Seriousness

Recommendation 8–1 The Act should provide that a plaintiff has an action under the new tort only where the invasion of privacy was ‘serious’, having regard, among other things, to:

(a) the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause to a person of ordinary sensibilities in the position of the plaintiff; and

(b) whether the defendant was motivated by malice or knew the invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff.

The need for a threshold

8.6 Some invasions of privacy should not be actionable, because they are not sufficiently serious. The ALRC recommends that the Act provide for a threshold test of seriousness that would ensure that trivial and other non-serious breaches of privacy are not actionable.

8.7 The Privacy Act 1988 (Cth) provides for civil penalties in cases of ‘serious’ or ‘repeated’ interferences with privacy.[1] A seriousness threshold is also recognised in the United Kingdom (UK). Hon. Justice Roger Toulson and Charles 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’.[2] 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.[3]

8.8 Some stakeholders submitted that there should not be an additional threshold.[4] If a person has a reasonable expectation of privacy then, subject to public interest matters, the person should have an action. It was also suggested that, where there is a reasonable expectation of privacy and no countervailing public interest, then an invasion would necessarily be serious, and therefore an additional threshold unnecessary.

8.9 The Australian Privacy Foundation submitted that an additional threshold for seriousness was ‘unnecessary and arbitrary’:

If the cause of action is structured as an intentional tort, as the cause of action appears to be, damage should be presumed. The remedy, whether in the form of injunctive relief, damages or other relief, will (or should) reflect the seriousness of the breach.[5]

8.10 Associate Professor Paul Wragg also had some concerns. Although he said the point should not be overstated, given that the risk would not to arise in obvious cases, there was a ‘danger of the seriousness standard being applied twice if not three times’:

first through the ‘reasonable expectation of privacy’ test where the UK standard (which already excludes non-serious intrusions) is taken as the benchmark; secondly, as a means of limiting interferences to those that not only satisfy the reasonable threshold standard but also may be said to be a serious breach of that standard (so as to be highly offensive, etc ) and thirdly (potentially) through the use of the balancing approach where the intrusion must not only be serious but also so serious as to outweigh everyone else’s rights (ie, the public interest at stake).[6]

8.11 The New South Wales Law Reform Commission also did not see the need for an additional threshold.[7] There is no threshold of seriousness in the statutes of the four Canadian provinces which have a statutory cause of action for invasion of privacy.[8]

8.12 Some stakeholders, however, submitted that there should be a discrete seriousness threshold.[9] Some suggested that there should be a threshold, but that it should be set at ‘highly offensive’ invasions of privacy, rather than merely ‘serious’ ones.[10] Others said that the threshold should be a high one, so that the new tort does not undermine freedom of expression and of the media.[11]

8.13 The ALRC has concluded that there should be an additional threshold of seriousness. In some circumstances, it will be obvious that the invasion of privacy was serious. In fact, the seriousness may well often be evident from the other elements of the offence. If a plaintiff has a reasonable expectation of privacy, and this privacy is intentionally invaded, then in some cases the facts leading to these conclusions will themselves strongly suggest the invasion of privacy was serious. However, an additional and discrete threshold of seriousness would provide an additional means of discouraging people from bringing actions for trivial invasions of privacy. The risk of non-serious actions or a proliferation of claims was raised by a number of stakeholders.[12]

8.14 For similar reasons, a serious harm test has been introduced to defamation law in the UK. The Defamation Act 2013 (UK) provides that a ‘statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant’.[13] This provision was intended to discourage trivial claims.[14]

8.15 The ALRC also considers that a discrete seriousness threshold, in addition to the public interest balancing test,[15] would further ensure the new tort does not unduly burden competing interests such as freedom of speech.

Serious

8.16 If there is a threshold, where should it be set? The ALRC recommends the Act provide that for the plaintiff to have an action, the court must consider the invasion of privacy ‘serious’.

