A test for what is private

Recommendation 6–1 The new tort should be actionable only where a person in the position of the plaintiff would have had a reasonable expectation of privacy, in all of the circumstances.

6.5 Whether a plaintiff has a reasonable expectation of privacy is a useful and widely adopted test of what is private, for the purpose of a civil cause of action for invasions of privacy. The ALRC recommends that, to have an action under the new tort, the plaintiff should be required to establish that a person in the plaintiff’s position would have had a reasonable expectation of privacy, in all of the circumstances.

6.6 This is preferable to attempting to define ‘privacy’ in the Act as it is notoriously difficult to define. In ABC v Lenah Game Meats, Gleeson CJ said:

There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private.[1]

6.7 The test recommended by the ALRC is an objective one. The court must consider, not whether the plaintiff subjectively expected privacy, but whether it would be reasonable for a person in the position of the plaintiff to expect privacy. The subjective expectation of the plaintiff may be a relevant consideration, particularly if that expectation was made manifest, but it is not the focus of the test, nor an essential element that must be satisfied.[2]

6.8 In determining whether a person would have a reasonable expectation of privacy, the court should consider ‘all of the circumstances’. Some of these circumstances will relate to the position of the particular plaintiff, and therefore to this extent the test has a subjective element. More broadly, the phrase ‘all of the circumstances’ highlights that whether this test will be satisfied will depend very much on the facts of each particular case.

6.9 The ‘reasonable expectation’ test was supported by a number of stakeholders.[3] It was said to be flexible and able to adapt to new circumstances.[4] This is important, because community expectations of privacy will change between cultures and over time. The Office of the Information Commissioner, Queensland, submitted that the reasonable expectation of privacy test ‘would reflect both community standards and provide sufficient flexibility for the modern range of social discourses’.[5] The Australian Interactive Media Industry Association submitted that the reasonable expectation requirement was ‘an important mechanism by which to ensure that only sensible and genuine privacy matters are able to access the courts and seek redress’.[6]

6.10 Similar tests have been recommended in reports of the ALRC, the NSW Law Reform Commission (NSWLRC) and the Victorian Law Reform Commission (VLRC).[7] This test is also used in a number of other jurisdictions. It has been adopted in the United Kingdom (UK), New Zealand, and several Canadian provinces.[8]

6.11 In Campbell v MGN, Lord Nicholls said that ‘the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy’.[9] Lord Hope said that the ‘question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity’.[10]

6.12 Some stakeholders opposed the use of a reasonable expectation test,[11] with some saying that the test was too vague.[12] In the ALRC’s view, the test must be flexible, but not uncertain. Courts are used to determining issues of reasonableness or even reasonable expectation in other contexts.[13]

6.13 Professor Eric Barendt has said the test is artificial.[14] He wrote that in ‘many cases a claimant will have had no actual expectations at the time his privacy was infringed’.[15] The ALRC considers that, although the subjective expectations of the plaintiff may sometimes be relevant, the focus of the test should be on whether a reasonable person would expect privacy, not whether the plaintiff in fact expected privacy. To make this clearer, the ALRC recommends that the Act refer to whether a ‘person in the position of the plaintiff’ would have a reasonable expectation of privacy.

6.14 The ALRC also considers that there are notable benefits in using a test that has been used for some time in other jurisdictions: in applying the test, Australian courts will be able to draw on jurisprudence from the UK, New Zealand and the United States (US).

6.15 Some stakeholders, while supporting a reasonable expectation of privacy test, nevertheless expressed some concern that expectations of privacy may be considered to have fallen, perhaps following common and unchallenged industry practices. The concern was that, because technologies and services would increasingly encroach into people’s private lives, people will then either actually expect less privacy, or it will increasingly seem unreasonable to expect the same level of privacy. There is a concern that privacy standards would erode.[16]

6.16 However, as noted above, other stakeholders considered that its ability to adapt to community standards to be one of the strengths of the reasonable expectation of privacy test. For example, the Australian Subscription Television and Radio Association (ASTRA) noted the ‘evolution of society’s understanding of what is a private matter since the advent of publicly available social media profiles’.[17]

6.17 Community expectations of privacy no doubt change, but the ALRC considers that a privacy tort must be able to adapt to such changes. Legislative privacy standards cannot be set in stone. But this does not mean the standards are infinitely flexible, or that it might soon be unreasonable to expect any privacy. Privacy has been valued by so many for so long that not only is it not dead, as some have dramatically claimed, but it should continue to be reasonable to expect privacy in many circumstances.

6.18 Although there is a separate element of the tort that explicitly confines the tort to ‘serious’ invasions of privacy,[18] the ‘reasonable expectation of privacy’ test should also help ensure that non-serious privacy interests are not actionable under the tort.

Highly offensive?

6.19 In ABC v Lenah Game Meats, Gleeson CJ proposed a different test for what is private:

Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.[19]

6.20 This passage was referred to, a number of times, in opinions of the House of Lords in Campbell. Lord Nicholls said this test should be used with care, for two reasons:

First, the ‘highly offensive’ phrase is suggestive of a stricter test of private information than a reasonable expectation of privacy. Second, the ‘highly offensive’ formulation can all too easily bring into account, when deciding whether the disclosed information was private, considerations which go more properly to issues of proportionality; for instance, the degree of intrusion into private life, and the extent to which publication was a matter of proper public concern. This could be a recipe for confusion.[20]

6.21 Baroness Hale also preferred an objective reasonable expectation test, saying that it was ‘much simpler and clearer’ than an offensiveness test of privacy.[21] Further, Baroness Hale said that it was apparent that Gleeson CJ did not intend for the ‘highly offensive’ test to be the only test,

particularly in respect of information which is obviously private, including information about health, personal relationships or finance. It is also apparent that he was referring to the sensibilities of a reasonable person placed in the situation of the subject of the disclosure rather than to its recipient.[22]

6.22 The ALRC considers that the offensiveness of a disclosure or intrusion should be one matter able to be considered by a court in determining whether there is a reasonable expectation of privacy. It is more reasonable to expect privacy, where a breach of privacy would be considered highly offensive. As discussed in Chapter 8, offence may also be used to distinguish serious invasions of privacy from non-serious invasions of privacy.

Relationship with other elements and defences

6.23 Some matters will be relevant to the reasonable expectation of privacy test and also to other elements and defences of the tort.

6.24 For example, some public interest matters may be considered when determining whether the plaintiff had a reasonable expectation of privacy, even though the ALRC recommends that the tort feature a separate public interest test. In some cases, a public interest matter will be so conspicuous that it may not be sensible to ignore it when determining whether the plaintiff has a reasonable expectation of privacy.

6.25 Other matters may be the subject of a separate defence. For example, a separate defence for consent is recommended in Chapter 11. However, evidence of consent to the relevant conduct or related or similar conduct may also affect whether the plaintiff had a reasonable expectation of privacy.