BREACH OF PRIVACY IN AUSTRALIA

Atul Kuver

Do Threats to Personal Privacy

Require the Recognition of a Tort of Breach of Privacy

in Australia?

1 ©Atul Kuver 2010

Introduction

This essay examines whether threats to privacy requires the recognition of a tort of

breach of privacy in Australia. Laws of trespass, nuisance, defamation and breach of

confidence provide some protection to individual privacy, but there are gaps: cases

where the courts have considered that an invasion of privacy deserves a remedy that

existing law may not offer.1 This essay argues that case-by-case investigation of

whether a tort of breach of privacy should exist is a slow process and may not result

in a separate cause of action.

Breach of confidence is an equitable cause of action that is emerging as a ‘powerful

weapon in the protection of privacy.’2 The analysis will show — with particular focus

on breach of confidence — that while existing causes of action are satisfactory in

some circumstances, they do not provide general protection for invasion of individual

privacy. Overall, the enquiry suggests that the uncertainty associated with the

protection of privacy should be resolved through legislation to create a general cause

of action for breach of privacy.

Privacy protection under current legislation

A constitutional right to privacy does not exist in Australia but legislation can provide

certain but incomplete protection.3 The Privacy Act 1988 (Cth) provides a system for

1 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Campbell v

MGN Ltd [2004] UKHL 22; Doe v ABC & Ors [2007] VCC 281; Grosse v Purvis [2003] QDC 151; Hosking v Runting [2005] 1 NZLR 1. 2 Michael Rivette, 'Litigating privacy cases in the wake of Giller v Procopets' (2010) 15 MALR 283, 283.

3 Department of Parliamentary Services, Parliament of Australia, Do Australians have a legal right to

privacy? (2005).

2 ©Atul Kuver 2010

the collection and correction, use and disclosure of personal information, but it may

not provide adequate legal protection to avoid breaches of individual privacy.4

The concept of privacy

In Lenah Game Meats,5 Gleeson CJ, in reply to the respondent’s contention that

Australian law should recognise invasion of privacy stated that ‘the lack of precision

of the concept of privacy is a reason for caution in declaring a new tort of the kind.’6

Gummow and Hayne JJ also stated that ‘invasions of privacy … in many instances

would be actionable at general law under recognised causes of action.’7

Development of law in the area of breach of privacy

Victoria Park and Lenah Game Meats – Unlocking the door to a new tort

The presumed rule from Victoria Park8 was that courts had not developed an

enforceable right to privacy.9 However, in Lenah Game Meats, it was stated that

‘Victoria Park does not stand in the path of the development of such a cause of

action.’10

This declaration ‘unlock[ed] the door’11

to the recognition of a common law

tort to protect privacy.

4 Department of Parliamentary Services, Parliament of Australia, Do Australians have a legal right to privacy? (2005). 5 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. 6 Ibid 225-226. 7 Ibid 255 [123].

8 Victoria Park Racing & Recreation Grounds Co Pty Ltd v Taylor (1937) 58 CLR 479.

9 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 248.

10 Ibid 248 [107].

11 Mark Johnston, 'Should Australia force the square peg of privacy into the round hole of confidence

or look to a new tort?' (2007) 12 MALR 441, 445.

3 ©Atul Kuver 2010

Grosse v Purvis and Doe v ABC – Recognition of a tort of breach of privacy by lower

courts

In Grosse v Purvis,12

the Queensland District Court declared protection against a

breach of privacy. Skoien SJ stated, ‘[i]t is a bold step to take … the first step in this

country to hold that there can be a civil action for damages based on the actionable

right of an individual person to privacy.’13

Similarly in Doe v ABC,14

the Victorian Supreme Court found that the defendant

breached the plaintiff’s privacy by unjustified publication of personal information.

Hample J described the decision as ‘taking the next, incremental step in the

development of the recognition of the right to protection against, or provide remedy

for, breach of privacy’.15

Hample J considered it inappropriate to ‘attempt to

formulate an exhaustive definition of privacy.’16

As a consequence no elements of the

tort were defined.

Giller v Procopets – Rejecting the first recognition of the tort of breach of privacy

In Giller v Procopets,17

Gillard J concluded that both English and Australian law had

not recognised a cause of action based on breach of privacy.18

This decision has been

criticised on the basis that Gillard J gave no detailed discussion of the analysis in

Lenah Game Meats and did not consider Grosse v Purvis.19

12 Grosse v Purvis [2003] QDC 151. 13 Ibid 99 [442]. 14 Doe v ABC & Ors [2007] VCC 281, 54 [164]. 15

Ibid 54 [162]. 16

Ibid. 17

Giller v Procopets [2004] VSC 113. 18

Ibid 76 [187]. 19

Doe v ABC & Ors [2007] VCC 281, 52-53; Mark Johnston, 'Should Australia force the square peg of privacy into the round hole of confidence or look to a new tort?' (2007) 12 MALR 441, 446.

