10.1 This chapter considers a number of details in the legal design of the statutory cause of action for serious invasion of privacy, including the appropriate forums to hear the cause of action, costs orders, and limitation periods.
10.2 The ALRC recommends that federal, state and territory courts should have jurisdiction to hear an action for serious invasion of privacy.
10.3 There may often be alternatives to bringing an action under the new tort, such as making a complaint to the Office of the Australian Information Commissioner (OAIC). Failing to pursue such alternative dispute resolution processes should not bar a plaintiff from bringing an action under the new tort. However, the ALRC recommends that the Act provide that, in determining any remedy, courts may take into account whether or not a party took reasonable steps to resolve the dispute without litigation and the outcome of any alternative dispute resolution (ADR) process.
10.4 The chapter then discusses who should have standing to sue for a serious invasion of privacy. The ALRC recommends that the plaintiff must be a natural person, rather than a company or other organisation. The ALRC also recommends that the new tort should not survive in favour of a plaintiff’s estate or against a defendant’s estate. These recommendations reflect the fact that privacy is a matter of personal sensibility.
10.5 The ALRC recommends a limitation period of either one year from the date on which the plaintiff became aware of the invasion of privacy or three years from the date on which the invasion of privacy occurred, whichever occurs first. In exceptional circumstances, the court may extend this limitation period, but the period should expire no later than six years from the date on which the invasion occurred. The ALRC also recommends that consideration be given to extending the limitation period where the plaintiff was under 18 years of age when the invasion of privacy occurred.
10.6 The ALRC recommends that consideration should be given to enacting a ‘first publication rule’, also known as a ‘single publication rule’. This would limit the circumstances in which a person may bring an action in relation to the publication of private information, when that same private information had already been published in the past.