Proposal 6–1 Third element of action: The new tort should only be actionable where a person in the position of the plaintiff would have had a reasonable expectation of privacy, in all of the circumstances.
6.6 Whether a plaintiff has a reasonable expectation of privacy is a useful and widely adopted test of what is private, for the purpose of a civil cause of action for invasions of privacy. The ALRC proposes that, to have an action under the new tort, the plaintiff should be required to establish that a person in the plaintiff’s position would have had a reasonable expectation of privacy, in all of the circumstances.
6.7 This is preferable to attempting to define ‘privacy’ in the Act. It is notoriously difficult to define what is private and the courts have therefore developed a test rather than a definition. In ABC v Lenah Game Meats, Gleeson CJ said:
There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private.
6.8 The use of the ‘reasonable expectation’ test was supported by a number of stakeholders. It is flexible and adaptable to new circumstances. Matters which an individual or community may reasonably expect will remain private will change between cultures and over time. The Office of the Information Commissioner, Queensland, submitted that the reasonable expectation of privacy test ‘would reflect both community standards and provide sufficient flexibility for the modern range of social discourses’.
6.9 Similar tests have been recommended in reports of the ALRC, the NSWLRC and the VLRC. This test is also used in a number of other jurisdictions. It has been adopted in the UK, New Zealand, and several Canadian provinces. In Campbell v MGM, Lord Nicholls said that ‘the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy’.
6.10 The test proposed by the ALRC is an objective test. The court must consider whether it would be reasonable for a person in the position of the defendant to have expected privacy. The subjective expectation of the plaintiff may be a relevant consideration if that has been made manifest, but it is not the focus of the test, nor an essential element that must be satisfied.
6.11 A similar test is used in the US when considering possible violations of Fourth Amendment rights. In Katz v United States, Justice Harlan of the US Supreme Court said:
My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.
6.12 Some stakeholders opposed the use of a reasonable expectation test, with some saying that the test was too vague. However, courts are used to determining issues of reasonableness or even reasonable expectation in other contexts. There are notable benefits of using a test that has been used for some time in other jurisdictions: in applying the test, Australian courts will be able to draw on jurisprudence from the UK, New Zealand and the US.
6.13 In ABC v Lenah Game Meats, Gleeson CJ proposed a different test for what is private, where the information was not obviously private. He said that the ‘requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private’. Lord Nicholls in Campbell said this test should be used with care, for two reasons:
First, the ‘highly offensive’ phrase is suggestive of a stricter test of private information than a reasonable expectation of privacy. Second, the ‘highly offensive’ formulation can all too easily bring into account, when deciding whether the disclosed information was private, considerations which go more properly to issues of proportionality; for instance, the degree of intrusion into private life, and the extent to which publication was a matter of proper public concern. This could be a recipe for confusion.
6.14 Baroness Hale also preferred an objective reasonable expectation test, saying that it was ‘much simpler and clearer’ than an offensiveness test of privacy. Further, Baroness Hale said that it was apparent that Gleeson CJ did not intend for the ‘highly offensive’ test to be the only test,
… particularly in respect of information which is obviously private, including information about health, personal relationships or finance. It is also apparent that he was referring to the sensibilities of a reasonable person placed in the situation of the subject of the disclosure rather than to its recipient.
6.15 The ALRC considers that the offensiveness of a disclosure or intrusion may be one matter considered by a court in determining whether there is a reasonable expectation of privacy. However, as proposed further below, ‘offence’ may also be used to distinguish serious invasions of privacy from non-serious invasions of privacy.
6.16 Although there is a separate element of the tort, proposed further below, that explicitly confines the tort to ‘serious’ invasions of privacy, the ‘reasonable expectation of privacy’ test should also help ensure that non-serious privacy interests are not actionable under the tort.