13.1 In addition to the detailed legal design of a statutory cause of action for serious invasion of privacy, the Terms of Reference require the ALRC to make recommendations as to other legal remedies to redress serious invasions of privacy and as to innovative ways in which the law may reduce serious invasions of privacy.
13.2 In the event that the statutory cause of action is not enacted, the ALRC recommends that courts be empowered by legislation to award compensation for emotional distress in cases involving disclosure of private information.
13.3 The recommendation aims, first, to address existing uncertainty as to whether Australian law provides a remedy for emotional distress suffered as a result of the disclosure or misuse of private information, and secondly, to ensure that the law does provide such a remedy.
13.4 This would be a limited and targeted way in which the law could be amended to provide greater redress for serious invasions of privacy and to fill a significant gap in the existing law.
13.5 This chapter begins with a brief section on the likely future development of the breach of confidence action. It then sets out the case for the recommendation. It concludes with an explanation of why the ALRC does not proceed with a proposal made in the Discussion Paper which related to public interest considerations in applications for injunctions to restrain the publication of private information.
With regard to intrusion into seclusion, the other type of invasion included in the statutory tort, the ALRC considers that if a statutory cause of action for serious invasion of privacy is not enacted, a statutory action for protection against harassment would be a more targeted or limited way for the law to be developed: this is discussed in Ch 15. Ch 3 considers the possibility of the common law developing a tort of harassment or a tort of invasion of privacy by intrusion into seclusion. It would be necessary for the courts to identify its elements, including whether it: was actionable per se, by analogy with trespass to the person; required damage in the usual sense of psychiatric or physical illness; or required damage but included emotional distress.
This recommendation would not, therefore, apply to cases involving commercial information or the like. In this chapter, the ALRC intends ‘private’ information to mean information as to which a person in the position of the plaintiff has a reasonable expectation of privacy in all of the circumstances.