Proposal 4–2 The cause of action should be described in the new Act as an action in tort.
4.25 There are a number of reasons for the proposal that the new cause of action should be an action in tort.
4.26 First, and most importantly, describing the statutory cause of action as a tort action will provide certainty, and prevent disputes arising, about a number of ancillary issues that will inevitably arise. Courts frequently have to decide whether a particular statute gives rise to an action in tort for the purposes of determining whether other consequences follow at common law or under other statutes. This will also be the case if a new statutory cause of action is enacted. For example:
At common law, an employer is vicariously liable where an employee has injured a third party by a tort committed in the course of employment. It may be relevant to decide whether an employer is vicariously liable to the claimant, in addition to an employee, where the employee is liable under the statutory cause of action.
At common law, the applicable law for intra-Australian and international torts depends on the place where the tort was committed.
Many legislative provisions refer to liability in tort. For example, some Australian jurisdictions impose an obligation on an employer to indemnify an employee in respect of ‘liability incurred by the employee for the tort’ to a third party where the tort occurred in the course of employment. Statutory contribution rights may apply only to ‘tortfeasors’.
4.27 Describing the action as a tort action will thus avoid many consequential questions arising once primary liability is established. The cause of action will be more fully integrated into existing laws than if it were simply described as a cause of action. This will also avoid the need for numerous specific provisions dealing with these ancillary issues, adding undesirable length to the legislation.
4.28 Secondly, classifying a civil action for redress which leads to monetary compensation as a tort, is consistent with accepted legal classifications. Defining what is a tort precisely, exhaustively and exclusively is a surprisingly difficult task. Leading texts tend to answer the question in relatively general terms. Fleming’s The Law of Torts, for example, defines a tort as ‘an injury other than a breach of contract, which the law will redress with damages’, but then goes on that ‘this definition is far from informative’. Torts may be created by common law or statute.
4.29 Definitions of ‘tort’ often contain two key features. First, a tort is a civil (as opposed to a criminal) wrong, which the law redresses by an award of damages. Secondly, the wrong consists of a breach of an obligation, often in negative terms such as not to harm or interfere with the claimant, imposed by law (rather than by agreement). But neither of those factors is exclusive to tort law and neither is always borne out, as most texts go on to discuss.
4.30 Nevertheless, liability for conduct invading the privacy of another is analogous to, and will often co-exist with, other torts protecting people from interferences with fundamental rights. Situating the cause of action within tort law will allow the application of common law principles settled in analogous tort claims, particularly in relation to fault, defences and the award of damages and assessment of remedies, where these matters are not set out in the new Act. This will enhance the coherence and consistency of the law.
4.31 Thirdly, the nomenclature of tort is consistent with developments in comparable jurisdictions and would allow Australian courts to draw on analogous case law from other jurisdictions, thus reducing uncertainty and complexity. The four Canadian provinces which have enacted legislation for invasions of privacy describe the relevant conduct as ‘a tort’. The New Zealand courts have recognised new causes of action in tort to protect privacy. Developments in the United Kingdom derive from the extension of the equitable action for breach of confidence under the influence of the Human Rights Act 1998 (UK). However, the misuse of private information giving rise to the extended or new cause of action in the United Kingdom is increasingly referred to as a ‘tort’. While Australian courts may not be prepared to take the same leap in classification as may have occurred there, the legislature is not so constrained.
4.32 Fourthly, describing the action as a tort action will clarify and highlight the distinctions between the statutory cause of action for serious invasion of privacy and existing regulatory regimes, such as those under the Privacy Act 1988 (Cth) and the Broadcasting Services Act 1992 (Cth).
4.33 Fifthly, describing the statutory cause of action as a tort action will clearly differentiate it from the equitable and contractual actions for breach of confidence. These will continue to exist and develop to protect confidential information, against the contracting party or confidant and against a third party who has the requisite knowledge that the material is confidential. Lastly, there is no reason why the tort nomenclature should constrain the legislature from making specific provision for remedies not generally available in tort at common law, for example, ordering an apology or an account of profits; limiting remedies usually available in tort; or capping the amounts of certain types of damages.
4.34 In 2009, the New South Wales Law Reform Commission (NSWLRC) recommended against identifying the statutory cause of action as an action in tort, or leaving the courts to construe the action as one in tort. It gave two reasons. First, tort actions do not generally require courts to engage in the sort of overt balancing of interests involved in the statutory cause of action. However, in the ALRC’s view this point seems to overlook or downplay the balancing that is required in some existing tort actions. Tort actions in private nuisance frequently require the courts to balance the interests of the plaintiff with those of the defendant in their respective use of their land. Nuisance law famously rests on ‘a rule of give and take, live and let live’, according to the well-known aphorism of Baron Bramwell in Bamford v Turner in 1860. In Sedleigh Denfield v O’Callaghan, Lord Wright made a point that would be apt in many cases involving alleged invasions of privacy and the balancing of individuals’ rights:
A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society.
4.35 Secondly, the NSWLRC said that describing the cause of action as a tort would require the legislation to specify whether the cause of action requires fault on the defendant’s part. Further, if it did require fault, what kind of fault, and whether it requires proof of harm or is actionable per se. The NSWLRC considered that the issue of fault was ‘appropriately left to development in case law’ and that it was unnecessary to specify whether the action is maintainable only on proof of damage. The VLRC agreed with this approach, adding that ‘there is little to be gained—and many complex rules of law to be navigated—if any new cause of action is characterised as a tort’. Examples given were rules as to fault, damage, remedies and vicarious liability.
