5.67 The cause of action in this Report is not designed to capture the two other so- called ‘privacy torts’ in the United States, namely, ‘publicity which places the plaintiff in a false light in the public eye’ and ‘appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness’.
5.68 Discussing the four US torts, the Australian High Court has said that, in Australia, one or more of the four types of invasion of privacy would often ‘be actionable at general law under recognised causes of action’:
Injurious falsehood, defamation (particularly in those jurisdictions where, by statute, truth of itself is not a complete defence), confidential information and trade secrets (in particular, as extended to information respecting the personal affairs and private life of the plaintiff, and the activities of eavesdroppers and the like), passing-off (as extended to include false representations of sponsorship or endorsement), the tort of conspiracy, the intentional infliction of harm to the individual based in Wilkinson v Downton and what may be a developing tort of harassment, and the action on the case for nuisance constituted by watching or besetting the plaintiff’s premises, come to mind.
5.69 The disclosure of private facts and unreasonable intrusion upon seclusion concern the key privacy interests, such as personal dignity and autonomy, whereas the other US torts arguably protect other interests. Gummow and Hayne JJ stated in ABC v Lenah Game Meats:
Whilst objection possibly may be taken on non-commercial grounds to the appropriation of the plaintiff’s name or likeness, the plaintiff’s complaint is likely to be that the defendant has taken the steps complained of for a commercial gain, thereby depriving the plaintiff of the opportunity of commercial exploitation of that name or likeness for the benefit of the plaintiff. To place the plaintiff in a false light may be objectionable because it lowers the reputation of the plaintiff or causes financial loss or both.
5.70 The tort of passing off does not provide full protection of people’s image rights, but the ALRC considers that reform to the law relating to image rights would need to be considered more broadly and in the context of Australia’s intellectual property law.
5.71 Wacks has written that the ‘false light’ category ‘seems to be both redundant (for almost all such cases might equally have been brought for defamation) and only tenuously related to the protection of the plaintiff against aspects of his or her private life being exposed’. Prosser himself wrote that the ‘false light cases obviously differ from those of intrusion, or disclosure of private facts’:
The interest protected is clearly that of reputation, with the same overtones of mental distress as in defamation.
5.72 In the US, Prosser’s formulation of appropriation as a privacy tort is contentious and often described as a ‘right of publicity’. The Supreme Court of Colorado has noted that Prosser’s formulation of the tort
subsumed the two types of injuries—personal and commercial—into one cause of action that existed under the misleading label of ‘privacy’. The privacy label is misleading both because the interest protected (name and/or likeness) is not ‘private’ in the same way as the interests protected by other areas of privacy law and because the appropriation tort often applies to protect well-known ‘public’ persons.
5.73 It should be noted that putting someone in a false light or appropriating their name or likeness may, in some cases, also be a serious invasion of a person’s privacy under the tort designed in this Report. For example, the Domestic Violence Legal Service and the North Australian Aboriginal Justice Agency noted the ‘common scenario in domestic violence cases where the perpetrator hacks into the victim’s existing social media account or creates a false social media account in the name and or image of the victim and then posts material purporting to be authored by the victim’. The ALRC considers that, depending on the circumstances, this may be both an intrusion into seclusion (hacking into a person’s social media account) and a misuse of private information (posting private photos). The tort in this Report is certainly not designed to deny relief where the plaintiff has been put in a false light, or had their name or likeness appropriated. But it is not intended to capture these other wrongs per se. Other causes of action will more directly relate to these wrongs.
Prosser, above n 7, 392.
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 255 (Gummow and Hayne JJ).
Ibid, 256 (Gummow and Hayne JJ).
To have an action under the tort of passing off, the plaintiff or the plaintiff’s business must have ‘a certain goodwill or reputation’ and must suffer ‘injury in his trade or business’: Fletcher Challenge Ltd v Fletcher Challenge Pty Ltd (1981) 1 NSWLR 196, .
Wacks, above n 22, 181.
Prosser, above n 7, 400.
Joe Dickerson & Associates, LLC v Dittmar 34 P3d 995 (Supreme Court of Colorado, 2001, Bender J).
Domestic Violence Legal Service and North Australian Aboriginal Justice Agency, Submission 120.