Recommendation 10–2 The new tort should only be actionable by natural persons.
10.41 The ALRC recommends that the statutory cause of action for serious invasion of privacy be limited to natural persons. This means that corporations, government agencies or other organisations would not have standing to sue for invasions of privacy. This recommendation was unanimously supported by previous law reform inquiries.
Privacy action remedies a personal interest
10.42 An action in privacy is designed to remedy a personal, dignitary interest. It would be incongruous, therefore, to assign this interest to a corporation or other body. In Australian Broadcasting Corporation v Lenah Game Meats, Gummow and Hayne JJ held that any common law tort of unjustified invasion of privacy (were one to develop in Australian law), should be confined to natural persons as corporations lack the ‘sensibilities, offence and injury … which provide a staple value for any developing law of privacy’.
10.43 In support of this argument, Guardian News and Media Limited and Guardian Australia argued that
Privacy is fundamentally an interest limited to natural persons. The parallel right for corporations and other non-natural entities is confidential information which is already sufficiently protected.
10.44 Similarly, PIAC argued that ‘it would be incongruous to assign this interest to a corporation or other body’.
10.45 Actions in defamation, which are analogous to privacy actions, are also, generally speaking, limited to living, natural persons. Similarly, only individuals may bring a complaint under the Privacy Act.
Several stakeholders supported this recommendation: T Butler, Submission 114; Office of the Victorian Privacy Commissioner, Submission 108; Telstra, Submission 107; Public Interest Advocacy Centre, Submission 105; ASTRA, Submission 99; Australian Sex Party, Submission 92; Google, Submission 91; Australian Bankers’ Association, Submission 84; S Higgins, Submission 82; Guardian News and Media Limited and Guardian Australia, Submission 80; Barristers’ Animal Welfare Panel and Voiceless, Submission 64.
Including elected bodies: Ballina Shire Council v Ringland (1994) 33 NSWLR 680.
Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010) Rec 32; Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) Rec 74–3(a); NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) NSWLRC Draft Bill, cl 74(1).
Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, .
Guardian News and Media Limited and Guardian Australia, Submission 80.
Public Interest Advocacy Centre, Submission 105.
See, eg, Defamation Act 2005 (SA) 2005 s 9. Some small businesses (which employ fewer than 10 employees), and not for profit organisations have standing under the Act to sue for defamation.
Privacy Act 1988 (Cth) s 36(1).