Cause of action limited to natural persons

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.[31] This means that corporations, government agencies or other organisations[32] would not have standing to sue for invasions of privacy. This recommendation was unanimously supported by previous law reform inquiries.[33]

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’.[34]

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.[35]

10.44 Similarly, PIAC argued that ‘it would be incongruous to assign this interest to a corporation or other body’.[36]

10.45 Actions in defamation, which are analogous to privacy actions, are also, generally speaking, limited to living, natural persons.[37] Similarly, only individuals may bring a complaint under the Privacy Act.[38]