4.36 The ALRC considers that it is highly desirable, if not essential, that the legislator should determine whether or not the cause of action requires proof of a certain type of fault and harm. To leave such key elements of a statutory cause of action to be decided by the courts would be highly problematic. An absence of specificity would increase uncertainty as to the statute’s application. This has been a key concern of stakeholders in relation to previous proposals for a statutory cause of action. People need to have some guidance in advance as to when their activities might be judged to be an actionable invasion of privacy leading to civil liability. Similarly, potential claimants need guidance as to whether they could prove an actionable invasion of their privacy. The comments by the European Court of Human Rights in 1966 on the law of the United Kingdom in a different context are apposite:
The relevant national law must be formulated with sufficient precision to enable the persons concerned—if need be with appropriate legal advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.
4.37 If no element of fault is included, it would be open for a court to determine that strict liability was intended or imposed, as for example under ss 18 and 237 of the Australian Consumer Law. The ALRC considers that strict liability, or negligence based liability, would be oppressive or undesirable. Certainty is also desirable in relation to the issue of damage or actionability per se. Questions will undoubtedly arise as to other ancillary issues on liability. The ALRC proposes the integration of the statutory action into the existing legislative and common law framework of tort law. This approach is preferable to the establishment of an entirely separate legislative framework, or to leaving these issues open and therefore uncertain in key respects.
Commissioner of Police v Estate of John Edward Russell (2002) 55 NSWLR 232, – (Spigelman CJ); Hampic Pty Ltd v Adams  NSWCA 455 . See also Vidal-Hall v Google Inc  EWHC 13 (QB) (16 January 2014); cf Douglas v Hello! Ltd (No 3)  QB 125 .
Lewis Klar, ‘Vicarious Liability’ in Caroline Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) ch 19.
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491. It is not always an easy task to determine the place of the tort: M Davies, AS Bell and PLG Brereton, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 2010) 425.
Employees Liability Act 1991 (NSW) s 3; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 6(9)(c); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 22A.
See, for example, Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5.
However, as seen below, special provision is made with respect to the limitation period and defences. It may also be preferable to make specific provision for vicarious liability to avoid the kind of dispute that arose in New South Wales v Bryant  NSWCA 393 and Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reps 81-246, deriving in part from the conflicting views of Kitto J and Fullagar J in Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36 as to whether the employer is vicariously liable for the acts or the torts of an employee.
Prue Vines, ‘Introduction’ in Caroline Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 3.
KM Stanton et al, Statutory Torts (Sweet & Maxwell, 2003) 6: ‘Indeed, the only answer [to the question “What is a Tort?”] may be to say that a compensation right is of a tortious character if it is generally regarded as tortious … the phrasing of the statute is likely to play a large part in the classification of rights’.
Privacy Act, RSBC 1996, c 373 (British Columbia); Privacy Act, CCSM 1996, c P125 (Manitoba); Privacy Act, RSS 1978, c P-24 (Saskatchewan); Privacy Act, RSNL 1990, c P-22 (Newfoundland and Labrador).
Hosking v Runting (2005) 1 NZLR 1; C v Holland  3 NZLR 672 (24 August 2012).
Vidal-Hall v Google Inc  EWHC 13 (QB) (16 January 2014) –. Many commentators now use this nomenclature: eg, Richard Clayton and Hugh Tomlinson, ‘The Human Rights Act and Its Impact on the Law of Tort’ in TT Arvind and Jenny Steele (eds), Tort Law and the Legislature: Common Law, Statute, and the Dynamics of Change (Hart Publishing, 2012) 466–467. However, precisely when and how this change from an extended equitable action for breach of confidence to a tort of misuse of private information happened has not been pinpointed. Some judicial statements simply ignore the difference: eg, Lord Neuberger, MR, in Tchenguiz v Imerman (Rev 4)  EWCA Civ 908 : ‘following … Campbell, there is now a tort of misuse of private information: as Lord Phillips of Worth Matravers MR put it in Douglas v Hello! Ltd (No 3)  QB 125. Cf Coogan v News Group Newspapers Ltd  EWCA Civ 48;  2 WLR 848  where he said: ‘it is probably fair to say that the extent to which privacy is to be accommodated within the law of confidence as opposed to the law of tort is still in the process of being worked out.’ Possibly, such detail is of less concern to English courts than it would be to Australian courts, where a stricter approach to the classification of legal wrongs is evident: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Bofinger v Kingsway Group Ltd (2009) 239 CLR 269.
Attorney General v Guardian Newspapers Ltd (No 2) (1990) 1 AC 109; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 224–225; Vestergaard Frandsen A/S and Ors v Bestnet Europe Ltd and Ors  1 WLR 1556; AMI Australia Holdings Pty Ltd v John Fairfax Publications Pty Ltd  NSWSC 1395.
NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) [5.55].
Compare ‘Equitable principles are best developed by reference to what conscionable behaviour demands of the defendant not by “balancing” and then overriding those demands by reference to matters of social or political opinion’: Smith Kline and French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health  FCA 151  (Gummow J).
Bamford v Turner (1860) 3 B & S 62; 122 ER 25 –.
Sedleigh Denfield v O’Callaghan  AC 880, 903. See also, RP Balkin and JLR Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013) [14.19].
NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) [5.56]–[5.57].
Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010) 7.134.
Free TV, Submission 55; The Newspaper Works, Submission 50; Australian Subscription Television and Radio Association, Submission 47; Telstra, Submission 45; Australian Bankers’ Association, Submission 27.
Goodwin v United Kingdom (1996) 22 EHRR 123, 140. See David Eady, ‘Injunctions and the Protection of Privacy’ (2010) 29 Civil Justice Quarterly 411, 418.
Neither of which includes any fault requirements for liability: Competition and Consumer Act 2010 (Cth) sch 2.
This is the approach in, for example, the Australian Consumer Law, in respect of liability for misleading or deceptive conduct.