed, Thomson, 2006) ch 5; R Meagher, D Heydon and M Leeming, Meagher Gummow and Lehane’s Equity Doctrines and Remedies (4th ed, LexisNexis Butterworths, 2002) [41-120].

57. See A v Hayden (1984) 156 CLR 532; Allied Mills Ltd v Trade Practices Commission (1981) 55 FLR 125.

58. W v Egdell [1990] Ch 359.

59. Hubbard v Vosper [1972] 2 QB 84 (teachings of Scientology).

60. Allied Mills Ltd v Trade Practices Commission (1981) 55 FLR 125, 166 (Sheppard J).

61. A v Hayden (1984) 156 CLR 532, 545-546 (Gibbs CJ). See also Castrol Australia Pty Ltd v Emtech Associates Pty Ltd (1980) 51 FLR 184.

62. Consider Allied Mills Ltd v Trade Practices Commission (1981) 55 FLR 125.

63. See Lord Wilberforce’s classic speech in British Steel Corporation v Granada Television Ltd [1981] AC 1096, 1168-1169. Consider also European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, <www.echr.coe.int> at 12 April 2007, art 10 (entered into force on 3 September 1953) (“ECHR”).

64. British Steel Corporation v Granada Television Ltd [1981] AC 1096, 1168 (Lord Wilberforce).

65. Hosking v Runting [2005] 1 NZLR 1, [133]-[134].

66. Hosking v Runting [2005] 1 NZLR 1, [135].

67. Restatement (Second) of Torts § 652D comment h.

68. See also para 4.31-4.42, 4.54-4.55, 4.63-4.64.

69 William Prosser, “Privacy” (1960) 48 California Law Review 390, 412.

70. 62A Am Jur 2d , Privacy, s 187.

71. See para 4.85.

72. Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 86.

73. For example, Children and Young Persons (Care and Protection) Act 1998 (NSW) s 27 (mandatory reporting where child at risk of harm).

74. In re S (a child) [2005] 1 AC 993, [17] (Lord Steyn).

75. Hosking v Runting [2005] 1 NZLR 1, [132] (Gault and Blanchard JJ).

76. Hosking, [235] (Tipping J).

77. For example, Privacy Act, RSNL 1990, c P-22 (Newfoundland and Labrador) s 5(2); Privacy Act, RSS 1978, c P-24 (Saskatchewan) s 4(2); Privacy Act, CCSM c P125 (Manitoba) s 5(f).

78. Hosking v Runting [2005] 1 NZLR 1, especially [129] (Gault and Blanchard JJ).

79. Privacy Act, RSBC 1996, c 373 (British Columbia) s 2(3).

80. See especially Privacy Act 1990 (Newfoundland and Labrador) s 3(1); Privacy Act 1978 (Saskatchewan) s 2; Privacy Act (Manitoba) s 2(2); Privacy Act 1996 (British Columbia) s 1(1); and Privacy Bill 2006 (Ireland) cl 2(2); Privacy Act 1990 (Newfoundland and Labrador) s 4; and Privacy Act 1978 (Saskatchewan) s 3, discussed at para 6.11-6.17. The American tort of appropriation of name or likeness is an exception: see para 4.56-4.58.

81. The requirement to prove loss before a matter may be actionable is separate from looking at the extent of loss or damage when determining an appropriate remedy or assessing damages.

82. Grosee v Purvis [2003] QDC 151, [444]. Compare Jane Doe v Australian Broadcasting Corporation [2007] VCC 281, [163]-[164] (Judge Hampel), where the relevant wrong or tort was actionable without proof o damage.

83. Where damage must be capable of being described in terms that make that measurement possible: see Harriton v Stephens [2006] HCA 15 (a “wrongful life” case, where it was impossible to prove “damage” by comparing a life with disabilities with non-existence). See further D Nolan, “New Forms of Damage in Negligence” (2007) 70 Modern Law Review 59.

84. Ireland, Report of the Working Group on Privacy, March 2006, [7.09].

85. While the absence of demonstrable loss or damage may not be a barrier to initiating an action for breach of privacy, it could be a factor in calculating the type of remedy and/or quantum of damages: see Chapter 8.

86. See Privacy Act 1990 (Newfoundland and Labrador) s 2; Privacy Bill 2006 (Ireland) cl 1. The Privacy Act 1978 (Saskatchewan) refers to violating the privacy of a “person” without defining the term.

87. See Chapters 3-5 for an outline of the existing causes of action for privacy in other jurisdictions.

88. See C Doyle and M Bagaric, “The Right to Privacy and Corporations” (2003) 31 Australian Business Law Review 237. See, more generally, H Beverley-Smith, A Ohly and A Lucas-Schloetter, Privacy, Property and Personality: Commercial Law Perspectives on Commercial Appropriation (Cambridge University Press, 2005).

89. Ireland, Report of the Working Group on Privacy, March 2006, [7.06].

90. Australian Law Reform Commission, Privacy, Report No 22 (1983) vol 1, [27].

91. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.

92. This view was obiter only.

93. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [43]. On the same issue, Justice Kirby noted the influence of Article 17 of the ICCPR on the development of privacy law, stating that it appears to “relate only to the privacy of the individual”: at [190].

94. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [126].

95. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [328].

96. Defamation Act 2005 (NSW) s 9(1), reflecting provisions originally inserted in 2002: see Defamation Amendment Act 2002 (NSW) s 8A.

97. See New South Wales, Parliamentary Debates, Legislative Council, 18 October 2005, 18681 (The Hon Henry Tsang, MLC), during debate on the Defamation Act 2005 (NSW).

98. Defamation Act 2005 (NSW) s 9(2)-(4).

99. See discussion and amendments moved in Committee in New South Wales, Parliamentary Debates, Legislative Council, 5 December 2002, 7772ff.

100. Privacy Act 1996 (British Columbia) s 5; Privacy Act 1990 (Newfoundland and Labrador) s 11; Privacy Act 1978 (Saskatchewan) s 10; and Privacy Bill 2006 (Ireland) cl 15.

101. Defamation Act 2005 (NSW) s 10.

102. Hong Kong Law Reform Commission, Civil Liability for Invasion of Privacy (Report, 2004)., Recommendation 29, [12.24].

103. Privacy and Personal Information Protection Act 1998 (NSW) s 4 (definition of “personal information”).

104. See para 4.11. See especially Restatement (Second) of Torts § 652I.

105. See para 5.13.