ALRC's 'Invasions of privacy' reforms: Protecting privacy at the expense of freedom of expression


A privacy law amendment proposed by the Australian Law Reform Commission (ALRC) is likely to stop media defendants being able to use public interest as a defence for serious invasions of privacy.

The ALRC has again entered the privacy debate, releasing several draft proposals in a discussion paper titled, Serious Invasions of Privacy in the Digital Era.  

Principal among the proposals is a new statutory cause of action for serious invasions of privacy which clearly targets the media.

ALRC Inquiry Commissioner, Professor Barbara McDonald, acknowledges the prospect of a new privacy law is a “concern” for the media but says the media is “not necessarily served well by uncertainty and inconsistency in the existing law”. 

‘A New Tort in a New Commonwealth Act’

Like a tightrope artist on a highwire, the proposed statutory cause of action must strike the right balance between competing rights and desires - privacy against freedom of expression and the right to open justice, as well as the need for the law to provide certain and consistent outcomes while also adapting to a changing technological landscape. 

There are five elements to the proposal, all of which must be satisfied:

  1. There must be an intrusion into the plaintiff’s seclusion or private affairs (including by unlawful surveillance), or the misuse or disclosure of private information (whether true or not);
  2. The invasion of privacy must be intentional or reckless (the fault element);
  3. There must be a reasonable expectation of privacy;
  4. The invasion of privacy must be serious. For example it must be ‘highly offensive, distressing or harmful to a person of ordinary sensibilities in the position of the plaintiff’; and
  5. The court must be satisfied that the plaintiff’s privacy interests outweigh the defendant’s freedom of expression rights and any broader public interest.

The proposed fault element of the new law, coupled with the requirement that the invasion of privacy must be ‘serious’, is designed to dissuade plaintiffs from making unmeritorious or vexatious claims.

The fifth element of the cause of action, which requires a balancing act between privacy and the public interest, has been criticised as putting the cart before the horse. Indeed, concern has been raised that our courts may follow the UK lead where courts have become increasingly sympathetic to privacy rights at the expense of the broader public interest. 

However, any criticism ought be tempered with an understanding that making the balancing requirement an element of the cause of action may in fact provide greater protection to free speech than would occur if public interest was considered only as a defence. This is because if it is found that the public interest outweighs an individual’s privacy rights, then a cause of action simply cannot be established. Two things are important:

  1. The balancing act must have a proper focus on a broad and flexible concept of public interest; and
  2. It must be clear that matters that are truly in the public interest can override what would otherwise be considered a private matter.

The new cause of action allows several defences. One of these offers a safe harbour scheme to protect internet intermediaries from being liable for the actions of their service users who innocently disseminate material that invades privacy.

A proposed allowance for the recovery of emotional distress damages reflects the ALRC’s belief that embarrassment and humiliation can cause significant harm even though that harm may not be physical or financial.

If the Government does not enact the proposed statutory cause of action, the ALRC recommends new legislation be introduced to enhance the law governing breach of confidence and enable the courts to award compensation for emotional distress.

Other Important Reforms - Uniform Surveillance Laws

The ALRC acknowledges the considerable body of law currently governing surveillance devices and work place surveillance. It also points to grave legal inconsistencies in these laws including the types of devices regulated and the offences, defences and exceptions available. These inconsistencies reduce individuals’ privacy protection and create uncertainty in organisations.

For example, it is currently illegal in New South Wales to record your conversation without the consent of all participants, but the same conduct is perfectly legal in Victoria.  

The ALRC’s proposed compromise is a new defence of “responsible journalism” that protects freedom of speech and allows journalists to investigate important matters of public concern, like corruption, without breaking the law every time they record a private conversation.

The ALRC recommends new uniform surveillance laws that include:

  • a technology neutral definition of ‘surveillance device’;
  • an offence proscribing the surveillance or recording of private conversations or activities without the consent of the participants; and
  • a provision that a court may make orders to compensate, or otherwise provide remedial relief to, a victim of unlawful surveillance.

In Summary

The proposed statutory cause of action seeks to strike a balance between the right to privacy on the one hand and public interests such as freedom of expression and open justice on the other.

This balance forms an integral part of the reform proposal and can only be achieved if a broad and flexible concept of public interest is adopted and it is clear that matters that are truly in the public interest may override what would otherwise be a private matter.

It is essential that the balancing act never be performed, even on a preliminary basis, only on a plaintiff’s complaint of a privacy infringement. That would put the cart before the horse. A proper balancing act can only be performed where an alleged privacy infringement and the relevant public interest matters are put on the table at the same time and examined together.

Submissions to the ALRC in response to the discussion paper were due by 12 May 2014. The ALRC intends to provide its final report to the Attorney General by the end of June 2014. 

The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.

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Richard Leder

Partner. Melbourne
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Georgie Austin

Senior Associate. Melbourne
+61 3 9672 3178