3.50 Although the existing law provides protection against some invasions of privacy, there are significant gaps or uncertainties. These include the following:
The tort actions of trespass to the person, trespass to land and nuisance do not provide protection from unauthorised and serious intrusions into a person’s private activities in many situations. A statutory cause of action for serious invasions of privacy, or a statutory tort for harassment, would supplement the common law.
Outside actions of trespass, malicious prosecution or defamation, tort law does not provide a remedy for intentional infliction of emotional distress which does not amount to psychiatric illness. The ALRC recommends that a tort for serious invasions of privacy should be actionable per se, therefore allowing for the recovery of damages for emotional distress.
While the equitable action for breach of confidence can provide effective legal protection to prevent the disclosure of private information (and especially if the Australian common law develops as it has in the UK), it is currently less effective after a wrongful disclosure, because it is unclear or uncertain whether a plaintiff may recover compensation for emotional distress. This uncertainty should be removed.
There is further uncertainty, or at least some debate, as to the relevant principles to be applied when a court is considering whether to grant an interlocutory injunction to restrain the publication of true, private information. The Discussion Paper included a proposal that courts be required to give particular consideration to freedom of expression and matters of public interest when considering such an injunction on the basis of common law actions. The ALRC considers that it may be premature to proceed with this proposal unless and until there is further development of the common law.
Legislation dealing with surveillance and with workplace surveillance is not uniform throughout Australia, and is outdated in some states. The ALRC recommends that these surveillance device laws should be made replaced by a Commonwealth Act.
There is no tort or civil action for harassment, nor is there sufficient deterrence against ‘cyber-harassment’ in Australian law, compared with overseas jurisdictions. The ALRC recommends civil remedies and criminal penalties for harassment if a statutory cause of action for serious invasion of privacy is not enacted.
Legislation and common law protection against aerial and other surveillance may not provide sufficient protection against advances in technology that facilitate new types of invasion into personal privacy. This limitation would be addressed by the statutory cause of action for serious invasions of privacy. In addition, ALRC recommendations for the replacement of state and territory surveillance devices laws would technology-neutral legislation would allow for the regulation of new means of surveillance.
The Privacy Act and state and territory equivalents deal only with information privacy. Further, the Privacy Act provides for only limited civil redress, that is, by way of complaints made to the Australian Information Commissioner. While of central importance, this legislation by no means covers the field of invasions of privacy. The Act does not generally apply to intrusions into personal privacy or to the behaviour of individuals or media entities, and does not generally apply to businesses with an annual turnover of less than $3 million.
There is no regulatory avenue for monetary redress for complaints about invasions of privacy by media or communications entities.
3.51 Some of the gaps identified above are more properly dealt with by existing regulatory bodies. Some concerns have been the subject of recent, carefully considered enactments—for example, the recent amendments to the Privacy Act made by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth), many of which came into effect only in March 2014, three months before the completion of this Inquiry.
3.52 Further, in many instances a targeted review of existing legislation which is the subject of community debate is more appropriate. For example, the privacy protections under the Telecommunications Act and the TIA Act were the subject of a 2013 Parliamentary Inquiry. At the time of writing, a further Parliamentary Inquiry is ongoing. The ALRC therefore does not consider these provisions in this Report.
Trespass to the person requires bodily contact or a threat of such contact. Both trespass to land and nuisance protect only the occupier of the relevant land, and the former requires an intrusion onto the land.
See Chs 4–12.
See Ch 15.
Wainwright v Home Office  2 AC 406; Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 417.
See Ch 8.
See Ch 13.
The guidance provided by defamation cases such as Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 and by cases on protection of confidential information is of uncertain application in view of the potentially different interests in privacy actions.
Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Discussion Paper 80 (2014) Prop 12–2.
See Ch 13.
See Ch 14.
A number of US states have enacted cyber-stalking or cyber-harassment legislation or have laws that explicitly include electronic forms of communication within more traditional stalking or harassment laws. Most of these constitute amendments to State Criminal Codes, updating the meaning of harassment and/or stalking to include electronic communications. In Nova Scotia in Canada, the Cyber-Safety Act 2013 (SNS), c 2 criminalises cyber-bullying.
See Ch 15 and in particular Rec 15–1.
An example is the increasing use of unmanned aerial vehicles (drones) to carry out unauthorised aerial surveillance.
See Ch 14.
A proposal to extend the Commissioner’s powers to investigate complaints about serious invasions of privacy is considered in Ch 16. This extension would make use of the Commissioner’s existing powers, including powers to make non-binding declarations. This power could also allow the Commissioner to investigate complaints about serious invasions of privacy by the media.
The small business exemption in the Privacy Act is discussed in Ch 16.
See above on the Australian Press Council. The ALRC has not proceeded with a proposal for the ACMA to be given equivalent, limited powers to the OAIC to redress complaints of serious unjustified invasions of privacy.
Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation (2013).
Legal and Constitutional Affairs References Committee, Comprehensive Revision of Telecommunications (Interception and Access) Act 1979 (referred by Senate on 12 December 2013; reporting date 27 August 2014).