4.38 The Terms of Reference ask whether, in the event that the statutory action is enacted, any common law actions should be abolished. Such a provision may be unnecessary, depending on common law developments at the time of enactment. However, such a provision would create certainty.
4.39 There is no case for abolishing the equitable action for breach of confidence in its entirety, as it protects ‘confidential’ information whether or not it is also private in nature.
4.40 The NSWLRC recommended the enactment of the following provision:
To the extent that the general law recognises a specific tort for the invasion or violation of a person’s privacy, that tort is abolished.
4.41 To capture possible tort and equitable developments at common law, the Act might provide that to the extent that the general law recognises a specific cause of action for the invasion of a person’s privacy, that cause of action is abolished.