Recommendation 9–3 The Act should provide that the defendant has the burden of adducing evidence that suggests there is a countervailing public interest for the court to consider. The Act should also provide that the plaintiff has the legal onus to satisfy the court that the public interest in privacy outweighs any countervailing public interest that is raised in the proceedings.
9.73 Should the plaintiff be required to prove that the public interest in privacy outweighs any countervailing public interest? Or should the defendant be required to prove that the public interest outweighs the privacy interest? This was one of the more difficult questions raised in this Inquiry.
9.74 The ALRC has concluded that, if a court considers that the privacy interests and public interests at stake in a particular case are evenly weighted, then the plaintiff should not have a cause of action. The plaintiff should be required to satisfy the court that the public interest in privacy outweighs any countervailing public interests. The ALRC agrees with the NSWLRC when it stated in its report:
Legal principle requires that plaintiffs bear the onus of establishing their case. It is appropriate, in our view, that, as part of establishing an invasion of privacy, plaintiffs should demonstrate at the outset that their claim to privacy is not outweighed by a competing public interest. Quite simply, privacy only needs protection if it is not outweighed, in the circumstances, by such a competing interest.
9.75 The alternative approach of making public interest a defence carries a risk that the cause of action would be used to stifle or ‘chill’ activities that are socially desirable, particularly the operations of the media.
9.76 Some stakeholders said that the plaintiff should have the onus of proof. Telstra submitted that:
given the seriousness of the cause of action and the potentially chilling effect it may have on business and service providers, the onus of proof should be on the plaintiff to ensure that their claim is sufficiently serious to outweigh public interest concerns at the outset.
9.77 To make this decision, a court must have some evidence before it. Although the ultimate legal burden will remain with the plaintiff, the ALRC recommends that the Act provide that the defendant has the burden of adducing any evidence of public interest. The defendant should usually be in a better position to provide evidence that the invasion of privacy was in the public interest. A newspaper, for example, will generally be better placed to bring evidence of the public interest in free speech than a person whose privacy the newspaper has invaded. The Law Institute of Victoria submitted that evidence will be required, for example, ‘about why the privacy breach occurred and why the defendant acted in the way they did—evidence that can only be provided by the defendant’.
9.78 In some cases, the public interest will be obvious or raised in the plaintiff’s pleadings. In other cases, where no evidence is raised of countervailing public interests, the court may not need to balance competing interests, and this element of the tort will be satisfied. The plaintiff will not have to separately plead and prove the non-existence of public interests that have not been raised.
9.79 Although some stakeholders submitted that a balancing exercise should be carried out when determining actionability, as the ALRC has recommended, others submitted that there should instead be a public interest defence, and that the defendant should bear the burden of proof. Associate Professor Moira Paterson submitted:
the plaintiff already has the onus of establishing that he or she had a reasonable expectation of privacy which was breached in a serious way. The requirement that a privacy breach needs to be serious to justify litigation itself acknowledges that there is a competing interest in transparency that should always trump where the privacy breach is trivial in nature. In those circumstances it is not unreasonable to require the defendant to prove that a serious breach was nevertheless in the public interest because of the strong public interest in freedom of expression (or some other competing interest).
9.80 The Victorian Law Reform Commission (VLRC) argued that the burden of proving the existence of a countervailing public interest should lie with the defendant. The VLRC argued that a plaintiff ‘should not have to prove a negative, such as the lack of a countervailing public interest’.
9.81 New Zealand has a defence of ‘legitimate public concern’ to invasions of privacy. The Court of Appeal of New Zealand stated, in Hosking v Runting, that it was ‘more conceptually sound’ for the absence of legitimate public interest to be treated as a defence, rather than as an element of the tort itself, ‘particularly given the parallels with breach of confidence claims’. There are also public interest defences to privacy torts in Canada.
9.82 In supporting a public interest defence, the law firm Maurice Blackburn has noted that a similar approach has been used for other statutory causes of action in Australia. Under the Racial Discrimination Act 1975 (Cth), ‘it is for the defendant to show that their conduct should be exempted because it has been done reasonably and in good faith for particular specified purposes’; and ‘under the Racial and Religious Tolerance Act 2001 (Vic) the defendant must demonstrate that conduct which would otherwise be racial or religious vilification was justified because it was in the public interest’.
