Proposal 7–1 Fourth element of action: The new Act should provide that the new cause of action is only available where the court considers that the invasion of privacy was ‘serious’. The new Act should also provide that in determining whether the invasion of privacy was serious, a court may consider, among other things, whether the invasion of privacy was likely to be highly offensive, distressing or harmful to a person of ordinary sensibilities in the position of the plaintiff.

The need for a threshold

7.6 Some invasions of privacy should not be actionable because they are not sufficiently serious. The ALRC proposes that the new Act provide for a threshold test of seriousness that would ensure that trivial and other non-serious breaches of privacy are not actionable. The threshold the ALRC proposes is that the defendant’s conduct is ‘serious’, having regard to whether it would be likely to be highly offensive, distressing or harmful to a person of ordinary sensibilities in the position of the plaintiff.

7.7 Some threshold is arguably required by the ALRC’s Terms of Reference, which ask the ALRC to design a cause of action for serious—not all—invasions of privacy.

7.8 Many privacy advocates argue that there should not be an additional threshold, and that invasions of privacy should be actionable whether or not the invasion is serious. If a person has a ‘reasonable expectation of privacy’ then, subject to public interest matters, some argue that the person should have an action.[1]

7.9 The NSWLRC considered that there should be no additional threshold beyond the reasonable expectation of privacy test. The nature and offensiveness of the relevant conduct were instead matters to be taken into account when determining whether an actionable invasion of privacy had occurred.[2] There is also no threshold for seriousness in the statutes of the four Canadian provinces which have a statutory cause of action for invasions of privacy.[3]

7.10 However, the ALRC considers that a threshold is a useful way to prevent people from bringing actions for non-serious invasions of privacy. The risk of non-serious actions or a proliferation of claims was raised by a number of stakeholders.[4] It is also the ALRC’s view that a threshold would avoid an undue imposition on competing interests such as freedom of speech.

What should the threshold be?

7.11 If there is a threshold, where should the threshold be set, and how? One option, favoured by the ALRC, would be to set the threshold at ‘serious’ invasions of privacy, and invite the courts to consider a number of matters when determining whether the invasion was serious. This is a flexible option, giving the court considerable discretion. This option was favoured by the Law Institute of Victoria.

7.12 To give the courts appropriate discretion, the word ‘serious’ should not be defined in the new Act. However, the new Act should provide some guidance on its meaning. The word ‘serious’ is not a particularly precise term, and may even be interpreted to mean ‘not trivial’. The ALRC considers that the threshold for this cause of action should be set higher than ‘not trivial’.

7.13 Rather than define ‘serious’, the ALRC proposes that the new Act set out a number of factors for the court to consider when determining whether the invasion of privacy was serious. The court should consider whether the invasion was likely to be highly offensive, distressing, or harmful to a person of ordinary sensibilities in the position of the accused.

7.14 The Law Institute of Victoria suggested other factors a court may take into account when determining seriousness: the nature of the breach; the consequences of the invasion for an individual; and the extent of the invasion in terms of the numbers of individuals affected.[5] The ALRC agrees that these factors might also be relevant, but prefers the more general factors proposed above.

Objective test

7.15 The test of seriousness proposed here is an objective test. It is not about whether the plaintiff considered the invasion of privacy was serious, or about whether the effect of the invasion on the plaintiff was in fact serious.[6] Rather, it is about whether the court views the invasion as serious. One way to measure this is to ask whether the invasion of privacy was likely to have a serious effect on a person of ordinary sensibilities in the position of the plaintiff.

7.16 In this context, the ALRC suggests that ‘likely’ does not mean ‘probable’, that is, more likely than not. Rather, ‘likely’ means ‘a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case’.[7]

7.17 The likely effect of the conduct should also be distinguished from the actual effect of the conduct. Whether the cause of action should require proof of damage is a related question, discussed separately below.

Subjective element

7.18 Although usually the test of seriousness will be an objective one, in some cases, the fact that the defendant knew that the particular plaintiff was likely to be highly offended, distressed or harmed by the invasion of privacy, will also be a factor to be considered. In such circumstances, the invasion may be adjudged to be serious, even if a person of ordinary sensibilities might not have been likely to suffer such offence, distress or harm.

7.19 Section 32 of the Civil Liability Act 2002 (NSW) provides:

(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

7.20 The statutory cause of action for serious invasion of privacy should contain a provision similar to subsection 32(4) of the Civil Liability Act 2002 (NSW). This provision would also be relevant to the question of the reasonable expectation of the plaintiff in their particular circumstances.

