Summary

11.1 The ALRC recommends a number of defences that would limit a plaintiff’s right to succeed under the new tort. The defences reflect the need to protect, and in some cases privilege, important countervailing interests above a plaintiff’s expectation of privacy. Defendants will bear the onus of proving that their conduct is subject to a defence or exemption. The recommended defences are:

• lawful authority to protect defendants from liability under the new privacy tort where their conduct was required or authorised by law;

• conduct incidental to the exercise of a lawful right of defence of persons or property, where that conduct was proportionate, necessary and reasonable, and where the defendant reasonably believed that the conduct was necessary to protect persons or property;

• necessity where a defendant acts in a reasonable belief that they were preventing an imminent and greater harm; and

• consent including express and implied consent.

11.2 The ALRC also recommends a number of defences which are the same as, or analogous to, defamation defences: absolute privilege; publication of public documents; and fair and accurate reporting of public proceedings.

11.3 This chapter discusses several matters that will not give rise to a defence because defences would be superfluous in view of the elements of the tort or actionability. Because the balancing test for actionability already protects public interest, a defence of public interest is unnecessary. There is also no need for a defence that the material was already in the public domain, because this issue will be considered when deciding at the outset whether the plaintiff has a reasonable expectation of privacy at the relevant time.

11.4 Contributory negligence will not be a defence to an intentional or reckless invasion of privacy.

11.5 The ALRC considers that a number of defences to defamation are inappropriate for an action for intentional or reckless invasion of privacy. These include the defences of qualified privilege, truth, innocent dissemination and comment.

11.6 This chapter includes a recommendation for a safe harbour scheme for internet intermediaries to exempt internet hosts and platform providers from liability provided they meet certain conditions.