8.17 ‘Serious’ can mean ‘not trifling’, ‘weighty or important’,[16] ‘important, demanding consideration, not to be trifled with, not slight’.[17] These definitions may be helpful, but the ALRC recommends that the Act provide specific guidance to courts on the meaning of serious. This guidance should be in the form of a few important factors for the court to consider, along with any other relevant factor, when determining whether an invasion of privacy was serious. These factors are discussed below.

8.18 This is an objective test. It is not about whether the plaintiff considered the invasion of privacy to be serious, or even whether the plaintiff has proved that they suffered serious damage from the invasion of privacy.[18] Rather, it is about whether the court views the invasion as serious.

Offence, distress and other privacy harms

8.19 The first and perhaps most important factor for a court to consider when determining whether an invasion of privacy was serious is the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause a person of ordinary sensibilities in the position of the plaintiff. This should be set out in the Act.

8.20 Although other harms may often be relevant, offence and distress are two common types of harm that commonly follow serious invasions of privacy.

8.21 Professor Kit Barker submitted that the essence of what is wrong about an invasion of privacy is ‘harm to the personal dignity of the plaintiff and/or the plaintiff’s autonomy in controlling elements of his or her private life’.[19] The ALRC agrees that these are important types of harm that should be considered by a court in determining whether a particular invasion of privacy was serious.

8.22 The privacy and dignitary interests of a person may be harmed without that person’s knowledge. For example, in some circumstances it may 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, or perhaps even of a young child, despite the fact that a person is unlikely to be offended or distressed by the incident or the publication. Such invasions of privacy may be serious, even though distress, offence or harm to the plaintiff may be unlikely. This is one reason why offence and distress are not the only harms that might make an invasion of privacy serious.[20]

Extent of harm

8.23 In the Discussion Paper, the ALRC proposed that courts consider whether the invasion of privacy was likely to be ‘highly’ offensive, distressing or harmful.[21] This may have suggested that if it were not highly offensive, highly distressing or highly harmful, it could not be serious. As a number of stakeholders pointed out, this may be too limiting.[22] Some offensive, distressing or harmful invasions of privacy will be serious, even when the invasion cannot be described as ‘highly’ offensive, distressing or harmful.

8.24 The ALRC therefore recommends that a court consider the ‘degree’ or ‘extent’ of the offence, distress or harm to dignity likely to be caused by the invasion of privacy. The greater the likely offence, distress or harm, the more likely the invasion will be serious. This formulation provides the court with somewhat more discretion in its assessment of seriousness.

A person of ordinary sensibilities in the position of the plaintiff

8.25 It is important to ask whether the conduct was likely to offend, distress or harm the dignity of a person ‘in the position of the plaintiff’. Most people are not particularly offended, distressed, much less harmed, when the privacy of other people—particularly strangers—is invaded. The seriousness of an invasion of privacy should not be assessed by considering its effect on other people; it should be assessed by considering its likely effect on a person subjected to the invasion of privacy.[23]

8.26 Lord Hope in Campbell v MGN said that 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’.[24]

8.27 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.

8.28 The court should also consider the likely harm to a person of ‘ordinary sensibilities’. That a particularly sensitive person would be offended or distressed by an invasion of privacy may not be a good indication that the invasion was serious.

Likely harm and actual harm

8.29 The likely effect of the conduct should be distinguished from the actual effect of the conduct. An invasion of privacy may be likely to cause harm, even though in a particular case it does not cause harm, and vice versa. Whether the cause of action should require proof of damage is a related question, discussed separately below.

8.30 The actual effect of the invasion on the plaintiff may give some indication that the invasion of privacy was likely to have that effect, but it would not be conclusive. An invasion of privacy may have been unlikely to have any effect on anyone, or it may have been likely only to have a minor effect on persons of ordinary sensibilities. If the actual plaintiff is highly sensitive and was very much distressed by the invasion, a court might nevertheless consider that a person of ordinary sensibilities would be unlikely to be so distressed, and that therefore the invasion of privacy was not serious.

