Professor David Lindsay coined the phrase “digital eternity”; the permanent and instantly accessible medium in which digital information remains available once published online. (1)
The Australian Law Reform Commission (ALRC), acknowledging the modern challenges for protecting an individual’s rights to privacy and the need to balance these with freedom of expression to report on matters in the public interest, have put forward the design of a new tort of serious invasion of privacy. This was published in a report earlier this month. (2)
This report follows previous recommendations to develop a statutory tort in order to overcome some of the perceived limitations of State defamation laws and equitable breach of confidence, neither of which are explicitly designed to protect privacy rights, as well as keeping pace with a rapidly-changing digital landscape. However, the new report is noteworthy in that it is the first time that the key elements of the proposed cause of action have been identified and described in detail.
Proposed new cause of action
The proposed new civil cause of action would be given force through Commonwealth legislation, and would assume the attributes of a tort to allow for certainty, consistency and coherence in its application (3). The essential features of the proposed new tort are:
- The breach must involve an intrusion into seclusion or misuse of private information;
- The victim must have held a reasonable expectation of privacy in those circumstances;
- The breach must have been committed either intentionally or recklessly;
- The breach must be serious;
- The breach need not cause tangible loss or damage, damages for emotional distress may also be awarded;
- A Court must be satisfied that the public interest in privacy must outweigh any countervailing public interests.
The last point is described as the “crucial ‘balancing exercise’”(4). This would involve a Court balancing any intrusion against other public interest considerations such as freedom of expression, freedom of the media to investigate and report on matters of public concern and importance, the proper administration of government, open justice, public health and safety, national security and the prevention and detection of crime and fraud.
In addition to the above elements making up the proposed tort, a range of defences would also be available to a prospective defendant (5).
Should a new statutory cause of action be adopted?
Importantly, it was outside the scope of the ALRC’s terms of reference to recommend that such a tort be adopted as necessary or desirable in Australia, given there have already been four other recent law reform enquiries on the topic. However, given that three of those enquiries have recommended the enactment of a statutory cause of action, the prevailing sentiment seems to be that some form of additional protection for serious breaches of privacy to an individual is warranted.
Whether this protection can be more efficiently derived from a newly-enacted privacy statute, from Court-developed common law principles or from other sources remains open for debate. With the ALRC having crystallised the scope of the proposed new cause of action, a noteworthy step in the recurring debate on these principles, the ultimate form that any protection might take and how that will sit with an evolving digital landscape and a free and independent press, has certainly been taken.
(1) Prof. D. Lindsay, Digital eternity or digital oblivion: some difficulties in conceptualising and implementing the right to be forgotten, in The Right to Privacy in the Light of Media Convergence: Perspectives from Three Continents, 2012
(2) Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era (ALRC Report 123), Published 3 September 2014
(3) Ibid, 1.9
(4) Ibid, 1.12
(5) These include the defences of lawful authority, conduct incidental to defence of persons or property, consent, necessity, absolute privilege, publication of public documents and fair reporting of proceedings.