Intrusion upon seclusion

5.17 Intrusion upon seclusion is one of the two most commonly recognised categories of invasion of privacy. It is essential that the new tort for serious invasions of privacy capture this type of conduct.

5.18 Intrusions upon seclusion usually refer to intrusions into a person’s physical private space. Watching, listening to and recording another person’s private activities are the clearest and most common examples of intrusion upon seclusion. They are the types of activities the ALRC intends should be captured by this limb of the tort. To make this clear, the ALRC recommends that these types of intrusion be specifically included in the Act, as examples of intrusion upon seclusion. The examples are intended to clarify, but not limit, the meaning of ‘intrusion upon seclusion’.

5.19 Intrusion upon seclusion aligns with Moreham’s second overarching category of invasion of privacy. Moreham writes:

Peering through a person’s bedroom window, following her around, bugging her home or telephone calls, or surreptitiously taking for one’s own purposes an intimate photograph or video recording are all examples of this kind of intrusion.[13]

5.20 Although watching and listening to private activity may be an invasion of privacy, it might often not be serious. Recording a private activity is clearly less justifiable, and more likely to be a serious invasion of privacy. This is partly because the recording may later be distributed, although this may be considered a separate wrong. If the recording is not distributed, or shown to anyone else, it may nevertheless be watched or listened to later by the person who made the recording.

5.21 It is important not to look at these elements in isolation. To have an action, the plaintiff must also have a reasonable expectation of privacy, the intrusion must have been both intentional or reckless and serious, and the intrusion must not be in the public interest.

5.22 In many cases there is no legal redress in Australia for intrusions upon seclusion, because of the limitations of other tort actions.[14] The tort of intrusion upon seclusion, Prosser wrote in 1960 concerning US law, ‘has been useful chiefly to fill in the gaps left by trespass, nuisance, the intentional infliction of mental distress, and whatever remedies there may be for the invasion of constitutional rights’.[15] These gaps in privacy protection remain in Australia today. The Office of the Victorian Privacy Commissioner submitted that a large number of individuals contact its office seeking redress for interferences with spatial or physical privacy, ‘for which there is currently no readily accessible remedy in Australian law’:

Increasingly, people are becoming concerned about intrusions into their spatial privacy, particularly given the rise in surveillance technologies. The Privacy Commission receives hundreds of complaints each year relating to spatial privacy. In many cases (eg, in situations where surveillance is conducted by an individual or small business, or where information is not recorded) such intrusions will not be covered by current information privacy laws.[16]

Intrusion in the United States

5.23 Prosser cited a number of US cases involving intrusion upon seclusion, including cases in which the defendant intruded into someone’s home, hotel room and ‘stateroom on a steamboat’, and upon a woman in childbirth. The principle was ‘soon carried beyond such physical intrusion’ and ‘extended to eavesdropping upon private conversations by means of wire tapping and microphones’ and to ‘peering into the windows of a home’.[17] Prosser cited a case in which a creditor ‘hounded the debtor for a considerable length of time with telephone calls at his home and his place of employment’ and another case of ‘unauthorized prying into the plaintiff’s bank account’.[18]

5.24 Section 652B of the US Restatement of the Law Second, Torts concerns intrusion upon seclusion, and states:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

5.25 The accompanying commentary in the Restatement reads:

a. The form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.

b. The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff’s room in a hotel or insists over the plaintiff’s objection in entering his home. It may also be by the use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiff’s private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.[19]

5.26 The US tort of intrusion has been said to focus on ‘the means of obtaining private information rather than on the publication of the information so gained. The core of the tort is the offensive prying into the private domain of another.’[20]

Intrusion in the United Kingdom

5.27 The tort of invasion of privacy by intrusion upon seclusion is less clearly recognised in the United Kingdom (UK), but this appears to be changing.[21] Professor Chris Hunt has noted a recent trend in cases suggesting ‘English law is evolving to capture intrusions’.[22] After journalists intruded into the hospital room of the actor Gordon Kaye and took photos of the injured man, the English Court of Appeal in 1990 held that he had no right to privacy as such in English law. And in 2004, the House of Lords in Wainwright v Home Office[23] ‘expressly declined to recognize a general right to privacy which would extend to physical privacy interferences not involving the dissemination of information’.[24] But in a book review published in 2014, Hunt writes that it ‘seems inevitable that English courts would in fact provide a remedy to a claimant in Kaye’s situation if the case were decided today’.[25]

