Other defamation defences
11.132 The ALRC considers that some defences to defamation are inappropriate or unnecessary for a privacy action, due to the differences in the nature, rationale and elements of the two causes of action.
11.133 Truth. The defence of truth or justification is not relevant to a privacy tort. Most cases involving invasions of privacy by disclosure of information are brought to prevent or seek redress for disclosure of true information.
11.134 Fair comment. A defence of fair comment is inappropriate for a privacy tort. The right to speak freely, that is protected by the defence of fair comment in defamation law, both under common law and the UDL, is limited to comment or opinions on matters of public interest. In the new tort, public interest will already have been considered as part of actionability, so that a defence is unnecessary. Further, the relevant wrong in the invasion of privacy tort is the disclosure of private information. Outside matters of public interest, a person should not be able to disclose private information about another under the guise of making a comment or opinion.
11.135 Qualified privilege. The ALRC has decided not to recommend a defence akin to that of qualified privilege in defamation law. Qualified privilege at common law protects defamatory statements where they are made without malice on an occasion of qualified privilege, that is, where a person has a legal, social or moral duty or interest in making the statement to someone with a reciprocal duty or interest in receiving it. The defence is lost if the defendant was actuated by an improper motive. The common law defence very rarely benefited the media, who had instead to rely on extended statutory or constitutional forms of the defence. Although a defence similar to qualified privilege at common law was discussed and proposed in the Discussion Paper, and some stakeholders supported it, other expert commentators and legal practitioners, in consultations with the ALRC, questioned the need for or desirability of such a defence, given the elements of the cause of action and other defences.
11.136 A number of considerations underpin the ALRC’s decision not to recommend a defence of qualified privilege. First, the new tort would apply only to intentional or reckless invasions of privacy, so there is a need for compelling reasons to justify the invading conduct. Defamation, by contrast, is a tort of strict liability, therefore necessitating a greater range of defences for conduct in good faith to alleviate the potential harshness of the liability.
11.137 Secondly, commentators also pointed to the fact that complex questions arise as to the elements and operation of qualified privilege in defamation law. If there were a need for a similar defence to the common law defence, it would be undesirable to burden the new tort with that complexity and risk extended legal argument about how common law principles relevant to the defamation defence applied to the new tort. An entirely new defence would need to be drafted to deal with the situations intended to be protected.
11.138 Thirdly, a plaintiff would arguably not satisfy the actionability requirements for bringing an action in any of the circumstances that would attract the defence. Where a defendant acted in circumstances commonly included within occasions of qualified privilege at common law, the plaintiff would not usually have a reasonable expectation of privacy in relation to the information. Alternatively, any invasion of privacy would arguably be outweighed by public interest considerations relating to the circumstances. Lastly, the defences of necessity or defence of persons or property may excuse the defendant. If not, an intentional and reckless invasion of privacy should be actionable.
11.139 Innocent dissemination. The defence of innocent dissemination is inappropriate, as the statutory cause of action is limited to intentional acts. While several stakeholders supported the inclusion of a defence of innocent dissemination, this may have been on the basis that the fault elements of the action were not confirmed at that time.
11.140 Innocent dissemination is a defence to defamation in which liability is strict. A defendant has the defence if they published the defamatory material merely in the capacity of a ‘subordinate distributor’, and neither knew, nor ought reasonably to have known, that the matter was defamatory. The defence of innocent dissemination may be considered a type of safe harbour.
11.141 Triviality. The defence of triviality is unnecessary as the statutory cause of action is confined to serious invasions of privacy.
11.142 Information in the public domain. The ALRC considers that a complete defence of ‘information in the public domain’—or the application of the doctrine of waiver—would be inappropriate, as the effect of a prior disclosure of an individual’s (prima facie) private information is variable.
11.143 Private information does not necessarily lose its quality of privacy once it has been disclosed. PIAC argued that information may still be private in nature, despite the fact that it has been published.
11.144 Several stakeholders supported the inclusion of a defence that the information disclosed by the defendant was already in the public domain.
11.145 However the ALRC recommends that, whether and to what extent information is in the public domain at the relevant time, as well the plaintiff’s prior conduct in having a role in the earlier disclosure, will be a relevant factor to be considered by a court when determining whether a plaintiff had a reasonable expectation of privacy. This factor is discussed more fully in Chapter 6.
