A cause of action for two types of invasion of privacy

Recommendation 5–1 The Act should provide that the plaintiff must prove that his or her privacy was invaded in one of the following ways:

(a) intrusion upon seclusion, such as by physically intruding into the plaintiff’s private space or by watching, listening to or recording the plaintiff’s private activities or private affairs; or

(b) misuse of private information, such as by collecting or disclosing private information about the plaintiff.

5.9 Unwanted access to private information and unwanted access to one’s body or personal space have been called the ‘two core components of the right to privacy’.[1] Most examples of invasions of privacy given to support the introduction of a new cause of action, and most cases outside Australia relating to invasions of privacy, relate either to an intrusion upon seclusion or a misuse of private information.

5.10 To provide clarity, certainty and guidance about the purpose and scope of the new action, the ALRC recommends that the action be explicitly confined to these two types of invasion of privacy.[2] This means that invasions of privacy that do not fall into one of these two categories will not be actionable under the new tort.[3] This should help address the common concern among some stakeholders that a new tort might be uncertain.[4]

5.11 The two categories of invasion of privacy recommended above draw on the well-known categorisation of privacy torts in the United States (US), first set out by William Prosser in 1960, and followed in the US Restatement of the Law (Second) of Torts.[5] Prosser wrote that the law of privacy

comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff, in the phrase coined by Judge Cooley, ‘to be let alone’. Without any attempt to exact definition, these four torts may be described as follows:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.[6]

5.12 Prosser’s taxonomy focused on tort law, but there are other more general privacy taxonomies. US scholar Daniel Solove looked more broadly at ‘the different kinds of activities that impinge upon privacy’ and discovered ‘four basic groups of harmful activities’, each of which ‘consists of different related subgroups of harmful activities’:

(1) Information collection: surveillance, interrogation;

(2) Information processing: aggregation, identification, insecurity, secondary use, exclusion;

(3) Information dissemination: breach of confidentiality, disclosure, exposure, increased accessibility, blackmail, appropriation, distortion;

(4) Invasion: intrusion, decisional interference.[7]

5.13 Solove’s taxonomy highlights that many harmful activities may be characterised as invasions of privacy. A general legal action for invasion of privacy would therefore seem to be too broad and imprecise.[8] Gleeson CJ said in ABC v Lenah Game Meats that ‘the lack of precision of the concept of privacy is a reason for caution in declaring a new tort of the kind for which the respondent contends’.[9]

5.14 Dr Nicole Moreham has identified two ‘overarching categories’ covering six different ways of breaching privacy.[10] The first overarching category is unwanted watching, listening, recording and disseminating of recordings—namely, intrusion. The second is obtaining, keeping and disseminating private information—which ‘have at their heart the misuse of private information’.[11]

5.15 The ALRC recommends that, in Australia, a new privacy tort should be confined to two broad categories of invasion of privacy, similar to the first two of Prosser’s four categories and similar to Moreham’s two overarching categories: (1) intrusion upon seclusion; and (2) misuse of private information. In ABC v Lenah Game Meats Pty Ltd, Gummow and Hayne JJ said that ‘the disclosure of private facts and unreasonable intrusion upon seclusion, perhaps come closest to reflecting a concern for privacy “as a legal principle drawn from the fundamental value of personal autonomy”’.[12] These two types of invasion of privacy are discussed further below.

5.16 It should be noted that this element of the tort cannot be satisfied without considering the second element of the tort, recommended in Chapter 6: whether a person in the position of the plaintiff would have a reasonable expectation of privacy, in all of the circumstances. The two elements will need to be considered together. In determining whether this element is satisfied, courts will usually consider whether there has been an intrusion into the private space, private activities or private affairs of the plaintiff, or a misuse of private information. The question of what is private in a particular case should be determined by asking whether a person in the position of the plaintiff would have had a reasonable expectation of privacy.

[1] M Warby et al, Tugendhat and Christie: The Law of Privacy and The Media (OUP Oxford, 2011) [2.07], cited with approval in Goodwin v NGN [2011] EWHC 1437 (QB) (09 June 2011) [85]. See also Michael Tilbury, ‘Coherence, Non-Pecuniary Loss and the Construction of Privacy’ in Jeffrey Berryman and Rick Bigwood (eds), The Law of Remedies: New Directions in the Common Law (Irwin Law, 2010) 127.

[2] This is similar to the approach recommended by the Victorian Law Reform Commission (VLRC). As discussed further below, the VLRC recommended two separate causes of action, though with very similar elements: one for intrusion upon seclusion and the other for misuse of private information.

[3] As discussed below, such conduct may be actionable under other causes of action, such as defamation.

[4] That privacy laws should be clear and certain is one of the ALRC’s guiding principles: see Ch 3.

[5] American Law Institute, Restatement of the Law Second, Torts (1977) § 652A. Professor Prosser was one of the reporters.

[6] William L Prosser, ‘Privacy’ (1960) 48 California Law Review 383, 389.

[7] Daniel J Solove, ‘A Taxonomy of Privacy’ (2006) 154 University of Pennsylvania Law Review 477.

[8] This is discussed later in this chapter.

[9] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [41].

[10] Nicole Moreham, ‘Beyond Information: The Protection of Physical Privacy in English Law’ (2014) 73(2) Cambridge Law Journal (forthcoming).

[11] Ibid.

[12] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 251 (Gummow and Hayne JJ), quoting Sedley LJ in Douglas v Hello! [2001] 2 WLR 992, 1025.