Examples

5.56 Examples of invasion of privacy should provide additional guidance and certainty. The ALRC recommends that brief and general examples of certain types of invasion of privacy be included in the Act.

5.57 For intrusion upon seclusion, the ALRC recommends the Act include the following: ‘such as by physically intruding into the plaintiff’s private space or by watching, listening to or recording the plaintiff’s private activities or private affairs’.

5.58 For misuse of private information, the ALRC recommends the Act include the following: ‘such as by collecting or disclosing private information about the plaintiff’.

5.59 A number of stakeholders in the current Inquiry said a non-exhaustive list of examples should be included in the new provision,^[61] stressing that this would provide courts, parties and business with some guidance and certainty.^[62] Some stakeholders said that the examples should be general and flexible, so that the action could ‘evolve with social and technological developments’.^[63]

5.60 Candice Jansz-Richardson said the examples should be ‘relatively general in nature to ensure their ability to translate over time’.^[64] The Public Interest Advocacy Centre (PIAC) submitted that examples should be ‘open-ended and inclusive, which would build sufficient flexibility into the recommended cause of action for it to be appropriately adapted to changing social and technological circumstances’.^[65] The Australian Privacy Foundation said ‘the list should be clearly identified as non-exclusive and non-exhaustive, ie courts should be able to deal with serious invasions of privacy that fall outside the list’.^[66]

5.61 Other stakeholders said that the cause of action should not include a list of examples.^[67] Some were concerned the list would narrow the scope of the action, by implying that invasions of privacy not covered by an example would not be actionable.^[68] It was also suggested that the examples in the list might become outdated.^[69] Other stakeholders suggested that examples were unhelpful because privacy was ‘contextual and depends on facts and circumstances’.^[70] The ABC said there needs to be ‘an intense focus on how the various interests at stake are implicated in the particular circumstances of each case’.^[71] SBS submitted that ‘the key for any statutory cause of action is flexibility’, warning that:

The more activities or matters that are included to ‘assist’ with the formulation of a breach of privacy action, the more likely it is that these tests will become rigid and inflexible. It is vital that courts consider each case on its facts.^[72]

5.62 Some stakeholders suggested that more specific examples of invasion of privacy might be included in the Act. For example, Electronic Frontiers Australia submitted that there should be examples for data breaches, aggregated collections of data, and ‘posting of photographs, audio-recordings, and video-recordings of personal spaces, activities, and bodies for which consent to post has not been expressly provided by the participant’.^[73] Drs Nicola Henry and Anastasia Powell said examples in the Act should include ‘technology-facilitated sexual violence and harassment’.^[74]

5.63 One Victorian legal service recommends the following examples:

a person’s online accounts such as their email account or social media account has been accessed, interfered with or misused; a person’s private information, including photographs or personal details, have been accessed or disclosed; an individual’s private email correspondence or telephone calls have been monitored or recorded; or an individual’s movements and locations have been monitored and tracked, for example via mobile technology.^[75]

5.64 In its 2008 privacy report, the ALRC also recommended that examples be included in a statute providing for a cause of action for serious invasion of privacy; where

• there has been an interference with an individual’s home or family life;

• an individual has been subjected to unauthorised surveillance;

• an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed; or

• sensitive facts relating to an individual’s private life have been disclosed.^[76]

5.65 The ALRC considers many of the examples provided by stakeholders and in its past report to be good examples of serious invasions of privacy. Some would clearly be covered by the examples recommended above.

5.66 Some examples suggested above are more specific and descriptive. The ALRC considers that the application of the tort to particular circumstances is best left to the courts to consider on a case by case basis. Specific examples may provide additional guidance, but may risk distracting the court from the consideration of the distinct facts and circumstances of a particular case.