11.146 In making this recommendation, the ALRC recognises that there may be some circumstances where the previous widespread dissemination of an individual’s private information may diminish their reasonable expectation of privacy, even if the facts do not support implied consent to that publication. On the other hand, the fact that private information was once publicly or broadly known may not justify the defendant’s revealing it at a later time. These matters are best considered by the court when determining whether the plaintiff has a cause of action.
11.147 Public interest. A defence of public interest would be redundant because the ALRC recommends in Chapter 9 that a plaintiff only has a cause of action for serious invasion of privacy where a court is satisfied that the plaintiff’s interest in privacy outweighs any countervailing public interest. A separate public interest defence would therefore not be needed.
11.148 The ALRC considers that a balancing exercise is a more appropriate way to determine whether there is a public interest in the disclosure of the private information or the intrusion into an individual’s seclusion. Expressly incorporating public interest into the actionability of a statutory cause of action will ensure that privacy interests are not unduly privileged over other rights and interests, particularly given that Australia does not have express human rights law protection for freedom of speech. The balancing of public interests is discussed more fully in Chapter 9.
11.149 A defence of contributory negligence is not appropriate for the new tort, which is limited to intentional or reckless conduct. This approach is consistent with the law relating to other intentional torts, such as conversion, battery and assault.
11.150 Opening the new privacy tort up to defendant claims of contributory negligence would confuse the fault element of the tort by introducing consideration of negligent conduct. Contributory negligence now acts as a partial defence only to claims in negligence, and statute authorises the reduction of damages where the plaintiff’s own negligence was a material factor in the loss or harm suffered.
11.151 The ALRC considers that, where a defendant intentionally or recklessly and unjustifiably invades another person’s privacy, and cannot rely on one of the available defences, such conduct should not be excused or mitigated by mere carelessness on the part of the plaintiff. The plaintiff’s conduct may be a consideration when the court is deciding whether the plaintiff had a reasonable expectation of privacy.
Other defences and exemptions
11.152 The ALRC considers that, other than in the case of young people, no activity, individual or organisation should be exempt from liability under the new tort. A number of stakeholders agreed, arguing that defences would be sufficient to protect serious invasions of privacy which are nonetheless warranted.
11.153 Other stakeholders raised a number of other possible exemptions or defences to the new tort. However, the ALRC considers that many of these are appropriately captured by the recommended defences, such as lawful authority or necessity, or by the elements of the tort, including the requirement of a reasonable expectation of privacy and the public interest balancing process.
11.155 SBS suggested an exemption for journalists and media organisations, provided the serious invasion of privacy occurs while they are engaged in journalism. This would operate in a similar fashion to the journalism exemption in the Privacy Act. However, the fault requirement and the public interest balancing process already provide significant protection for the media.
11.156 The Australian Bankers’ Association argued that compliance with the Privacy Act should be a complete exemption to a statutory cause of action for serious invasion of privacy. This may have been more appropriate if the statutory cause of action could rest on negligence, where whether or not an entity had failed to follow proper practice would be relevant. However, a plaintiff would be unlikely to make out the elements of the tort where an entity’s conduct complied with the requirements of the Privacy Act.
11.157 The Arts Law Centre of Australia (supported by NAVA and the Australian Institute of Professional Photography) favoured the following exemptions: photography or filming in a public place; documentary film-making or photography; journalistic or investigative photography, film-making or reporting; photography or filming of privately owned land or premises, or people on those premises, where the premises are accessible to the public; and photography or filming of people on private premises for purposes such as education, journalism, artistic expression and documentary. However, the reasonable expectation of privacy, the limited fault element and the public interest balancing test for actionability should provide significant protection for photographers in the range of situations for which exemptions are sought.
11.158 Voiceless and the Barristers’ Animal Welfare Panel Ltd submitted that there should be a defence for activities carried out ‘for the purpose of, or resulted in, the procuring of evidence of an iniquity’. The ALRC considers that such a defence would be extremely wide, could extensively curtail and infringe civil liberties in a wide range of circumstances and would undermine the protection that the tort is designed to provide from invasive conduct exceeding lawful authority. The balancing test and the defences of lawful authority, necessity and for conduct incidental to the exercise of a lawful right of defence of persons or property, recommended above, more appropriately balance competing interests.
