: ALRC proposes a privacy tort – again

ALRC proposes a privacy tort – again

Normann Witzleb

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.

With its proposal for a statutory privacy wrong, the ALRC reaffirmed a recommendation from its 2008 landmark report on privacy. The New South Wales Law Reform Commission in 2009 and the Victorian Law Reform Commission in 2010 also made similar calls for enhanced protections. Despite these repeated calls and the growing community concern over loss of privacy in recent years, successive Australian governments have shown appetite more for eroding privacy protections than for substantially advancing Australia’s privacy laws. It is likely that the ALRC’s recommendations for a statutory privacy tort will fall on barren ground and that Australians will continue to depend on the inadequate protections provided by other causes of action where these incidentally protect privacy interests.

NORMANN WITZLEB teaches law at Monash University
(2014) 39(4) AltLJ 272
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