Proposal 7–2 The plaintiff should not be required to prove actual damage to have an action under the new tort.
7.36 The new tort should not require the plaintiff to prove—as an element of the tort, rather than for the purpose of awarding compensation—that he or she suffered actual damage.
7.37 The plaintiff having proved that he or she had a reasonable expectation of privacy, that the invasion of privacy was intentional or recklessly committed by the defendant and that it was serious, and the court having been satisfied that there was no countervailing interest justifying the defendant’s conduct, should not then be required to prove actual damage. As discussed above, a bar must be set in part to ensure that trivial actions are not brought, but this has already been done by the earlier requirements.
7.38 In this respect, the privacy tort would be similar to other analogous intentional torts such as trespass to the person and trespass to land. In a sense, the wrong itself is the harm. The issue is then what remedy should flow from it. Some stakeholders advocated this approach to make the new privacy tort consistent with ‘comparable interests such as defamation or trespass to the person’. Defamation, while sometimes described as actionable per se, is however different in that damage to reputation is presumed to follow the defamatory publication. There would be no presumption of damage in the new tort.
7.39 In Tugendhat and Christie: The Law of Privacy and the Media, the authors state that because one of the principal aims of the torts of battery, assault and false imprisonment is to ‘vindicate the indignity inherent in unwanted touching, threatening, and confinement, they are actionable per se. Harm to the plaintiff is assumed.’ The authors go on to state that, if
one of the principal aims of the protection of privacy is the preservation of dignity, then consistency with trespass to the person might suggest that breaches of a reasonable expectation of privacy should also be actionable per se.
7.40 In practice, serious invasions of privacy will usually cause emotional distress to the plaintiff. Emotional distress is not generally recognised by the common law as ‘actual damage’, which rather refers to personal injury, property damage, financial loss, or a recognised psychiatric illness. As a number of stakeholders submitted, the damage often caused by invasions of privacy—such as distress, humiliation and insult—may be intangible and difficult to prove. PIAC submitted that a person’s ‘dignity is vitally important but its intrinsic nature makes it difficult to quantify in monetary terms the impact of any damage to it’. Many stakeholders submitted that the action should not require proof of damage.
7.41 The ALRC agrees that invasions of privacy may often cause ‘only’ emotional distress. If proof of actual damage as recognised by the common law were required, this would deny redress to some victims of serious invasions of privacy, and significantly undermine the value and purpose of introducing the new tort. If the goal then is to allow plaintiffs to recover damages for emotional distress, the issue is how best should the law achieve this.
7.42 One option would be to require proof of damage but define damage for the purposes of the action as including emotional distress. This would be consistent with s 52(1) of the Privacy Act 1988 (Cth). This section provides that the loss or damage resulting from an interference with the privacy of an individual, as to which the Privacy Commissioner may make a determination of an entitlement to compensation or other remedy, includes injury to the complainant’s feelings and humiliation suffered by the complainant.
7.43 However this approach would be inconsistent with both the well-established common law definition of actual damage and with the civil liability legislation in most states and territories (dealing with negligently inflicted mental harm). The ALRC considers that the preferable approach is to make the new tort actionable per se. The threshold of seriousness will bar trivial or minor claims, and it will be rare that a plaintiff will suffer no distress from a serious invasion of privacy. In practice, if no emotional distress or actual damage has been suffered by a plaintiff, there would only be an award of damages if the circumstances of the invasion were such that there was a strong need for vindicatory damages.
7.44 Some stakeholders also argued that invasions of privacy were ‘abhorrent’ and that it was important that the cause of action ‘establish a clear deterrent’.  Others submitted that requiring proof of damage would burden or deter potential litigants.
7.45 However, a number of stakeholders insisted that damage should need to be proved. If proof of damage is not required, these stakeholders argued, there will be a proliferation of claims, many without merit, and this may lead to significant extra costs to industry. For example, the Australian Subscription Television and Radio Association (ASTRA) submitted that not requiring proof of damage may ‘encourage serial litigants and dubious proceedings’. The Arts Law Centre of Australia also submitted that if the new tort were actionable per se, the arts and media industries would bear much of the cost of ‘determining these potentially unfounded or unmeritorious claims’. However, as set out above, the significant other elements of the cause of action should ensure that frivolous and unmeritorious claims are not made or successful— the action would only be available for ‘serious’, unjustified, invasions of privacy and only where the defendant intended to or recklessly invades the plaintiff’s privacy.
7.46 The ALRC previously recommended that plaintiffs should not be required to prove damage. The ALRC’s proposal is also consistent with Canadian statutory causes of action. It also appears that there is no requirement to prove damage in claims for disclosure of personal information under UK law, which is consistent with equitable claims for breach of an obligation of confidence. In practice this issue is not significant as most, if not all, privacy claims in the UK have been either for an injunction to prevent an invasive publication or for damages for emotional distress.
N Witzleb, Submission 29.
On trespass, see RP Balkin and JLR Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013) 40. Section 7(2) of the Defamation Act 2005 (NSW) provides that the ‘publication of defamatory matter of any kind is actionable without proof of special damage’: Defamation Act 2005 (NSW) s 7(2). Note, however, that there is a defence to defamation of triviality.
M Warby et al, Tugendhat and Christie: The Law of Privacy and The Media (OUP Oxford, 2011) [8.48].
N Witzleb, Submission 29; Law Institute of Victoria, Submission 22; NSW Council for Civil Liberties, Submission No 62 to DPM&C Issues Paper, 2011; Public Interest Advocacy Centre, Submission No 59 to DPM&C Issues Paper, 2011.
Public Interest Advocacy Centre, Submission 30.
Office of the Australian Information Commissioner, Submission 66; NSW Young Lawyers, Submission 58; Women’s Legal Services NSW, Submission 57; Queensland Council of Civil Liberties, Submission 51; ABC, Submission 46; Australian Privacy Foundation, Submission 39; Electronic Frontiers Australia, Submission 44; Public Interest Advocacy Centre, Submission 30; N Witzleb, Submission 29; B Arnold, Submission 28; Law Institute of Victoria, Submission 22; I Pieper, Submission 6; I Turnbull, Submission 5.
Eg Civil Liability Act 2002 (NSW) s 31.
B Arnold, Submission 28.
Australian Subscription Television and Radio Association, Submission 47; Telstra, Submission 45; Arts Law Centre of Australia, Submission 43; Optus, Submission 41; Australian Bankers’ Association, Submission 27; Office of the Information Commissioner, Queensland, Submission 20; Insurance Council of Australia, Submission 15; D Butler, Submission 10.
Telstra, Submission 45; Arts Law Centre of Australia, Submission 43; Insurance Council of Australia, Submission 15; Office of the Victorian Privacy Commissioner, Submission No 46 to DPM&C Issues Paper, 2011 4688; SBS, Submission No 8 to DPM&C Issues Paper, 2011; Australian Direct Marketing Association, Submission No 57 to DPM&C Issues Paper, 2011.
Australian Subscription Television and Radio Association, Submission 47.
Arts Law Centre of Australia, Submission 43.
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No 108 (2008) Rec 74–3.
In British Columbia, for example, ‘[i]t is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another’: Privacy Act, RSBC 1996, c 373 s 1(1). See also Privacy Act, RSS 1978, c P-24 s 2; Privacy Act, CCSM 1996, c P125 (Manitoba) s 2(2); Privacy Act, RSNL 1990, c P-22 s 3(1).