12.1 This chapter considers the remedies for an action for serious invasion of privacy. The ALRC recommends that courts be empowered to award any one or more of a range of remedies—monetary and non-monetary—to plaintiffs who successfully bring proceedings under the new privacy tort. One benefit of a cause of action being enacted by statute is the capacity and freedom of parliament to provide for a range of remedies, in contrast to the common law which is constrained by precedent and opportunity.
12.2 Serious invasions of privacy may have diverse consequences for plaintiffs. The range of remedies the ALRC recommends in this chapter are appropriate to the different objectives, experiences and circumstances of plaintiffs who may pursue privacy actions. Some plaintiffs may seek monetary compensation, some may wish the offending behaviour to cease, some will seek to deter similar conduct in the future, while others may seek public vindication of their interests. In some cases, non-monetary remedies may provide a more appropriate response for the often immeasurable effects occasioned by invasions of privacy, or a more effective means to prevent invasions in the future.
12.3 This chapter begins with the ALRC’s recommendation that courts be empowered to award damages, including general damages for any emotional distress suffered by the plaintiff. Most actions for invasion of privacy will concern harm to dignitary interests or emotional distress.
12.4 The ALRC recommends that a separate award of aggravated damages should not be made. Rather, the ALRC recommends that a court be empowered to consider a range of factors that may aggravate or mitigate the assessment of damages.
12.5 The ALRC also recommends that a court should have the discretion to award exemplary damages in exceptional circumstances.
12.6 The ALRC recommends a cap on damages. The cap should apply to the sum of both damages for non-economic loss and any exemplary damages. This cap should not exceed the cap on damages for non-economic loss in defamation.
12.7 The ALRC recommends that a court be empowered to award an account of profits in circumstances where a defendant has profited from an invasion of privacy.
12.8 Finally, the ALRC recommends that courts be empowered to award a range of non-monetary remedies where they would be appropriate in the circumstances: injunctive relief; an order requiring the defendant to apologise; a correction order; an order for the delivery up, destruction or removal of material; and declaratory relief. These remedies are not mutually exclusive, and may be awarded in addition to monetary remedies. It will be at the discretion of a court to award appropriate relief in all the circumstances of a case. A non-monetary order such as injunctive or declaratory relief will not necessarily reduce an award of damages.