Strict liability

7.72 The ALRC does not support the new tort imposing strict liability. Strict liability leads to liability regardless of fault. If the cause of action were one of strict liability, then the defendant would be held liable even though they were not at fault, that is, the defendant’s actions were not intentional, reckless or negligent.

7.73 The ALRC considers that strict liability would be too onerous and broad, and that it is inconsistent with modern trends in tort law to fault-based liability. Examples of statutory strict liability are directed at pecuniary loss or material damage in particular contexts, such as consumer protection or product liability, unlike claims for invasion of privacy which will arise in a wide variety of contexts and generally involve dignitary or intangible interests.

7.74 For similar reasons to those outlined in respect of negligence-based liability, it would not be appropriate to make a strict liability tort actionable per se, yet this feature of the new tort is an important protection of privacy from intentional or reckless invasion.

7.75 Strict liability is now relatively rare in Australian common law, outside contractual obligations and fiduciary obligations, both of which rest on relationships that, ordinarily, have been voluntarily entered into by the parties. In Northern Territory v Mengel, a majority of the High Court remarked that

the recent trend of legal development, here and in other common law countries, has been to the effect that liability in tort depends on either the intentional or the negligent infliction of harm. That is not a statement of law but a description of the general trend.[83]

7.76 Defamation is one of the rare examples of a common law tort liability that is strict, and is complete on proof of publication of defamatory material. It is the fact of defamation, not the intention of the defendant, that generates liability. Fleming’s The Law of Torts states that the

justification for this stringent liability is presumably that it is more equitable to protect the innocent defamed rather than the innocent defamer (who, after all, chose to publish); another is that the publication, not the composition of the libel, is the actionable wrong, making the state of mind of the publisher, not the writer, relevant … Does reputation deserve a higher level of protection than personal safety?[84]

7.77 The ALRC considers that the same may be said of privacy.

7.78 The Uniform Defamation Laws that came into force in the Australian states and territories in 2006 does provide for a defence of innocent dissemination,[85] so that an absence of fault may excuse the defendant. This defence is available where the defendant proves, among other things, that he or she ‘neither knew, nor ought reasonably to have known, that the matter was defamatory’.[86] Nevertheless, liability arises upon publication.[87] It is not incumbent on the plaintiff to prove that the defendant knew that the publication was defamatory of the plaintiff or even knew the circumstances that rendered the publication defamatory or that the defendant failed to take care in relation to the publication of the statement.[88]

7.79 Liability in defamation is notoriously onerous and is widely regarded as a significant limitation on freedom of speech in Australia,[89] and particularly burdensome on the media,[90] compared to the position in other countries such as the United States and the United Kingdom. The ALRC considers it undesirable to introduce a tort that would lead to a potential liability as onerous and as restrictive on freedom of speech as current liability in defamation.

7.80 Most strict liabilities now arise by statute[91] and provide a remedy for physical damage or financial loss. Important examples in Australian law are:

  • statutory liability for (financial) losses caused by breach of the prohibition of misleading or deceptive conduct in trade or commerce imposed by the Australian Consumer Law and state and territory Fair Trading Acts;[92]

  • statutory liabilities for physical damage caused by defective products;[93] and

  • statutory liability for damage caused by aircraft.[94]

7.81 The Office of the Australian Information Commissioner (OAIC) noted that no fault element is required for complaints made to the OAIC for an interference with privacy under the Privacy Act, and that a finding of an interference with privacy can be made in relation to ‘negligent and accidental acts, as well as those which are intentional or reckless’.[95] However, the Privacy Act regulates government agencies and corporations which have the resources to take precautions to avoid negligent data breaches. An action under the new tort, on the other hand, could be taken against natural persons, who will usually not have such resources. Further, liability and costs may potentially be greater under the new tort than as a result of the complaints process under the Privacy Act. The statutory cause of action potentially applies to a wider range of activities than the Privacy Act.

7.82 Some have argued that one reason why liability for invasions of privacy should be strict, at least with respect to wrongful disclosure of private information, is that this would be consistent with actions in defamation and breach of confidence.[96] However, the analogy with breach of confidence is imperfect. Breach of confidence arises where there was a pre-existing obligation which informs and binds the defendant’s conscience, or knowledge that the information was imparted under that obligation.[97] There is therefore a stronger case for strict liability in such circumstances than under the new tort where a plaintiff merely has to show a reasonable expectation of privacy.

7.83 Further, given that the ALRC does not recommend that the new tort of invasion of privacy replace the action for breach of confidence, a plaintiff who can rely on a pre-existing obligation of confidence will still be able to sue in that equitable action, relying on strict liability.[98] Such plaintiffs would also, no doubt, wish to rely on the favourable principles underlying the remedy of an injunction in the equitable breach of confidence action.[99]

7.84 Some stakeholders suggested that some invasions of privacy should not attract liability where the conduct is not blameworthy. The Arts Law Centre of Australia submitted the example of a documentary maker ‘filming in a public place which looks onto a private apartment where someone is getting undressed’ and so accidentally invading someone’s privacy.[100] Similarly, SBS noted:

There are many ways in which footage, images or other material may breach someone’s privacy in a way which is unintentional. A common example would be the kind of footage filmed for use in news broadcasts, often wide angle shots of crowds, or footage of incidental comings and goings out of buildings relevant to a news story. It is very possible that in such a story, a person or incident might be captured that the person considered a breach of their privacy.[101]

7.85 The Australian Bankers’ Association submitted that ‘the trend in legislation to more strict liability provisions associated with the imposition of civil penalties continues to be a major concern for the private sector’:

The cause of action given its likely scope and imprecision should not be cast in the tortious framework of negligence. Rather it should apply only to an intent to seriously interfere with a person’s privacy or to do so with reckless indifference to that result and this has occurred. [102]

7.86 The ALRC agrees that strict liability would be too onerous.