Recommendation 8–2 The plaintiff should not be required to prove actual damage to have an action under the new tort.
8.39 The new tort should not require the plaintiff to prove—as an element of the tort, rather than for the purpose of awarding compensation—that he or she suffered actual damage. The tort should be actionable per se.
8.40 If the privacy tort is actionable per se, it will in this respect be similar to other intentional torts that are concerned with the intangible, dignitary interests of the plaintiff—assault, battery and false imprisonment. In a sense, the wrong itself is the harm. Or in other words, the harm is inherent in the wrong.
8.41 The authors of Markesinis and Deakin’s Tort Law state that ‘the function of the interference torts is not to engage in loss-spreading in the same way [as the tort of negligence], but to affirm the fundamental importance of certain constitutional interests, such as personal bodily integrity and freedom of movement, in their own right’. Further, they write, in the torts of trespass to the person and interference with land and with chattels,
the emphasis is less on the nature of the damage suffered and on whether the defendant’s conduct can be characterised as ‘fault’, as on the nature of the interference with the claimant’s rights, in particular on whether it was direct or indirect and on whether, in the context of various defences, it can be characterised as justified or not.
8.42 The ALRC considers that the tort for serious invasion of privacy should have a similar function—it should affirm the fundamental importance of privacy.
8.43 In Tugendhat and Christie: The Law of Privacy and the Media, the authors state that because one of the principal aims of the torts of battery, assault and false imprisonment is to ‘vindicate the indignity inherent in unwanted touching, threatening, and confinement, they are actionable per se. That is, harm to the plaintiff is assumed’. The authors go on to state that, if
one of the principal aims of the protection of privacy is the preservation of dignity, then consistency with trespass to the person might suggest that breaches of a reasonable expectation of privacy should also be actionable per se.
8.44 In practice, serious invasions of privacy will usually cause emotional distress to the plaintiff. Emotional distress is not generally recognised by the common law as ‘actual damage’, which refers to personal injury, property damage, financial loss, or a recognised psychiatric illness. As a number of stakeholders submitted, the damage often caused by invasions of privacy—such as distress, humiliation and insult—may be intangible and difficult to prove. The Public Interest Advocacy Centre submitted that a person’s ‘dignity is vitally important but its intrinsic nature makes it difficult to quantify in monetary terms the impact of any damage to it’. Many stakeholders submitted that the action should not require proof of damage.
8.45 The ALRC agrees that invasions of privacy may often cause ‘only’ emotional distress. If proof of actual damage as recognised by the common law were required, this would deny redress to many victims of serious invasions of privacy, and significantly undermine the value and purpose of introducing the new tort. If the goal then is to allow plaintiffs to recover damages for emotional distress, the issue is how the law may best achieve this.
8.46 One option would be to require proof of damage but define damage, for the purposes of the action, to include emotional distress. This would be consistent with s 52 of the Privacy Act. This provides that the Australian Information Commissioner may make declarations regarding, among other things, redress or compensation for ‘loss or damage’, which is defined to include:
(a) injury to the feelings of the complainant or individual; and
(b) humiliation suffered by the complainant or individual.
8.47 However, this approach would be inconsistent with both the well-established common law definition of actual damage and with the civil liability legislation in most states and territories (dealing with negligently inflicted mental harm). It is desirable for civil liability under the new tort to be consistent with other civil liability in tort. The ALRC considers that the preferable approach is to make the new tort actionable per se. The threshold of seriousness and the fault element will bar trivial or minor claims, and it will be rare that a plaintiff will suffer no distress from a serious invasion of privacy. In practice, if no emotional distress or actual damage has been suffered by a plaintiff, there would only be an award of damages if the circumstances of the invasion were such that there was a strong need for vindication, or, in exceptional circumstances, exemplary damages.
8.48 Some stakeholders supported making the tort actionable per se, arguing that invasions of privacy were ‘abhorrent’ and that it was important that the cause of action ‘establish a clear deterrent’. Others submitted that requiring proof of damage would burden or deter potential litigants.
8.49 The ALRC recommended that plaintiffs should not be required to prove damage in its 2008 privacy report. The recommendation is also consistent with Canadian statutory causes of action.
8.50 It also appears that there is no requirement to prove damage in claims for disclosure of private information under UK law. This is consistent with equitable claims for breach of confidence, where proof of detriment is not required. In practice this issue is not significant as most, if not all, privacy claims in the UK have been either for an injunction to prevent an invasive publication or for damages for emotional distress.