In the position of the plaintiff

7.21 It is important to ask whether the conduct was likely to highly offend, distress or harm a person in the position of the plaintiff. In some cases, particular attributes or circumstances of the plaintiff will mean that an invasion of their privacy will be more offensive, distressing or harmful than it might have been to another person.

7.22 In discussing whether the plaintiff had a reasonable expectation of privacy, Lord Hope, in Campbell v MGN, said that

it is unrealistic to look through the eyes of a reasonable person of ordinary sensibilities at the degree of confidentiality that is to be attached to a therapy for drug addiction without relating this objective test to the particular circumstances.[8]

7.23 Lord Hope later went on to say that the Court of Appeal erred

when they were asking themselves whether the disclosure would have offended the reasonable man of ordinary susceptibilities. The mind that they examined was the mind of the reader…This is wrong. It greatly reduces the level of protection that is afforded to the right of privacy. The mind that has to be examined is that, not of the reader in general, but of the person who is affected by the publicity. The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.[9]

7.24 Although this was said in the context of whether the plaintiff in Campbell had a reasonable expectation of privacy, the ALRC considers that the same reasoning should apply to the question of whether the invasion of privacy was serious. The two tests overlap, but it is clear that when applying each test, both of which are objective, it is important to consider a person in the position of the plaintiff.

Offence, distress or harm

7.25 A high likelihood or degree of offence, distress or harm is not the only indicator of the seriousness of an invasion of privacy, but it seems to be the most common.

7.26 The ALRC in 2008 and the Victorian Law Reform Commission (VLRC) in 2010 recommended that a plaintiff be required to show that the act or conduct complained of was highly offensive to a reasonable person of ordinary sensibilities.[10] The ‘highly offensive’ test was supported by some stakeholders.[11] A ‘highly offensive’ threshold is also favoured in New Zealand.[12]

7.27 Some stakeholders to this Inquiry submitted that whether the conduct was offensive is not the right test, because offence concerns emotional insult or distress, whereas the action for invasion of privacy should be concerned with affront to dignity. Offence is directed at moral outrage or wounded feeling, but seriousness should be measured by the extent of the invasion or the harm done.[13]

7.28 The ALRC is of the view that a high degree of offence is one factor to consider when assessing the seriousness of an invasion of privacy. The level of distress and harm likely to be caused by the invasion are also suitable matters to consider.[14]

7.29 Some invasions of privacy will be ‘serious’, despite the fact that they did not—and were not likely—to cause serious offence, distress or harm to the plaintiff. The dignitary interests of a person may be seriously infringed without the person’s knowledge. For example, it may in some circumstances be a serious invasion of privacy to take or publish a photo of a person who is in a coma or a state of dementia, despite the fact that a person in such a state is unlikely to be offended, distressed or harmed by the incident or the publication. Such invasions of privacy may be serious, even though harm to the plaintiff was unlikely or minimal.

7.30 The Privacy Act 1988 (Cth) provides for civil penalties in cases of ‘serious’ or ‘repeated’ interferences with privacy.[15] However, the Act does not define ‘serious’; the ordinary meaning of the word applies.

7.31 A seriousness threshold is also recognised in the UK. Toulson and Phipps write that unauthorised ‘disclosure or use of information about a person’s private life will be a violation of Art 8 only if …it is sufficiently serious to cause substantial offence to a person of ordinary sensibilities’.[16] However, this may be a low bar, intended mainly to exclude only limited or trivial disclosures. Lord Neuberger MR in Ambrosiadou v Coward, said that

Just because information relates to a person’s family and private life, it will not automatically be protected by the courts: for instance, the information may be of slight significance, generally expressed, or anodyne in nature. While respect for family and private life is of fundamental importance, it seems to me that the courts should, in the absence of special facts, generally expect people to adopt a reasonably robust and realistic approach to living in the 21st century.[17]

7.32 In relation to actionability for defamation, ‘substantially’ has been described by Tugendhat J as the lowest threshold of seriousness.[18] The ALRC proposes that the serious threshold be set higher than this.

Highly, seriously or substantially?

7.33 The ALRC proposes that an invasion of privacy should generally not be considered serious if it were only likely to cause less substantial offence, distress or harm. The relevant consideration proposed is whether the invasion of privacy was likely to be highly offensive, distressing or harmful.

7.34 Some stakeholders may argue that this may make the cause of action largely unattainable. Possible alternatives include that the invasion ‘caused substantial offence’,[19] or was ‘sufficiently serious to cause substantial offence’[20] to a reasonable person of ordinary sensibilities.

7.35 However, the ALRC considers these alternatives might set the bar too low. Less serious invasions of privacy may be morally blameworthy, but the ALRC proposes that a higher bar be set for the purpose of imposing liability under the new tort.