Correction orders

Proposal 11–11 The new Act should provide that courts may make a correction order, in an action for serious invasion of privacy.

11.70 The ALRC proposes that courts be given the power to order defendants to publish, in appropriate terms, a correction.[87] Such an order can set the record straight, and may be necessary where, for example, the defendant disclosed untrue private information about the plaintiff.

11.71 The disclosure of private information may amount to a serious invasion of privacy despite the information being untrue.[88] Private information can include information which is true or false so long as it has a quality of privacy, that is, the subject matter of the information is sufficiently private or personal in nature so that its disclosure would cause emotional distress to a relevant individual. In the Canadian case of Ash v McKennit, Longmore J noted:

The question in a case of misuse of private information is whether the information is private, not whether it is true or false. The truth or falsity of the information is an irrelevant inquiry in deciding whether the information is entitled to be protected and judges should be wary of becoming side-tracked into that irrelevant inquiry. [89]

11.72 Correction orders may reduce the need for a plaintiff’s interests to be vindicated through an award of damages.[90] Some plaintiffs may be primarily concerned with correcting the public record, in which case the advantage of correction orders is they appear in the original publication and therefore target the same audience. Witzleb and Carroll have made the point that in actions to restore personality interests, monetary remedies may be ill-suited.[91] Instead, coercive methods such as public corrections may be more appropriate to reverse or reduce the effect of an invasion of privacy which has demeaned and distressed the plaintiff in a public forum.

11.73 The Australian Subscription Television and Radio Association (ASTRA) opposed any remedies which would compel corrections, arguing that media organisations are already subject to similar provisions in ASTRA Codes which are registered with the ACMA.[92] However there may be instances where a plaintiff is awarded a range of remedies as part of the cause of action including damages and an order for apology. In such cases, the availability of those remedies in a single cause of action will provide simplicity for all parties to a proceeding. A plaintiff would not need to pursue a defendant through both a regulatory scheme and through the courts in relation to the same serious invasion of privacy. Furthermore, if a defendant has already made a statement involving a correction, this will mitigate an award of damages.[93]