Proposal 9–4 A person should not be able to bring an action under the new tort after either (a) one year from the date on which the plaintiff became aware of the invasion of privacy, or (b) three years from the date on which the invasion of privacy occurred, whichever comes earlier. In exceptional circumstances the court may extend the limitation period for an appropriate period, expiring no later than three years from the date when the invasion occurred.
9.52 The ALRC proposes a primary limitation period of one year from the date a plaintiff became aware of the invasion, with the discretion for a court to extend this period to up to three years from the date the invasion occurred.
9.53 Previous law reform inquiries have diverged on this issue. The NSWLRC proposed a one year limitation period, in line with actions in defamation. In contrast, the VLRC proposed a three year limitation period, consistent with actions for personal injury.
Ensure fairness and certainty to both parties to a proceeding
9.54 A one year limitation period will assist in providing fairness to both parties to a proceeding and encourage the proper and timely administration of justice. A relatively short limitation period will balance the interests of both parties to a proceeding, providing adequate time for a plaintiff to appreciate and manage the emotional and financial repercussions of a serious invasion of privacy, while also providing certainty and a timely opportunity to defend proceedings to defendants.
9.55 It would be burdensome on defendants if the existence of a longer limitation period led to uncertainty and anxiety as to whether they are likely to be sued. Preparing a defence case and calculating the likely cost of litigation and possible remedies may be more challenging the longer a plaintiff takes to initiate proceedings.
9.56 Some stakeholders have raised the concern that extending a limitation period beyond one year may encourage plaintiffs to delay bringing an action. The Australian Subscription Television and Radio Association (ASTRA) argued that a plaintiff may be motivated to delay an action in order to exacerbate the damage caused by the invasion with a view to increasing a possible award of damages. There is a legitimate policy rationale in designing law in a way that encourages plaintiffs to act reasonably quickly to initiate proceedings. This approach is also in the interests of plaintiffs who should seek to reduce the possibility of escalating or exacerbating an invasion of privacy by bringing an action as quickly as possible.
9.57 The ALRC considers a primary one year limitation period best balances the interests of plaintiffs (in being afforded sufficient time after discovering a breach to investigate and organise their claim) with the interests of defendants (in being able to arrange their affairs knowing that claims will not be brought against them after a particular period of time).
Consistency with comparable causes of action
9.58 This proposal is consistent with the one-year limitation period prescribed for actions in defamation. Consistency with the position in defamation law may avoid the risk that plaintiffs will forum-shop between comparable actions. A one year limitation period is also consistent with the limitation period for defamation actions in the UK.
9.59 The rationale for one year limitation periods in defamation is applicable to privacy actions. Defamation actions are based on damage to a person’s reputation, a harm which is complete on publication. Arguably, the act of publication should be apparent to a litigant in defamation actions as the media has a significant and visible presence in contemporary life. The same logic can be applied to privacy actions, as a serious invasion of privacy is likely to be more apparent than in other civil causes of action. This is particularly compelling given the high threshold for actionability where a plaintiff must demonstrate a serious invasion of privacy. It is probable that a serious invasion of privacy will be immediately evident to a plaintiff. A short limitation period would not therefore hinder a plaintiff’s capacity to commence proceedings.
9.60 In contrast to actions in defamation, actions in personal injury, which generally have a longer limitation period of three years, are based on injury to the individual which may take longer to eventuate.
9.61 This proposal is also consistent with the limitation periods in the Privacy Act with respect to when the OAIC can hear complaints. A complaint of privacy interference by an APP entity can be made within 12 months from the date the applicant becomes aware of the relevant act or conduct. The OAIC then has discretion as to whether or not to investigate a complaint of privacy interference made after this date. The OAIC supports the application of a similar limitation period to a statutory cause of action for serious invasion of privacy.
9.62 Several stakeholders suggested that a longer time period, closer to the three year limitation period for personal injury actions, would be more appropriate. These stakeholders suggested that an individual whose privacy has been seriously invaded may be too distressed to consider legal avenues for redress within a one year period. The ALRC considers this to be an important consideration to be taken into account by a court when considering whether an extension on the limitation period is reasonable in all the circumstances.
