Better keep those curtains drawn!

Key Points
  • No statutory cause of action for serious invasions of privacy.
  • New criminal offences against non-consensual sharing of intimate images.

On 5 September 2016, Gabrielle Upton, NSW Attorney General, issued the NSW Government’s response to the recommendations of the Standing Committee on Law and Justice’s report entitled Remedies for the Serious Invasion of Privacy in New South Wales published on 3 March 2016.

Frustrated by the lack of progress on this issue at a Federal level, the report’s recommendations included that the NSW Government introduce a statutory cause of action for serious invasions of privacy.

The NSW Government’s response noted:

  • the Federal Government has confirmed that it does not support a tort of privacy;
  • no other Australian jurisdiction has indicated a willingness to take steps in this direction;
  • the Australian Law Reform Commission had concluded that a state based regulatory approach would not be effective;
  • a lack of national uniformity would be likely to lead to increased costs for legitimate NSW business activities compared to their competitors in other states (no examples of what these costs might be were provided and none spring to mind);
  • protection of privacy needs to be carefully balanced with the freedom of expression; and
  • because the social media environment is constantly evolving, the impact of a new statutory cause of action on legitimate business activities (no examples here either) cannot be assessed.

For all of these reasons, the NSW Government is not going to go it alone by introducing a statutory cause of action for serious invasions of privacy but they will initiate discussions with other Australian jurisdictions on this issue.

However, the NSW Government is also considering the introduction of new criminal offences against non-consensual sharing of intimate images (which the report had recommended would be covered by the statutory cause of action).  The NSW government proposes to consult with stakeholders.

Post by John Kell 

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