8.51 A number of stakeholders submitted that the plaintiff should be required to prove actual damage. If proof of damage is not required, these stakeholders argued, there will be a proliferation of claims, many without merit, and this may lead to significant extra costs to industry. For example, the Australian Subscription Television and Radio Association submitted that not requiring proof of damage may ‘encourage serial litigants and dubious proceedings’. Free TV Australia said it ‘would significantly increase the risk of the cause of action being misused and simply encouraging litigation in circumstances where there is a clear public interest in dissemination of the relevant private information’.
8.52 The Arts Law Centre of Australia also submitted that if the new tort were actionable per se, the arts and media industries would bear much of the cost of ‘determining these potentially unfounded or unmeritorious claims’. Telstra suggested that if proof of damage were not required, it would not be an action for ‘serious’ invasions of privacy: without actual damage, the invasion would not be serious.
8.53 In the ALRC’s view, other elements of the cause of action should ensure that frivolous and unmeritorious claims are neither brought nor successful. To have an action under the privacy tort, the plaintiff must prove that he or she had a reasonable expectation of privacy, that the invasion of privacy was intentional or reckless, and that it was serious. The court must also be satisfied that there was no countervailing interest justifying the invasion of privacy. If the plaintiff is able to get over these significant hurdles, it should not be necessary for them to also prove actual damage.
8.54 If a new privacy tort were enacted that required the plaintiff to prove damage, it would be essential that damage include emotional distress.
On trespass, see O’Donohue v Wille and Ors   NSWSC 661 (6 July 1999); Rosalie Balkin and Jim Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013) 30; Letang v Cooper  1 QB 232 245. Defamation, while sometimes described as actionable per se, is different in that some damage to reputation is presumed to follow the defamatory publication: Ratcliffe v Evans (1892) 2 QB 524, cited in Ell v Milne (No 8)  NSWSC 175 (7 March 2014) . There would be no presumption of damage in the new tort. The Defamation Act 2005 (NSW) s 7(2) provides that the ‘publication of defamatory matter of any kind is actionable without proof of special damage’. Note, however, that there is a defence to defamation of triviality.
See M Warby et al, Tugendhat and Christie: The Law of Privacy and The Media (OUP Oxford, 2011) [8.48].
Simon F Deakin, Angus Johnston and Basil Markesinis, Markesinis and Deakin’s Tort Law (Oxford University Press, 2012) 360.
Warby et al, above n 32, [8.48].
N Witzleb, Submission 29; Law Institute of Victoria, Submission 22; NSW Council for Civil Liberties, Submission No 62 to DPM&C Issues Paper, 2011; Public Interest Advocacy Centre, Submission No 59 to DPM&C Issues Paper, 2011.
Public Interest Advocacy Centre, Submission 30.
Office of the Victorian Privacy Commissioner, Submission 108; Office of the Australian Information Commissioner, Submission 66; NSW Young Lawyers, Submission 58; Women’s Legal Services NSW, Submission 57; Queensland Council of Civil Liberties, Submission 51; ABC, Submission 46; Electronic Frontiers Australia, Submission 44; Australian Privacy Foundation, Submission 39; Public Interest Advocacy Centre, Submission 30; N Witzleb, Submission 29; B Arnold, Submission 28; Law Institute of Victoria, Submission 22; I Pieper, Submission 6; I Turnbull, Submission 5.
Privacy Act 1988 (Cth) s 52(1AB).
Eg, Civil Liability Act 2002 (NSW) s 31.
B Arnold, Submission 28.
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) Rec 74–3.
In British Columbia, for example, ‘[i]t is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another’: Privacy Act, RSBC 1996, c 373 (British Columbia) s 1(1). See also Privacy Act, RSS 1978, c P-24 (Saskatchewan) s 2; Privacy Act, CCSM 1996, c P125 (Manitoba) s 2(2); Privacy Act, RSNL 1990, c P-22 (Newfoundland and Labrador) s 3(1).
Dyson Heydon, Mark Leeming and Peter Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2014) 1121.
ASTRA, Submission 47; Telstra, Submission 45; Arts Law Centre of Australia, Submission 43; Optus, Submission 41; Australian Bankers’ Association, Submission 27; Office of the Information Commissioner, Queensland, Submission 20; Insurance Council of Australia, Submission 15; D Butler, Submission 10.
Telstra, Submission 45; Arts Law Centre of Australia, Submission 43; Insurance Council of Australia, Submission 15; Office of the Victorian Privacy Commissioner, Submission No 46 to DPM&C Issues Paper, 2011 4688; SBS, Submission No 8 to DPM&C Issues Paper, 2011; Australian Direct Marketing Association, Submission No 57 to DPM&C Issues Paper, 2011.
ASTRA, Submission 47.
Free TV, Submission 109.
Arts Law Centre of Australia, Submission 43.
‘If an individual has suffered no damage, an alleged privacy breach should not give rise to a cause of action as a serious invasion of privacy’: Telstra, Submission 107 (emphasis in original).