8.31 It should also be noted that the word ‘likely’ in Recommendation 8–1 should not be taken to mean ‘probable’, that is, more likely than not. Rather, ‘likely’ should mean ‘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’.[25] Some stakeholders said that if this is what the ALRC intends ‘likely’ to mean, then it should be set out in the Act.[26]

Knowledge and motive of the defendant

8.32 Although the likely effect of the plaintiff’s conduct should perhaps be the main focus of the court’s inquiry, the motives of the defendant may also suggest an invasion of privacy is serious. An invasion of privacy that was motivated by malice is more likely to be serious. The ALRC recommends that a court consider whether the defendant acted maliciously, when determining whether the invasion of privacy was serious.

8.33 Further, 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 found to be serious, even if a person of ordinary sensibilities might not have been likely to suffer such offence, distress or harm. The court should not be required to ‘disregard what the defendant knew or ought to have known about the fortitude of the plaintiff’. These are the words in s 32(4) of the Civil Liability Act 2002 (NSW), which relates to a confined duty to take care not to cause someone mental harm. The statutory cause of action for serious invasion of privacy should contain a provision similar to s 32(4).

8.34 This provision would also be relevant to the question of the reasonable expectation of the plaintiff in their particular circumstances.

Other factors

8.35 Other relevant factors could also be considered by the court when determining seriousness. For example, the Law Institute of Victoria suggested a court might take into account: 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.[27] It should be made clear in the Act that a court may consider other relevant factors.

A higher threshold?

8.36 Some stakeholders submitted that the threshold should be set higher than ‘serious’. The most common alternative threshold suggested by stakeholders was ‘highly offensive’.

8.37 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.[28]
A ‘highly offensive’ test was supported by some stakeholders.[29] A ‘highly offensive’ threshold is also favoured in New Zealand.[30]

8.38 As discussed above, the ALRC considers that the degree of offence caused by an invasion of privacy is one factor to consider when assessing seriousness, but it is not the only factor, nor necessarily the most important. Courts should also consider whether the invasion of privacy was likely to cause distress or harm to dignity, and other matters that make the invasion of privacy serious. In any event, the plaintiff should not be required to prove the invasion of privacy was highly offensive, if it can otherwise be shown to be serious.

[1] Privacy Act 1988 (Cth) s 13G. The Act does not define ‘serious’; the ordinary meaning of the word applies.

[2] Roger Toulson and Charles Phipps, Confidentiality (Sweet & Maxwell, 2012) [7–033]. Toulson and Phipps write that the other condition is that ‘there is no good and sufficient reason for it—“good” meaning a reason capable of justifying the interference, and “sufficient” meaning sufficient to outweigh the person’s Art 8 rights on a balance of the legitimate competing interests’.

[3] Ambrosiadou v Coward (Rev 1) [2011] EWCA Civ 409 (12 April 2011) [30] (Lord Neuberger MR).

[4] A number of stakeholders opposed an additional separate threshold: eg, N Witzleb, Submission 116; Australian Privacy Foundation, Submission 110; Public Interest Advocacy Centre, Submission 105; N Witzleb, Submission 29; Office of the Information Commissioner, Queensland, Submission 20; Women’s Legal Centre (ACT & Region) Inc., Submission 19; Pirate Party of Australia, Submission 18; P Wragg, Submission 4.

[5] Australian Privacy Foundation, Submission 110.

[6] P Wragg, Submission 73.

[7] NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) [23]–[33].

[8] Privacy Act, RSBC 1996, c 373 (British Columbia); Privacy Act, RSS 1978, c P-24 (Saskatchewan); Privacy Act, RSNL 1990, c P-22 (Newfoundland and Labrador); Privacy Act, CCSM 1996, c P125 (Manitoba).