4 ©Atul Kuver 2010

On Appeal,20

Neave JA responded to the contention that the trial judge had failed to

consider authorities that supported the development of a tort of privacy by considering

the developments in England,21

New Zealand22

and Australia.23

Neave JA concluded

since ‘Ms Giller ha[d] a right to compensation on other grounds, it [was] unnecessary

to say more about whether a tort of privacy should be recognised by Australian law.’24

Although two lower level courts have claimed that the tort of breach of privacy exists

in Australia,25

appellate courts have been reluctant to recognise a common law right to

privacy.26

Protection of privacy through Common Law and Equitable causes of action

Trespass to person

Trespass to person exists to protect the physical integrity of the person. The elements

are that interference must be intentional (or negligent)27

and direct.28

In Wainwright v

Home Office,29

the room used to strip-search Mrs Wainwright had an uncurtained

window through which she could be seen. She was not touched so the interference

was not a battery. The tort of trespass was not able to protect Mrs Wainwright’s

privacy.

20 Giller v Procopets (2008) 40 Fam LR 378. 21 Campbell v MGN Ltd [2004] UKHL 22. 22 Hosking v Runting [2005] 1 NZLR 1. 23 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. 24 Giller v Procopets (2008) 40 Fam LR 378, 482. 25

Doe v ABC & Ors [2007] VCC 281; Grosse v Purvis [2003] QDC 151. 26

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Giller v Procopets (2008) 40 Fam LR 378; Giller v Procopets [2004] VSC 113. 27

Williams v Milotin (1957) 97 CLR 465. 28

Hutchins v Maughan (1947) VLR 131. 29 Wainwright v Home Office [2003] UKHL 53.

5 ©Atul Kuver 2010

Trespass to land

Trespass to land occurs through direct physical interference with a person’s exclusive

possession of land.30

TV crew entering a premises will constitute trespass where there

is no licence to enter.31

However, for a person in a public place intrusion is possible

through the use of cameras and telecommunication devices.32

The person suffering

interference is on land where they have no right to exclusive possession and a cause

of action in trespass to land would not succeed.

Private nuisance

Private nuisance is an unlawful and unreasonable interference with a person’s use or

enjoyment of land, or of some right over, or in connection with it.33

This action would

also be unsatisfactory in situations where the person does not have possession of

land.34

Defamation

Defamation laws protect personal reputation.35

It involves publishing charges that

lower a person’s reputation in the view of ordinary people in the community. The

Defamation Act 2005 is a starting point when considering this cause of action. But the

plaintiff in Lenah Game Meats did not pursue an action in defamation, which

indicated reluctance in using this cause of action for specific invasions of privacy.

30 League against Cruel Sports v Scott 3 WLR 400; Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182. 31

Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457. 32

Campbell v MGN Ltd [2004] UKHL 22. 33

Hargrave and Goldman (1963) 110 CLR 40. 34

Campbell v MGN Ltd [2004] UKHL 22. 35 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 212.

6 ©Atul Kuver 2010

Breach of confidence – Powerful but incomplete

For an action of breach of confidence, there must be a pre-existing relationship of

confidence between the parties and disclosure of personal information must breach

that confidence.36

In Lenah Game Meats, Gleeson CJ stated that ‘[i]f the activities

filmed were private, then the law of breach of confidence is adequate to cover the

case.’37

Gleeson CJ suggested a test to determine types of information that could be

regarded as confidential, in circumstances where it had been obtained without an

existing relationship of confidence, but obtained improperly or surreptitiously.

Gleeson CJ said that ‘[t]he nature of the information must be such that it is capable of

being regarded as confidential.’38

The situation in law seems to be that an action of

breach of confidence may be possible without a pre-existing relationship of trust if the

Gleeson CJ test is satisfied.

The significant outcome in Giller v Procopets39

was that Ms Giller was entitled to

compensation for mental distress and embarrassment. According to Michael Rivette,

‘[t]his aspect of the case was critical to the development of privacy law in Australia

[as] [m]ost breaches of privacy do not result in the victim suffering ‘recognised

psychological disorders’.’40

Rivette suggests that by lowering damage threshold in

breach of confidence makes it an action that can protect privacy.41

36 N A Moreham, 'Breach of confidence and misuse of private information: how do the two actions work together?' (2010) 15 MALR 265. 37

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 225. 38

Ibid 224. 39

Giller v Procopets (2008) 40 Fam LR 378. 40

Michael Rivette, 'Litigating privacy cases in the wake of Giller v Procopets' (2010) 15 MALR 283, 285. 41 Ibid.

