Recommendation 12–9 The Act should provide that courts may order the delivery up and destruction or removal of material.
12.147 Orders for the delivery up, destruction or removal of material will be an appropriate remedy for serious invasions of privacy where a defendant has obtained private information about a plaintiff and has exhibited an intention to disclose that information to a third party. This may be appropriate in many contexts involving both print information and online information where two people in an intimate relationship share images or text of a highly personal nature and one party intends to, or does, publish or disclose those images to a third party. In such a case, courts may order that the material be delivered to a court and destroyed or taken off the internet. Several stakeholders supported this recommendation.
12.148 Women’s Legal Services NSW argued that
it is important that power extend to orders to take down online content. It is essential that this order bind third parties such as internet providers and organisations that run social media websites.
12.149 This power should extend to orders for the take down of online content which amounts to a serious invasion of privacy. A court may order that an online provider or an individual who controls their own website (such as a blogger) must remove or take down specific content. An analogous provision exists in the Copyright Act 1968 (Cth), empowering a court to order the delivery up and destruction of material which violates copyright law.
12.150 Australian courts have existing powers to issue similar orders. For instance, Anton Pillar orders are a form of mandatory injunction, issued by a court to prevent the destruction of evidence. Anton Pillar orders are issued when a court considers that a defendant is likely to destroy documents or property necessary for proceedings.
12.151 The NSWLRC and ALRC previously recommended that courts be empowered to make an order for the delivery up and destruction of material. The NSWLRC recommended that courts be empowered to order a defendant to deliver to a plaintiff any ‘articles, documents or material (and any copies), that were made or disclosed as a result of the invasion’.
12.152 Women’s Legal Services NSW also submitted that, in order to facilitate access to justice, local courts should be given the power to grant stand-alone injunctive orders such as take down orders and/or deliver up orders. However, there are jurisdictional difficulties and wider implications with local courts being given these powers.
12.153 The OAIC and PIAC suggested that, in an action under the new tort, courts be able to make an order requiring a defendant to rectify its business or IT practices to redress systemic problems with the way it stores private information. The ALRC has not proposed such an order, because such systemic problems would generally be the result of negligent acts or omissions and be more appropriately dealt with by the regulator. The new tort is confined to intentional or reckless invasions of privacy. Chapter 16 discusses ideas for a wider complaints mechanism for serious invasions of privacy that would allow the Privacy Commissioner to recommend the take down of material.
T Butler, Submission 114; Office of the Victorian Privacy Commissioner, Submission 108; Women’s Legal Service Victoria and Domestic Violence Resource Centre Victoria, Submission 97; Australian Sex Party, Submission 92; S Higgins, Submission 82; Guardian News and Media Limited and Guardian Australia, Submission 80; Public Interest Advocacy Centre, Submission 30; N Witzleb, Submission 29; T Gardner, Submission 3.
Women’s Legal Services NSW, Submission 115.
Copyright Act 1968 (Cth) s 133.
Bernard Cairns, Australian Civil Procedure (Thomson Reuters (Professional) Australia, 8th ed, 2009) [13.80].
Long v Specifor Publications Pty Ltd (1988) 44 NSWLR 545,  (Powell JA).
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) Rec 74–5(f).
NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) NSWLRC Draft Bill, cl 76(1)(d).
Women’s Legal Services NSW, Submission 115.
Office of the Australian Information Commissioner, Submission 66. The OAIC suggested this power would be similar in nature to the OAIC’s power to instigate an own-motion investigation under the Privacy Act 1988 (Cth).