In ALRC Report 123, the ALRC recommended that, if a statutory cause of action for serious invasion of privacy is not enacted, legislation should provide that, in an action for breach of confidence concerning a serious invasion of privacy by the misuse, publication or disclosure of private information, the court may award compensation for the plaintiff’s emotional distress (Recommendation 13–1).

While the ALRC recommended legislative reform, it recognised the possible trajectory of the common law in the same direction.

Subsequently, in January 2015, the Supreme Court of Western Australia, in Wilson v Ferguson [2015] WASC 15 (Mitchell J) found that the plaintiff in a case involving ‘revenge porn’ should be awarded equitable compensation ‘for the damage she has sustained in the form of significant embarrassment, anxiety and distress’. This case is an example of the way in which ALRC reports may influence the development of the common law.

The ALRC report was also mentioned in a recent English Court of Appeal decision in Google v Vidal-Hall [2015] EWCA Civ 311, where the Court discussed whether the English action for invasion of privacy should be classified as a tort. The Court concluded that misuse of private information should be recognised as a tort.