NSWLRC Consultation Paper on invasion of privacy

74.70 As noted above, the NSWLRC has released a consultation paper that discusses whether a statutory cause of action for invasion of privacy should be introduced in that state. The NSWLRC reached the preliminary view that persons should be protected in a broad range of contexts from unwanted intrusions into their private lives or affairs.[108] A statutory model to ensure such protection was put forward for consultation.[109]

74.71 After an extensive review of developments in Australia and overseas, the NSWLRC considered four possible statutory models:

1 One general, non-specific right to seek redress for invasion of personal privacy.

2 A general cause of action for invasion of privacy, supplemented by a non-exhaustive list of the circumstances that could give rise to the cause of action.

3 A general cause of action for invasion of privacy, together with other specific statutory causes of action, for example, in respect of unauthorised surveillance activity.

4 Several narrower and separate causes of action based on various distinct heads of privacy.[110]

74.72 The second option, which was the one favoured by the NSWLRC, was modelled on the existing law in the Canadian provinces of British Columbia, Saskatchewan, Manitoba, Newfoundland and Labrador.[111] This also was the model upon which the Irish Privacy Bill was based.[112] Unlike the Canadian and Irish models, which frame the cause of action in tort, the NSWLRC suggested that the cause of action should be expressed in terms of a right of action for invasion of privacy, rather than as a tort of violation of privacy.

74.73 The NSWLRC suggested the following wording for a statutory cause of action:

A person would be liable under the Act for invading the privacy of another, if he or she:

(a) interferes with that person’s home or family life;

(b) subjects that person to unauthorised surveillance;

(c) interferes with, misuses or discloses that person’s correspondence or private written, oral or electronic communication;

(d) unlawfully attacks that person’s honour and reputation;

(e) places that individual in a false light;

(f) discloses irrelevant embarrassing facts relating to that person’s private life;

(g) uses that person’s name, identity, likeness or voice without authority or consent.

This list should be interpreted as illustrative and not exhaustive.[113]

74.74 Having suggested that a general cause of action for invasion of privacy could be provided for by statute, the NSWLRC went on to discuss the essential elements of the cause of action. The defences to such a cause of action are also discussed. On these issues, the NSWLRC called for submissions and refrained from making any proposals.[114]

74.75 In the final chapter, the NSWLRC explored a range of common law, equitable and statutory remedies that could be available to a person who has had his or her privacy unlawfully invaded. The NSWLRC proposed that:

The statute should provide that where the court finds that there has been an invasion of the plaintiff’s privacy, the Court may, in its discretion, grant any one or more of the following:

  • damages, including aggravated damages, but not exemplary damages;

  • an account of profits;

  • an injunction;

  • an order requiring the defendant to apologise to the plaintiff;

  • a correction order;

  • an order for the delivery up and destruction of material;

  • a declaration;

  • other remedies or orders that the Court thinks appropriate in the circumstances.[115]

74.76 The ALRC understands that the NSWLRC intends to have its final report completed in mid-2008, after further consultations.

[108] New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper 1 (2007), [1.20].

[109] Ibid, proposal 1.

[110] Ibid, [6.2].

[111]Privacy Act 1996 RSBC c 373 (British Columbia); Privacy Act 1978 RSS c P–24 (Saskatchewan); Privacy Act CCSM s P125 (Manitoba); Privacy Act 1990 RSNL c P–22 (Newfoundland and Labrador).

[112] Privacy Bill 2006 (Ireland).

[113] New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper 1 (2007), [6.32].

[114] Ibid, [7.60].

[115] Ibid, proposal 2.