Proposal 11–2 The new Act should set out the following non-exhaustive list of factors that may mitigate damages for serious invasion of privacy:
(a) that the defendant has made an appropriate apology to the plaintiff about the conduct that invaded the plaintiff’s privacy;
(b) that the defendant has published a correction of any untrue information disclosed about the plaintiff;
(c) that the defendant has made an offer of amends in relation to the defendant’s conduct or the harm suffered by the plaintiff;
(d) that the plaintiff has already recovered compensation, or has agreed to receive compensation in relation to the conduct of the defendant;
(e) that the defendant had taken reasonable steps to settle the dispute with the plaintiff in order to avoid the need for litigation; and
(f) that the plaintiff had not taken reasonable steps to settle the dispute, prior to commencing or continuing proceedings, with the defendant in order to avoid the need for litigation.
Proposal 11–3 The new Act should set out the following non-exhaustive list of factors that may aggravate damages for serious invasion of privacy:
(a) that the plaintiff had taken reasonable steps, prior to commencing or continuing proceedings, to settle the dispute with the defendant in order to avoid the need for litigation;
(b) that the defendant had not taken reasonable steps to settle the dispute with the plaintiff in order to avoid the need for litigation;
(c) that the defendant’s unreasonable conduct at the time of the invasion of privacy or prior to or during the proceedings had subjected the plaintiff to special or additional embarrassment, harm, distress or humiliation;
(d) that the defendant’s conduct was malicious or committed with the intention to cause embarrassment, harm, distress or humiliation to the plaintiff; and
(e) that the defendant has disclosed information about the plaintiff which the defendant knew to be false or did not honestly believe to be true.
11.16 The ALRC proposes that in assessing damages in an action for serious invasion of privacy, a court may consider any mitigating or aggravating factors which occurred before and during court proceedings.
11.17 Mitigating factors have the effect of reducing the effect or the harm of the serious invasion of privacy and will therefore reduce the amount of compensatory damages awarded to a plaintiff. Aggravating factors such as whether the plaintiff suffered particular embarrassment or humiliation due to the nature of the defendant’s conduct will increase the award of general damages.
11.18 Possible mitigating factors that a court may consider include whether either party had made attempts at alternative dispute resolution (ADR); whether the complaint had first been the subject of a determination by the Office of the Australian Information Commissioner, the ACMA or another body, (either by way of complaint or own-motion investigation) and the outcome of any determination; and whether a defendant had taken reasonable steps to redress the invasion of privacy such as through a public apology, correction order or removing the private information from an online platform.
11.19 Aggravating factors a court may consider include: where the defendant’s conduct subjected a plaintiff to additional embarrassment or hurt; where their conduct was unjustifiable or improper; or whether the defendant had published information which the defendant knew to be false.
11.20 This proposal is also intended to encourage the parties to attempt to resolve their dispute without litigation if it would be reasonable to expect them to do so.
The Defamation Act 2005 (NSW) s 38 sets out mitigating factors for a court when assessing damages. These include whether the defendant has made an apology to the plaintiff or has published a correction of the defamatory matter. In the tort of false imprisonment, the defendant’s conduct up to and including conduct at the trial is relevant in a court’s assessment of general and aggravated damages: Spautz v Butterworth (1996) 41 NSWLR 1.
These standards have been applied by courts in NSW in assessing awards of aggravating damages; see, for example, Mirror Newspapers Ltd v Fitzpatrick (1984) 1 NSWLR 643,  (Samuels JA).
McKenzie v Mergen Holdings Pty Ltd (1992) 20 NSWLR 42,  (Grove J).