Delivery up, destruction or removal of material

Proposal 11–10 The new Act should provide that courts may order the delivery up and destruction or removal of material, in an action for serious invasion of privacy.

11.65 Orders for the delivery up, destruction or removal of material will be an appropriate remedy for serious invasions of privacy where a defendant has obtained private information about a plaintiff and has exhibited an intention to disclose that information to a third party. This may arise in a situation where two people in an intimate relationship share images or text of a highly personal nature and, at the end of the intimate relationship, one party intends to publish or disclose those images to a third party. In such a case, courts may order that the material be delivered to a court and destroyed. Several stakeholders supported this proposal.[81]

11.66 The ALRC intends this power to extend to orders for the take-down of online content which amounts to a serious invasion of privacy. A court may order that an online provider or an individual who controls their own website (such as a blogger) must remove or take-down specific content. An analogous provision exists at s 133 of the Copyright Act 1968 (Cth), which empowers a court to order the delivery up and destruction of material which violates copyright law.

11.67 Australian courts have existing powers to issue similar orders. For instance, Anton Pillar orders are a form of mandatory injunction, issued by a court to prevent the destruction of evidence.[82] Anton Pillar orders are issued when a court considers that a defendant is likely to destroy documents or property necessary for proceedings.[83]

11.68 The NSWLRC and ALRC[84] previously recommended that courts be empowered to make an order for the delivery up and destruction of material. The NSWLRC recommended that courts be empowered to order a defendant to deliver to a plaintiff any ‘articles, documents or material (and any copies), that were made or disclosed as a result of the invasion’.[85]

11.69 The OAIC and PIAC suggested that, in an action under the new tort, courts be able to make an order requiring a defendant to rectify its business or IT practices to redress systemic problems with the way it stores private information.[86] The ALRC has not proposed such an order as such systemic problems would generally be the result of negligent acts or omissions and be more appropriately dealt with by the regulator. The cause of action proposed in this Discussion Paper is confined to intentional or reckless invasions of privacy.