1.28 The ALRC considers that the question of whether a statutory cause of action for serious invasion of privacy would be beneficial to the Australian community is best answered after considering:
the existing legal protections for privacy;
the gaps in that legal protection identified;
the precise elements of the proposed cause of action; and
any alternative ways in which the unacceptable gaps in the law might be filled.
1.29 Only a very few stakeholders who made submissions to the Inquiry told the ALRC that the law did not need to be changed at all, and that there were no gaps in the legal protection of privacy in Australia. Those who opposed the introduction of a new cause of action recognised the gaps in the law, but submitted that it would be preferable to fill those gaps in other ways. Many other stakeholders expressed their support for a statutory cause of action. Both stakeholders who supported and those who opposed the introduction of a new cause of action made submissions as to the desirable elements of any such action.
1.30 The cause of action proposed in this Discussion Paper is more precise than similar privacy actions recommended in other law reform reports, and in some respects more narrow. The ALRC believes that precision is important so that stakeholder groups, individuals and lawmakers can reach a more informed view on the potential interpretation and application of the proposed action, on the extent of protection it may provide to potential claimants, and on the impact it may have on those who would face potential liability. Only when these assessments are made can there be an informed debate on the relative desirability of the proposed statutory cause of action or other alternatives.
1.31 Privacy law must recognise other values and interests, such as freedom of expression. This is reflected in the design of the tort proposed in this Discussion Paper. While this may mean that one interest is not as protected or as unconstrained to the extent some advocates would prefer, the ALRC considers that the law may be able to find a middle ground where a balance can be reached and a degree of useful protection can be enacted.
1.32 The statutory cause of action is thus directed at serious invasions of privacy committed intentionally or recklessly with no countervailing justification or defence. If the statute provides remedies for such invasive conduct, Australia will have made an important and clear step in providing greater protection for privacy than is currently available. It will give Australians the privacy protections enjoyed by those in other countries, including the UK, New Zealand and Canada.
1.33 The statutory cause of action is not, however, the only way that greater protection could be achieved by statutory reform. This Discussion Paper, in Part 3, suggests other measures that should be considered to improve the protection in Australia of people’s privacy in the digital age, some in addition to and some as an alternative to a new statutory cause of action.