11.1 The ALRC proposes that courts be granted the discretion to award a range of remedies—monetary and non-monetary—to plaintiffs who successfully bring an action for serious invasion of privacy.
11.2 The proposed range of remedies reflects the different objectives, experience and circumstances of plaintiffs who may pursue privacy actions. Some plaintiffs may seek monetary compensation, some may wish the offending behaviour to cease, some will seek to deter similar conduct in the future, while others may seek public vindication of their interests. A range of non-monetary remedies may provide a more appropriate response for the often immeasurable effects occasioned by invasions of privacy.
11.3 Most actions for invasion of privacy will concern harm to dignitary interests or emotional distress. It is therefore important that courts may award compensatory damages, including damages for the plaintiff’s emotional distress, in an action for serious invasion of privacy.
11.4 This chapter begins with the ALRC’s proposal for the courts to be empowered to award damages for economic and non-economic loss, including damages for any emotional distress suffered by the plaintiff. The ALRC proposes that a court may consider a range of mitigating and aggravating factors in the assessment of such damages, and that a separate award of aggravated damages may not be made. A court should have the discretion to award exemplary damages in exceptional circumstances where the court considers that other damages would not be a sufficient deterrent against such conduct occurring in the future. The total award of damages available for exemplary damages and damages for non-economic loss should be capped at the same level as damages for non-economic loss in defamation. This will avoid plaintiffs cherry-picking between defamation and privacy.
11.5 The ALRC also proposes that a court be empowered to award an account of profit in circumstances where a defendant has profited from the invasion of privacy. A court should be empowered to assess damages by reference to a notional licence fee.
11.6 The ALRC also proposes that courts be empowered to award non-monetary remedies: injunctive relief; an order requiring the defendant to apologise; a correction order; an order for the delivery up, destruction or removal of material; and declaratory relief. These remedies are not mutually exclusive, and may also be awarded in addition to monetary remedies. It will be at the discretion of a court to award appropriate relief in all the circumstances of a case. Therefore, a non-monetary order such as injunctive or declaratory relief will not necessarily reduce an award of damages.