In its inquiry on Serious Invasions of Privacy in the Digital Era, the Australian Law Reform Commission (‘ALRC’) considered whether Australians whose privacy is invaded should have a civil action for redress. In its Report 123, tabled before Parliament on 3 September, the ALRC recommends new legislation that would give a legal remedy for serious invasions of privacy. Unfortunately, the current Commonwealth government is already on record for opposing such legislation.
The ALRC proposal, which largely follows an earlier Discussion Paper, is for federal legislation introducing a new tort of serious invasion of privacy. The ALRC recommends that the tort would focus on ‘intrusion into seclusion’ and ‘misuse of private information’. It would be confined to intentional or reckless invasions of privacy, so that negligent invasions of privacy would not be actionable, and be subject to a requirement that the invasion must be serious. Importantly, it is proposed that an action could only succeed if the court was satisfied that the public interest in privacy outweighed any countervailing public interests. This requirement for a balancing exercise would ensure that freedom of speech, freedom of the media, public health and safety and national security would not be disproportionately curtailed.