Statutory cause of action for serious invasions of privacy

The Standing Committee on Law and Justice Inquiry into Serious Invasions of Privacy in New South Wales (Committee) released its report on 3 March 2016 (Report). The Report recommends that New South Wales (NSW) introduce a statutory cause of action for serious invasions of privacy.

The Committee commented that the lack of political will federally to enact a statutory cause of action suggests that little will happen if NSW were to continue to wait for change at a federal level.

The Report noted that the Australian, Victorian and NSW Law Reform Commissions had all reviewed the law relating to privacy and each supported the introduction of a statutory cause of action for invasions of privacy.

The most recent recommendations were contained in the Australian Law Reform Commission 2014 report Serious Invasions of Privacy in the Digital Era: Report 123 (ALRC 2014 Report).

After comparing the recommendations contained in the various reports of the different law reform commissions, the Committee recommended that the statutory cause of action should be based on the model in the ALRC 2014 Report.

Elements of that model include:

  • It is relatively narrow in scope in that it only applies to two categories of invasion of privacy: intrusion upon seclusion and misuse of private information;
  • The plaintiff must be able to establish a reasonable expectation of privacy in all the circumstances;
  • The action is limited to serious invasions of privacy; and
  • The tort should be actionable per se; there is no need for the plaintiff to prove actual damage.

In the ALRC 2014 Report the action is confined to intentional or reckless invasions of privacy; it does not extend to negligent conduct. The Committee received a number of submissions on this issue. In relation to fault, the Committee recommends that the statutory cause of action should in include a fault element of:

  • Intent, recklessness and negligence for governments and corporations; and
  • Intent and recklessness for natural persons.

The Report also recommends that the role of the NSW Privacy Commissioner should include scope to hear and determine complaints between individuals relating to alleged serious invasions of privacy.

Post by John Kell 

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