74. Protecting a Right to Personal Privacy
Recommendation 74–1 Federal legislation should provide for a statutory cause of action for a serious invasion of privacy. The Act should contain a non-exhaustive list of the types of invasion that fall within the cause of action. For example, a serious invasion of privacy may occur where:
(a) there has been an interference with an individual’s home or family life;
(b) an individual has been subjected to unauthorised surveillance;
(c) an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed; or
(d) sensitive facts relating to an individual’s private life have been disclosed.
Recommendation 74–2 Federal legislation should provide that, for the purpose of establishing liability under the statutory cause of action for invasion of privacy, a claimant must show that in the circumstances:
(a) there is a reasonable expectation of privacy; and
(b) the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities.
In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court must take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).
Recommendation 74–3 Federal legislation should provide that an action for a serious invasion of privacy:
(a) may only be brought by natural persons;
(b) is actionable without proof of damage; and
(c) is restricted to intentional or reckless acts on the part of the respondent.
Recommendation 74–4 The range of defences to the statutory cause of action for a serious invasion of privacy provided for in federal legislation should be listed exhaustively. The defences should include that the:
(a) act or conduct was incidental to the exercise of a lawful right of defence of person or property;
(b) act or conduct was required or authorised by or under law; or
(c) publication of the information was, under the law of defamation, privileged.
Recommendation 74–5 To address a serious invasion of privacy, the court should be empowered to choose the remedy that is most appropriate in the circumstances, free from the jurisdictional constraints that may apply to that remedy in the general law. For example, the court should be empowered to grant any one or more of the following:
(a) damages, including aggravated damages, but not exemplary damages;
(b) an account of profits;
(c) an injunction;
(d) an order requiring the respondent to apologise to the claimant;
(e) a correction order;
(f) an order for the delivery up and destruction of material; and
(g) a declaration.
Recommendation 74–6 Federal legislation should provide that any action at common law for invasion of a person’s privacy should be abolished on enactment of these provisions.
Recommendation 74–7 The Office of the Privacy Commissioner should provide information to the public concerning the recommended statutory cause of action for a serious invasion of privacy.