See, for example, Defamation Act 2005 (NSW) 2005 s 25.
Privacy Act, RSBC 1996, c 373 s 2 includes the defence of fair comment.
N Witzleb, Submission 29. The VLRC recommended a defence of fair comment but such a defence was not recommended by the ALRC previously or by the NSWLRC. NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) [6.8]; Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010) rec 27(e).
As set out in Discussion Paper 80 at [10.40]—[10.52], there are three categories of qualified privilege in defamation: qualified privilege at common law, qualified privilege under the UDL (see, eg, s 30 in the Defamation Act 2005 (NSW)) and the Lange qualified privilege encompassing implied freedom of political communication.
Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Discussion Paper 80 (2014).
Office of the Victorian Privacy Commissioner, Submission 108; Public Interest Advocacy Centre, Submission 105; Telecommunications Industry Ombudsman, Submission 103; ASTRA, Submission 99; UNSW Cyberspace Law and Policy Community, Submission 98; Australian Sex Party, Submission 92; J Chard, Submission 88; S Higgins, Submission 82; I Turnbull, Submission 81; Guardian News and Media Limited and Guardian Australia, Submission 80; Telstra, Submission 45; N Witzleb, Submission 29.
Office of the Information Commissioner Queensland, Submission 127; Public Interest Advocacy Centre, Submission 105; UNSW Cyberspace Law and Policy Community, Submission 98; Australian Privacy Foundation, Submission 39; T Gardner, Submission 3. The ALRC considers that the requirement for the plaintiff to have a reasonable expectation of privacy, the fault element of intentional or reckless conduct, the public interest balancing process as part of actionability and the defence of reasonable defence of persons, others or property will provide overall sufficient protection to conduct that would fall within a defence of qualified privilege.
Witzleb notes that: ‘The privilege has the purpose of protecting and facilitating frank and fearless communication even if it is damaging to reputations because it is considered in the public interest to do so. This same reasoning can also be applied to the protection of privacy. It is therefore appropriate to create privileges for communications in which this rationale applies’: N Witzleb, Submission 29.
Some stakeholders supported the inclusion of a defence of innocent dissemination, eg, Office of the Australian Information Commissioner, Submission 66; SBS, Submission 59. However the necessity of the defence flows from the fault element of the cause of action.
See, eg, Defamation Act 2005 (NSW) 2005 s 32.
Leonard, above n 125, 235.
SBS, above n 21 supported the availability of the defence of triviality.
Warby et al, above n 63, 539–542.
Public Interest Advocacy Centre, Submission 30.
SBS, Submission 59; ABC, Submission 46; D Butler, Submission 10; T Gardner, Submission 3.
See the discussion of the defence of consent above.
This is also the case in breach of confidence actions where information must have the quality of confidence to be protected in equity. This may be lost if the information becomes known to a substantial number of people. Contractual obligations of confidence may endure even where the information has been publicly revealed. See, further, Aplin et al, above n 64, ch 5.
Several stakeholders supported this model: Office of the Australian Information Commissioner, Submission 66; Google, Submission 54; ASTRA, Submission 47; ABC, Submission 46; Telstra, Submission 45; Arts Law Centre of Australia, Submission 43.
Cf New South Wales v Riley (2003) 57 NSWLR 496, .
See, eg, Law Reform (Miscellaneous Provisions) Act 1965 (NSW).
Office of the Australian Information Commissioner, Submission 66; NSW Young Lawyers, Submission 58; Queensland Council of Civil Liberties, Submission 51; ABC, Submission 46; Australian Privacy Foundation, Submission 39; N Witzleb, Submission 29; Law Institute of Victoria, Submission 22.
Telstra, Submission 45.
Australian Bureau of Statistics, Submission 32.
SBS, Submission 59.
Australian Bankers’ Association, Submission 27.
Arts Law Centre of Australia, Submission 43.
Barristers’ Animal Welfare Panel and Voiceless, Submission 64.