10.1 The plaintiff’s right to succeed under the new tort will be limited by appropriate defences. Defences reflect the need to protect important countervailing interests, whether they are interests of a personal or public nature. Defendants will bear the onus of proving that their conduct is subject to a defence or exemption.
10.2 This chapter begins with a defence of lawful authority. This defence will arise where, for example, law enforcement agencies rely on their statutory authority to carry out an act which would invade a person’s privacy.
10.3 The ALRC also proposes a defence for conduct that was incidental to the exercise of a lawful right of defence of persons or property where the conduct was proportionate, necessary and reasonable.
10.4 This chapter considers the desirability of a defence of necessity. The ALRC has not made a proposal for this defence, instead posing a question to stakeholders.
10.5 The ALRC proposes a number of defences which are the same as, or analogous to, defamation defences: absolute privilege; qualified privilege; publication of public documents; and fair and accurate reporting of public proceedings. These defences reflect the need to protect defendants in privacy actions from liability which would stifle legitimate reporting, debate and discussion.
10.6 There are some factors which the ALRC considers would be more appropriately considered when the court is determining whether a plaintiff has a reasonable expectation of privacy. The ALRC has not therefore proposed the following as defences: material in the public domain; consent; or public interest. As in the case of other intentional torts, contributory negligence will not be a defence.
10.7 This chapter includes a proposal for a safe harbour exemption for internet intermediaries which would exempt internet hosts and platform providers from liability provided they meet certain conditions. The ALRC is interested in stakeholder feedback on the form and content of a safe harbour exemption.