9.83 However, the ALRC considers that it is preferable to consider the public interest when determining actionability at the outset, and that the plaintiff should bear the legal onus of proof on matters going to actionability. This should better ensure that privacy interests are not unduly privileged over other important rights and interests. Privacy is an interest that is relative, and the context and circumstances of the conduct are critical factors: the balancing at this stage of the action reflects this.
NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) 28. This was also the approach recommended by the ALRC in 2008: Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) [17.157].
Telstra, Submission 45. See also, SBS, Submission 59; ASTRA, Submission 47.
This is the evidential burden—ie, ‘the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue, due regard being had to the standard of proof demanded of the party under such obligation’: Dyson Heydon, Cross on Evidence (Lexis Nexis Butterworths, 9th ed, 2012)  (citations omitted). The legal burden of proof, on the other hand, is ‘the obligation of a party to meet the requirement of a rule of law that a fact in issue be proved (or disproved) either by a preponderance of the evidence or beyond reasonable doubt, as the case may be’: Ibid . On the distinction between the legal onus of proof and the evidentiary or strategic onus of proof, see also Bob Williams, ‘Burdens and Standards in Civil Litigation’ (2003) 25 Sydney Law Review 165.
Law Institute of Victoria, Submission 96. Dr Normann Witzleb: ‘the defendant will often be in a better position, and have the greater interest, to adduce the evidence necessary for establishing the weight of the public interest in his or her conduct’: Normann Witzleb, ‘A Statutory Cause of Action for Privacy? A Critical Appraisal of Three Recent Australian Law Reform Proposals’ (2011) 19 Torts Law Journal 104, 121–122. See also Australian Privacy Foundation, Submission 39; Public Interest Advocacy Centre, Submission 30; D Butler, Submission 10.
Law Institute of Victoria, Submission 96. However, in making this point, the LIV also said that ‘the defendant should not be required to put on evidence until the cause of action has been established; that is, as a defence to a serious invasion of privacy’. The ALRC considers that the evidentiary and legal burden can be separated, so that the defendant has the onus to adduce evidence, but the plaintiff the onus to prove on the balance of probabilities that the privacy interest outweighs any public interest.
Arts Law Centre of Australia, Submission 113; S Higgins, Submission 82; I Turnbull, Submission 81; Guardian News and Media Limited and Guardian Australia, Submission 80; National Association for the Visual Arts Ltd, Submission 78; Google, Submission 54; ASTRA, Submission 47; ABC, Submission 46; Telstra, Submission 45.
Women’s Legal Services NSW, Submission 115; Office of the Victorian Privacy Commissioner, Submission 108; UNSW Cyberspace Law and Policy Community, Submission 98; Australian Sex Party, Submission 92; Office of the Australian Information Commissioner, Submission 66; NSW Young Lawyers, Submission 58; Electronic Frontiers Australia, Submission 44; Arts Law Centre of Australia, Submission 43; Australian Privacy Foundation, Submission 39; Public Interest Advocacy Centre, Submission 30; N Witzleb, Submission 29; B Arnold, Submission 28; Australian Bankers’ Association, Submission 27; Law Institute of Victoria, Submission 22; Pirate Party of Australia, Submission 18; D Butler, Submission 10; T Gardner, Submission 3. (Stakeholders generally did not distinguish between a legal and evidentiary burden).
M Paterson, Submission 60.
Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010) recs 27, 28.
In relation to the publication of private information, see: Hosking v Runting (2005) 1 NZLR 1, . In relation to intrusion upon seclusion, see: C v Holland 3 NZLR 672, .
Hosking v Runting (2005) 1 NZLR 1, . See, also, : ‘Furthermore, the scope of privacy protection should not exceed such limits on the freedom of expression as is justified in a free and democratic society. A defence of legitimate public concern will ensure this. The significant value to be accorded freedom of expression requires that the tort of privacy must necessarily be tightly confined. In Douglas v Hello! Brooke LJ formulated the matter in the following way (at para ): “[A]lthough the right to freedom of expression is not in every case the ace of trumps, it is a powerful card to which the courts of this country must always pay appropriate respect.”’
Where the act of invasion was a publication, the four Canadian provinces that have enacted statutory causes of action for invasion of privacy provide a defence where the publication was in the public interest: see, eg Privacy Act, RSBC 1996, c 373 s 2(3)(a).
Maurice Blackburn Lawyers, Submission No 45 to DPM&C Issues Paper, 2011 (citations omitted).