7 ©Atul Kuver 2010

Rivette declares that breach of confidence can provide far greater privacy protection

compared to countries like New Zealand, where a tort of breach of privacy exists.42

But his argument only examines the situation where information is obtained

improperly or surreptitiously. An alternative scenario is illustrated below.

The scenario

A person takes a photo of their partner in the shower with the partner’s consent. It is

transmitted to a third person. No relationship of trust and confidence exists between

the person in the photo and the third person. Could the person in the photo succeed in

an action of breach of confidence against the third person if the third person publishes

the photo?

In Lenah Game Meats, the information was obtained surreptitiously and then passed

to the third person for broadcasting. The alternative scenario is distinguishable

because consent was given when the photo was taken. The Gleeson CJ test would fail

in the alternative scenario because the information was not tortiously obtained.43

Reasons for developing the tort of breach of privacy through the legislature

Lord Hoffman’s commentary suggests that filling the gaps in the protection of privacy

‘requires a detailed approach which can be achieved only by legislation rather than

the broad brush of common law principle.’44

Privacy also involves policy issues

42

Michael Rivette, 'Litigating privacy cases in the wake of Giller v Procopets' (2010) 15 MALR 283, 287. 43

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 231. 44 Wainwright v Home Office [2003] UKHL 53, [33].

8 ©Atul Kuver 2010

which may require community consultation, a process that is only available through

the legislature.45

The development of privacy protection has not generated the expected certainty and

‘may result in piecemeal and fragmented privacy protection’46

with different

approaches taken by different jurisdictions. The Australian Law Reform Commission

proposed that for consistent privacy protection, a cause of action for a serious

invasion of privacy should be recognised though legislation.47

Conclusion

This essay examined whether threats to personal privacy requires a new tort of breach

of privacy. The lack of precision with the concept of privacy has contributed to the

reluctance in recognising a new tort. The case-by-case development of privacy

protection has not significantly alleviated the uncertainty surrounding privacy laws.

Analysis of existing laws shows that they provide certainty and protection in specific

situations, but general application can be limited. Breach of confidence can be used as

a cause of action when information is obtained improperly or surreptitiously. But an

alternative scenario demonstrated that this too can fail. Overall, the enquiry suggests

that uncertainty, policy issues, fragmented protection, and the reluctance of appellate

courts are significant reasons for a tort of breach of privacy to be recognised through

legislation.

45

Hosking v Runting [2005] 1 NZLR 1, [5]. 46

Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No. 108 (2008), Vol. 3, 2536, [74.2]. 47

Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No. 108 (2008), Vol. 3, 2536, [74.3].

9 ©Atul Kuver 2010

Bibliography

A Articles/Books/Reports

Australian Law Reform Commission, For Your Information: Australian Privacy Law

and Practice, Report No. 108 (2008), Vol. 3

Dean, Robert, 'A right to privacy?' (2004) 78 ALJ 114

Moreham, N A, 'Breach of confidence and misuse of private information: how do the

two actions work together?' (2010) 15 MALR 265

Johnston, Mark, 'Should Australia force the square peg of privacy into the round hole

of confidence or look to a new tort?' (2007) 12 MALR 441

Rivette, Michael 'Litigating privacy cases in the wake of Giller v Procopets' (2010) 15

MALR 283

Witzleb, Normann 'Giller v Procopets: Australia's privacy protection shows signs of

improvement' (2009) 17 TLJ 121

B Cases

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

199

Campbell v MGN Ltd [2004] UKHL 22

Doe v ABC & Ors [2007] VCC 281

Giller v Procopets (2008) 40 Fam LR 378

Giller v Procopets [2004] VSC 113

10 ©Atul Kuver 2010

Grosse v Purvis [2003] QDC 151

Hargrave and Goldman (1963) 110 CLR 40

Hosking v Runting [2005] 1 NZLR 1

Hutchins v Maughan (1947) VLR 131

League against Cruel Sports v Scott 3 WLR 400

Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457

Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182

Victoria Park Racing & Recreation Grounds Co Pty Ltd v Taylor (1937) 58 CLR 479

Wainwright v Home Office [2003] UKHL 53

Williams v Milotin (1957) 97 CLR 465

C Legislation

Defamation Act 2005 (SA)

Privacy Act 1988 (Cth)

D Other

Department of Parliamentary Services, Parliament of Australia, Do Australians have a

legal right to privacy? (2005)