Proposal 8–1 Fifth element of action: The new Act should provide that the plaintiff only has a cause of action for serious invasion of privacy where the court is satisfied that the plaintiff’s interest in privacy outweighs the defendant’s interest in freedom of expression and any broader public interest. A separate public interest defence would therefore not be needed.
8.5 As set out in Chapter 2, privacy is an important public interest, but of course it is not the only public interest. Sometimes, other interests should prevail over a person’s interest in privacy. It is particularly important to give proper weight to competing public interests, given that Australia does not have a statutory human rights framework or express constitutional protection of freedom of speech. Without a clear process for balancing competing interests, the new action might privilege privacy over other important interests.
8.6 Two related categories of interest are likely to compete with the plaintiff’s privacy: the defendant’s interest in free expression and the broader public interest.
8.7 It is widely accepted that the public interest must be considered at some stage in an action for breach of privacy. What this public interest is, and how it should be considered, is discussed below. However, it is also important to note that people have a personal interest in free expression, and that this is not always less important than other people’s interest in privacy. Toulson and Phipps wrote:
Freedom of expression includes the right of people not only to express their own views but to talk about their own experiences (regardless of any general public interest), provided that it does not involve breaking a trust or confidence.
8.8 The interest in free expression is a personal interest, as well as a public interest. It may have value independent of any benefit the public might have in hearing the speech. For example, a person speaking on television about their experience of being raised as an adopted child may breach the privacy of his or her parents. In such a case, it is not clear that the privacy interests of the parents necessarily outweigh the interests of the child in speaking freely about his or her life.
8.9 The ALRC proposes that these competing interests be considered as part of a balancing exercise, when determining whether the plaintiff has a cause of action. The defendant’s interest in freedom of expression and the broader public interest would therefore be considered at an early stage in a cause of action. Where the court considers that these interests outweigh the plaintiff’s interest in privacy, the cause of action will fail.
8.10 In contrast, having a public interest as a defence would prolong the length of time an unmeritorious claim is heard. Some stakeholders noted the advantage of courts hearing the public interest issues early in proceedings. The Australian Subscription Television and Radio Association (ASTRA) submitted:
having public interest go towards a defence is likely to prolong the length of time during which an unmeritorious claim is heard.
8.11 Further, leaving public interest to be dealt with as a defence would give rise to the risk that a plaintiff could more easily use the court proceedings to stifle legitimate exposure of matters of public concern on the basis that they had a prima facie case of invasion of privacy without any consideration of the public interest at that point.
8.12 This was the approach recommended by the ALRC in 2008 and is similar to the approach recommended by the NSWLRC in 2009.
8.13 A similar balancing exercise is carried out in the UK, where rights to privacy and to freedom of expression, in Arts 8 and 10 of the European Convention on Human Rights, have been incorporated into domestic law by the Human Rights Act 1998 (UK). Both must be considered when determining whether a cause of action for misuse of private information has been established. In making this determination, two questions are asked:
First, is the information private in the sense that it is in principle protected by article 8? If “no”, that is the end of the case. If “yes”, the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10?
8.14 Toulson and Phipps wrote that in Re S, Lord Steyn ‘reiterated that neither Art 8 nor Art 10 as such has priority over the other’:
When both are engaged, ‘an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary’. The justifications for interfering with each right must be taken into account and an ultimate balancing exercise carried out.
8.15 The balancing exercise proposed by the ALRC above is also similar to the UK approach. However, the ALRC considers that, rather than focus only on freedom of expression, a range of public interests should be considered when carrying out this balancing exercise. As proposed below, examples of these many public interests should be set out in the new Act. No one interest should have automatic priority over the privacy interest of the plaintiff.
‘An individual’s interest in not having information about his private life published has to be set against the freedoms of others, particularly the right to freedom of expression under Art. 10, and the interests of the general public’: RG Toulson and CM Phipps, Confidentiality (Sweet & Maxwell, 2012) [7–045].
Although of course it will also not necessarily be the case that the freedom of a person to tell his or her own story will necessarily outweigh the plaintiff’s privacy interest. See McKennitt v Ash  QB 73.
Australian Subscription Television and Radio Association, Submission 47.
ALRC, For Your Information: Australian Privacy Law and Practice, Report No 108 (2008) Rec 74–2; NSW Law Reform Commission, Invasion of Privacy, Report No 120 (2009) 26–29.
McKennitt v Ash  QB 73, .
Toulson and Phipps, above n 1, [7–062], quoting Re S (a child) (2005) 1 AC 593,  (Lord Steyn).