A Tort of Invasion of Privacy in Australia?
Butler, Des, Melbourne University Law Review
[Recent decisions in the House of Lords and the New Zealand Court of Appeal have recognised forms of protection of personal privacy in the United Kingdom and New Zealand respectively. With the High Court clearing the way for the development of such a tort in Australia, this article addresses the potential form that such a development could take. The need to take into account existing laws, including the constitutional freedom of communication concerning governmental or political matters, should result in the development of a tort and corresponding defences which are appropriately adapted to an Australian context.]
CONTENTS I Introduction II Lenah Game Meats: The Removal of an Obstacle III International Experience A United States: Genesis of the Tort of Invasion of Privacy B United Kingdom: Metamorphosis of a Cause of Action C New Zealand: Protection of Private Facts IV Developments in Australia V Protection of Privacy in Australia? A Impetus for Change B Intentional Infliction of Mental Harm: A Viable Alternative? C Potential Form of the Tort D Defences 1 Existing Indicators 2 Private Interest: Consent 3 Public Interest 4 Other Defences VI Conclusion
Australia is a signatory to the International Covenant on Civil and Political Rights, (1) art 17 of which requires contracting states to ensure that their domestic legal systems provide adequate protection against interference with privacy. (2) Although legislation has been enacted at federal and state levels protecting the privacy of information (3) and communications, (4) it has long been asserted that the common law of Australia did not recognise an enforceable right to personal privacy. (5) However, in 2001 the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (6) rejected this assertion and entertained the possibility that the common law might develop to recognise a tort of invasion of privacy. (7) There have since been mixed messages from lower courts concerning the development of the tort in this country, with cases both supporting (8) and resisting (9) its recognition.
What is it about personal privacy that makes its protection problematic? A major difficulty lies in defining what 'privacy' means--the concept lacks precision. (10) An associated problem exists in striking the appropriate balance between privacy interests and free speech interests, (11) an issue which will involve a determination of the nature and scope of appropriate defences, in particular any public interest defence.
This article discusses the possible development of a tort of invasion of privacy in Australia. After a brief reference to the views expressed by the High Court in Lenah Game Meats, it traces the development of privacy torts in the United States, United Kingdom and New Zealand. The article then examines the Australian cases subsequent to Lenah Game Meats that have considered privacy, before addressing the various live issues that are involved in the recognition of the tort, including the scope of the defences.
II LENAH GAME MEATS: THE REMOVAL OF AN OBSTACLE
It was long believed that the common law of Australia, like that of the United Kingdom, did not recognise a right to privacy. This view was traditionally supported by reference to dicta in Victoria Park, (12) which concerned an attempt by the owner of a racetrack to prevent the defendants from observing and broadcasting the races and race information displayed at the track from the vantage point of a platform constructed on adjacent land. The plaintiff based its claim on various grounds, including nuisance, to which Latham CJ remarked '[h]owever desirable some limitation upon invasions of privacy might be, no authority was cited which shows that any general right of privacy exists.' (13)
More recently, however, the High Court in Lenah Game Meats rejected the assumed authority of the Victoria Park case. …