Commencement of limitation period
9.63 The ALRC considers the limitation period should start when the complainant becomes aware of the invasion of privacy. The OAIC submitted that applicants may be unaware they have experienced a serious invasion of privacy for some period after the event, due to advances in communication and surveillance technology. These developments in technology mean that plaintiffs may not be immediately aware of the disclosure of their private information on the internet, or the use of covert and unlawful surveillance devices to monitor their private activities.
9.64 SBS argued that the limitation period should commence from the date of disclosure or publication of the private information. As previously outlined, this is in keeping with defamation law. Publication of an individual’s private information in the mainstream media will, necessarily, be relatively obvious to a plaintiff. However, the ALRC considers it would be unfair to restrict individuals from pursuing a civil claim in privacy in circumstances where the invasion is less obvious, but still serious.
9.65 It is important to consider the interaction of the limitation period with other elements of the cause of action. The ALRC proposed that the tort for serious invasion of privacy should be actionable per se. Commencing the limitation period from the date when the plaintiff became aware of the invasion will not conflict with this element of the cause of action as a plaintiff will not have to demonstrate harm or damage suffered at a particular time.
Extension of limitation period
9.66 The ALRC’s proposal provides a court with the discretion to extend a limitation period where there are reasonable circumstances for a plaintiff’s delay in initiating proceedings. This proposal provides a degree of flexibility to courts and parties to a proceeding, ensuring protection for plaintiffs and allowing for the fair and timely resolution of meritorious claims.
9.67 This proposal is in keeping with the recommendations of the NSWLRC. It is also consistent with defamation law which provides that a court may allow an extension of up to three years from the date of publication of the defamatory matter, ‘if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication’.
9.68 This position is also consistent with the UK’s approach to defamation actions. Under the Limitation Act 1980 (UK), a UK court may extend limitation periods where it would be ‘prejudicial’ to a plaintiff and/or to a defendant to restrict the period to one year. In making an order for an extension of time, a court must have regard to all the circumstances of the case and in particular to the length of the delay and the reasons for the delay. The ALRC considers this a useful model for Australian courts.
9.69 There is precedent at common law and statute in Australian jurisdictions for courts to grant extensions on limitation periods. The factors a court may consider in granting an extension include: whether the justice of the case requires that the application be granted; whether a fair trial is possible by reason of the time that has elapsed since the events giving rise to the cause of action; the length of delay and any explanation for it are relevant considerations; and whether a respondent is prima facie prejudiced by being deprived of the protection of the limitation period.
Several stakeholders supported this proposal: SBS, Submission 59; Australian Subscription Television and Radio Association, Submission 47; ABC, Submission 46; Arts Law Centre of Australia, Submission 43; Optus, Submission 41; T Gardner, Submission 3.
NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) Para. 9.1.
Victorian Law Reform Commission, Surveillance in Public Places, Report No 2010) Para. 7.248; ALRC, For Your Information: Australian Privacy Law and Practice, Report No 108 (2008).
Australian Subscription Television and Radio Association, Submission 47; Arts Law Centre of Australia, Submission 43.
Australian Subscription Television and Radio Association, Submission 47.
See, eg, Limitation Act 1969 (NSW) s 14B.
Limitation Act 1980 (UK) s 4A.
Privacy Act 1988 (Cth) s 41(1)(c).
Office of the Australian Information Commissioner, Submission 66.
See, eg, Limitation Act 1969 (NSW) s 18A.
Law Institute of Victoria, Submission 22; Law Reform Commission of Hong Kong, Civil Liability for Invasion of Privacy, (2004) Rec 28.
N Witzleb, Submission 29.
Office of the Australian Information Commissioner, Submission 66.
SBS, Submission 59.
NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) [9.1].
Limitation Act 1969 (NSW) s 56A; Defamation Act 2005 (SA) s 56A.
Limitation Act 1980 (UK) s 32A.
Ibid s 32A(2).
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.