5.28 Discussing the ‘curious’ resistance of the English courts to recognise a cause of action for intrusion, Professor Raymond Wacks writes that, nevertheless,

there are a number of obiter dicta that imply that the clandestine recordings of private matters does ‘engage’ Article 8 [of the European Convention on Human Rights], that the mere taking of a photograph of a child or an adult in a public place might fall within the category of ‘misuse’. These pronouncements are either (uncharacteristic) judicial lapses or subtle, possibly even subconscious, acknowledgements of the present anomaly![26]

5.29 UK courts have recognised the potential for intrusions to invade privacy and cause harm. The majority of the House of Lords in Campbell v MGN Ltd emphasised that the covert way in which private information about the model Naomi Campbell, later published, was obtained in that case, heightened the invasion of Campbell’s privacy. Lord Hoffmann said: ‘the publication of a photograph taken by intrusion into a private place (for example, by a long distance lens) may in itself be such an infringement [of the privacy of the personal information], even if there is nothing embarrassing about the picture itself’.[27] Similarly, in Murray v Express Newspapers, Sir Anthony Clarke MR said that, ‘“the nature and purpose of the intrusion” is one of the factors which will determine whether the claimant had a reasonable expectation of privacy’.[28]

5.30 Further, in a number of recent cases, the English and European courts have begun to emphasise the intrusive aspects of the conduct under consideration, not only in the way the private information was collected,[29] but also in the effect the publication will have on the claimant’s and related parties’ lives after publication.[30] Intrusive behaviour by the UK media led to the Leveson Inquiry into the Culture, Practice and Ethics of the Press.[31]

5.31 It remains to be seen whether a separate cause of action for intrusion upon seclusion will be recognised at common law in the UK.[32] The authors of Gurry on Breach of Confidence note that the case for recognising a separate tort of privacy, as opposed to an extended equitable action for disclosure of private information, will be stronger if the courts seek to protect against intrusions into private life as well.[33]

5.32 In any event, any gap in the UK law may not be as concerning as it is in Australia, because the UK has a Protection from Harassment Act 1997 (UK), which provides some legislative protection against invasions of privacy by intrusion into seclusion.[34]

Intrusions in New Zealand

5.33 A New Zealand court has recognised a tort of intrusion upon seclusion, in a case about a man who installed a recording device in a bathroom to record his female flatmate showering. In this case, C v Holland, Whata J said that the ‘critical issue I must determine is whether an invasion of privacy of this type, without publicity or the prospect of publicity, is an actionable tort in New Zealand’.[35] The court concluded that it was. An intrusion tort was a ‘logical extension or adjunct’ to the tort for misuse of private information.[36] Whata J said that the court ‘can apply, develop and modify the tort to meet the exigencies of the time’.[37]

5.34 In defining the ingredients of the tort, Whata J drew guidance from the decision of the Ontario Court of Appeal in Jones v Tsige,[38]which had recognised a tort of intrusion into seclusion. Whata J stated:

I consider that the most appropriate course is to maintain as much consistency as possible with the North American tort given the guidance afforded from existing authority. I also consider that the content of the tort must be consistent with domestic privacy law and principles. On that basis, in order to establish a claim based on the tort of intrusion upon seclusion a plaintiff must show:

(a) An intentional and unauthorised intrusion;

(b) Into seclusion (namely intimate personal activity, space or affairs);

(c) Involving infringement of a reasonable expectation of privacy;

(d) That is highly offensive to a reasonable person.[39]

5.35 This closely resembles the tort recommended in this Report. Including intrusion upon seclusion as one of the two types of actionable invasion of privacy in the new tort would remedy one of the key deficiencies in Australian law identified in Chapter 3.