12.1 This chapter makes two proposals dealing with existing protections of privacy at common law and with a view to the likely development of the common law if a statutory cause of action is not enacted.
12.2 In addition to and separate from the detailed legal design of a statutory cause of action for serious invasion of privacy, the Terms of Reference require the ALRC to make recommendations as to other legal remedies to redress serious invasions of privacy and as to innovative ways in which the law may reduce serious invasions of privacy.
12.3 The Terms of Reference also direct the ALRC to make recommendations as to the necessity of balancing the value of privacy with other fundamental values including freedom of expression and open justice.
12.4 The first proposal is intended to redress uncertainty in the community as to whether Australian law provides a remedy for emotional distress suffered as a result of a breach of privacy which takes the form of the disclosure or misuse of private (possibly confidential) information. The first proposal is that courts be empowered to award compensation for emotional distress in such cases.
12.5 The ALRC also proposes that countervailing public interests, including freedom of expression, be considered by a court in an application to prevent publication of private information. This may be particularly important if the tort proposed in this Discussion Paper is not enacted, and greater protections against disclosure of private information instead develop at common law. It is unclear what principles should govern the exercise of the court’s discretion in any action to protect merely private (not confidential) information. Australian case law provides only a very limited role for public interest considerations as a justification for restraining the breach of an obligation of confidence. By contrast, defamation law incorporates well-established principles which protect freedom of speech. The ALRC considers that there should be protections for freedom of speech in applications to prevent the disclosure of private, but not confidential, information.
In this chapter, the ALRC does not consider the possible development at common law of a new or separate tort for harassment or intrusion into seclusion, because it considers that, in the absence of a statutory cause of action for serious invasion of privacy, a statutory action for protection against harassment is the more appropriate way for the law to be developed: see Ch 14. If, however, the common law were to develop a tort of harassment or a tort of invasion of privacy by intrusion into seclusion, it would be necessary for the courts expressly to identify its elements, including whether: it was actionable per se, by analogy with trespass to the person; required damage in the usual sense of psychiatric or physical illness; or required damage but including emotional distress.
This proposal would not, therefore, apply to cases involving commercial information or the like. In this chapter, the ALRC intends ‘private’ information to mean information as to which a person in the position of the plaintiff has a reasonable expectation of privacy in all of the circumstances.