[9] See, eg, Women’s Legal Services NSW, Submission 115; Office of the Victorian Privacy Commissioner, Submission 108; ASTRA, Submission 99; ABC, Submission 93; Google, Submission 91; Australian Bankers’ Association, Submission 84; Guardian News and Media Limited and Guardian Australia, Submission 80; National Association for the Visual Arts Ltd, Submission 78; Telstra, Submission 45 (‘A seriousness threshold must be imposed, both in order to discourage trivial or minor claims, and in order to provide business and the community with a level of certainty and consistency in its application’).

[10] SBS, Submission 123; ABC, Submission 93.

[11] The ALRC recommends a separate public interest balancing test in Ch 9.

[12] Eg, SBS, Submission 59; ABC, Submission 46; Telstra, Submission 45; Free TV Australia, Submission No 10 to DPM&C Issues Paper, 2011; SBS, Submission No 8 to DPM&C Issues Paper, 2011.

[13] Defamation Act 2013 (UK) s 1.

[14] Jonathan Djanogly MP quoted in James Price (ed) and Felicity McMahon (ed), Blackstone’s Guide to the Defamation Act 2013 (Oxford University Press, 2013) 20. This provision differs from the seriousness test recommended by the ALRC in a few ways. Perhaps most notably, the UK provision is a subjective test—harm or likely harm to the claimant must be proven.

[15] See Ch 9.

[16] Macquarie Dictionary.

[17] Concise Oxford Dictionary.

[18] The plaintiff should not be required to prove actual damage: Rec 8–2.

[19] K Barker, Submission 126.

[20] ‘A young child photographed naked through a telephoto lens may well experience no offense or distress at all. Nor is it really relevant whether anyone else is offended by the publication of the photograph. The point is that privacy laws should “carve out some personal space” for the child which protects it against such intrusion and potentially prejudicial disclosure.’: Ibid.

[21] This was intended to mean ‘highly offensive, highly distressing or highly harmful’.

[22] ‘If a seriousness threshold were introduced, it should be set at “offensive, distressing or harmful”. I believe that it would be setting the bar much too high if a privacy invasion was actionable only if it was, or was likely to be, “highly distressing” or “highly harmful”’: N Witzleb, Submission 116.

[23] Professor Kit Barker submitted that it was not ‘really relevant whether anyone else is offended by the publication of the photograph’: K Barker, Submission 126.

[24] Campbell v MGN Ltd [2004] 2 AC 457, [99] (emphasis added).

[25] These are the words of Lord Nicholls of Birkenhead speaking in a different context in Re H and R (Child Sexual Abuse) [1996] 1 FLR 80 [69] (Lord Nicholls). This definition was referred to in Venables & Anor v News Group News Papers Ltd & Ors [2001] EWHC QB 32 (8 January 2001) (Butler–Sloss P). Cf Cream Holdings Ltd v Banerjee (2004) 1 AC 253.

[26] Eg, Law Society of NSW, Submission 122 (‘Given the degree of particularity ascribed to “likely” the BLC recommends that this detail be included in any legislation’).

[27] Law Institute of Victoria, Submission 22.

[28] Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) Rec 74–2; Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010) Recs 25, 26. It is worth noting that the ‘highly offensive’ test is at times conceptualised as going to the seriousness of an invasion and, at others, as a test of what may be considered private. An example of the latter is Gleeson CJ’s statement that ‘the requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private’: ABC v Lenah Game Meats (2001) 208 CLR 199, [42].

[29] SBS, Submission 59; Australian Bankers’ Association, Submission 27; Insurance Council of Australia, Submission 15. This threshold was supported by some stakeholders who opposed the introduction of the cause of action, perhaps because the threshold is high.

[30] The New Zealand Court of Appeal has said that one of the two fundamental requirements for a successful claim for interference with privacy was publicity given to private facts ‘that would be considered highly offensive to an objective reasonable person’: Hosking v Runting (2005) 1 NZLR 1, [117]. See also C v Holland 3 NZLR 672 [94] (Whata J).