One cause of action, not two

5.78 The ALRC recommends that there be one cause of action covering the two broad types of invasion of privacy. A similar approach, recommended by the Victorian Law Reform Commission (VLRC), would be to enact two separate but ‘overlapping’ causes of action. However, enacting separate causes of action should only be necessary if the actions would be substantially different—that is, have different elements, defences and remedies. The ALRC considers that separate actions are not necessary.

5.79 The VLRC’s reasons for recommending two causes of action largely relate to the widely recognised difficulty of defining privacy:

Legislating to protect these broadly recognised sub-categories of privacy is likely to promote greater clarity about the precise nature of the legal rights and obligations that have been created than by creating a broad civilly enforceable right to privacy.[91]

5.80 The ALRC has come to a similar conclusion, which is one reason it recommends that the action be confined to two more precisely defined sub-categories of invasion of privacy. The categories recommended by the ALRC are broadly the same as the categories identified by the VLRC.

5.81 Although the ALRC and VLRC approaches are broadly consistent, the ALRC considers it important that there be only one cause of action. The availability of two causes of actions may cause unnecessary overlap and duplication in many cases in which both types of invasion arise. Dr Ian Turnbull submitted that one reason for having only one cause of action is that ‘in most cases intrusion upon seclusion will be followed by misuse of the private information obtained by the intrusion’.[92]

5.82 The availability of two torts would increase the length and cost of proceedings and risk duplication in monetary damages. There will already be cases where the cause of action may overlap with other causes of action such as trespass or breach of contract or breach of confidence. It would be undesirable to risk inviting further duplication.

5.83 Some stakeholders argued that there are important differences between intrusions upon seclusion and misuse of private information, and that these differences suggest there should be two separate and tailored causes of action. Barker submitted that there should be separate causes of action because they should have different fault elements.[93] However, as discussed in Chapter 7, the ALRC considers that they should have the same fault element—they should only be actionable where the conduct of the plaintiff was intentional or reckless.

5.84 Importantly, as Hunt has argued, having a single action also ‘avoids the problem of discordant principles emerging between the two actions, which would be undesirable since they protect the same interest’.[94]

5.85 The ALRC considers the cause of action designed in this Report to be flexible enough to deal with both types of invasion of privacy, while providing sufficient guidance and certainty.