No recommendation on notional licence fee

12.112 In the Discussion Paper, the ALRC proposed the availability of damages based on the calculation of a notional licence fee. After further consideration and discussion with relevant stakeholders, the ALRC has decided not to make a recommendation that a court may award damages based on a notional licence fee. The ALRC considers that an assessment of damages based on a notional licence fee is primarily aimed at protecting commercial rights rather than personal, dignitary interests such as privacy. As a result, it makes no recommendation that it be available as a remedy for the new tort. Nonetheless, the ALRC considers that it would be a matter for the courts to decide whether this remedy is appropriate in any particular case.

12.113 Damages assessed on the basis of a notional licence fee would require the defendant to pay to the plaintiff any sum that the plaintiff would have received if the defendant had asked prior permission to carry out the activity that invaded the plaintiff’s privacy. This remedy seeks to target the value to the defendant of deliberately invading the plaintiff’s privacy.

12.114 Damages assessed on the basis of notional licence fees have been considered by courts in the UK in actions for breach of confidence and breach of contract. In Irvine v Talksport,[131] a radio station used the image of a well-known racing driver in its publicity material, without the driver’s knowledge or agreement. The Court granted the driver damages equal to the driver’s minimum endorsement fee at the time the image was used. In Douglas v Hello!(No 3),the Court of Appeal of England and Wales recognised that an award based on a notional licence fee was available in situations where a plaintiff had permitted the invasive act in question (in this case, publication of wedding photographs) but had not been compensated for it.[132]

12.115 There is debate about the applicability of gains-based relief for an invasion of privacy. Dr Sirko Harder has argued that gain-based remedies are appropriate to remedy invasions of privacy, given that

the right to privacy constitutes a right to exclude others from one’s private sphere and thus an exclusive entitlement against the whole world … Gain-based relief is the natural consequence of the unauthorised use of an exclusive entitlement.[133]

12.116 ASTRA submitted that this remedy was not appropriate for an invasion of privacy, arguing that,

if an individual is willing to grant a licence for an invasion of privacy (especially when subject to payment of a fee), this should not be actionable under the proposed tort.[134]

12.117 Australian law does not recognise a right of publicity. However, the misappropriation and unauthorised commercial use of an individual’s image is protected by the tort of passing off, where that individual has a trading reputation,[135] and other aspects of intellectual property law. The tort of passing off aims to prevent economic loss by redressing misrepresentation which occurs when one party ‘passes off’ their goods or services as the goods or services of another party.[136] Remedying the commercial consequences of unauthorised publication of private information may be better pursued through the development of the tort of passing off, if available, than through a notional licence fee.