Background

Previous ALRC reports

74.7 The ALRC first considered the protection of privacy through tort law in Unfair Publication: Defamation and Privacy.^[4] After reviewing the case law relating to privacy in Australia, proposals by academics and state legislatures aimed at protecting privacy, and approaches to the protection of privacy adopted in overseas jurisdictions, the ALRC proposed a tort of ‘unfair publication’. The tort was designed to protect from publication the details of individuals’ sensitive private facts relating to their home life, private behaviour, health, and personal and family relationships. It was designed to protect against the appropriation for commercial or political purposes of a person’s name, identity, reputation or likeness.^[5]

74.8 Significantly, the ALRC intended that the scope of the tort would be limited to the publication of ‘sensitive’ facts.^[6] The publication would have to cause distress, embarrassment or annoyance to a person in the position of that individual for an action in tort to lie.^[7] For example, the ALRC suggested that the publication, without consent, of a photograph taken in a private place could give rise to an action in the tort of unfair publication where the photograph related to the individual’s home life, private behaviour, health, or personal and family relationships.^[8]

74.9 The ALRC also recommended that an action in tort be available to a person whose name, identity or likeness was published by another person (Y) in circumstances where Y had not obtained the consent of the first person (X), and the publication was for Y’s own benefit with the intent to exploit X’s name, identity or likeness. The ALRC confined its recommendation on this issue to matters published for commercial purposes or candidature of office.^[9]

74.10 In its later report, Privacy (ALRC 22), the ALRC declined to recommend the creation of a general tort of invasion of privacy. In the ALRC’s view at that time, ‘such a tort would be too vague and nebulous’.^[10]

Privacy Act 1988 (Cth)

74.11 During the passage through Parliament of the Privacy Bill 1988 (Cth), the Senate proposed an amendment to the Bill to provide for an action for breach of privacy. The proposed amendment provided that ‘interference with the privacy of an individual taking place after the commencement of this Act shall give rise to an action at the suit of the individual for breach of privacy’.^[11] The remedies that the Federal Court or the Supreme Court of a state or territory could award under such an action also were stipulated.^[12]

74.12 The Senate’s proposed amendment was narrower than the general tort of invasion of privacy that the ALRC declined to proceed with in ALRC 22. The proposed statutory cause of action only would lie ‘against an agency or a tax file number recipient or both’.^[13] The House of Representatives rejected the proposed amendment.^[14]

Article 17 of the ICCPR

74.13 As has been noted elsewhere in this Report,^[15] on 13 August 1980 the Australian Government ratified the International Covenant on Civil and Political Rights (ICCPR). Article 17 of the ICCPR states:

1. No person shall be subjected to arbitrary or unlawful interferences with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.^[16]

74.14 In 1988, the Office of the United Nations (UN) High Commissioner for Human Rights released General Comment Number 16, which discussed how the UN interprets art 17 and how it should be promoted through domestic law. It is noted in the General Comment that art 17 should protect a nation’s citizens against all interferences and attacks on privacy, family, home or correspondence, ‘whether they emanate from State authorities or from natural or legal persons’.^[17] To this end, all member states are required ‘to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right’.^[18] Furthermore, ‘state parties are under a duty themselves not to engage in interferences inconsistent with art 17 of the Covenant and to provide the legislative framework prohibiting such acts by natural or legal persons’.^[19]

74.15 As noted in Chapter 2, the Preamble to the Privacy Act makes clear that the legislation was intended to implement, at least in part, Australia’s obligations relating to privacy under the ICCPR. The Privacy Act, however, is concerned with information privacy only, and therefore is not a full implementation in domestic law of the meaning of art 17. The ACT and Victoria are the only Australian jurisdictions that currently possess a bill of rights.^[20] Section 12 of the Human Rights Act 2004 (ACT) and s 13 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) recognise a right to privacy and reputation, both stating that:

Everyone has the right—