The Bill introduces a new cause of action in tort for intentionally or recklessly intruding upon a person’s seclusion or misusing information that relates to them, in circumstances where a reasonable expectation of privacy exists. The tort will only apply where the invasion of privacy was ‘serious’.
A statutory tort of this kind has been under consideration for many years, with the Government’s model drawing upon recommendations by the Australian Law Reform Commission in its 2014 report on Serious Invasions of Privacy in the Digital Era.
Several exceptions and defences have been contemplated, most notably including a journalism exemption, covering invasions of privacy involving the collection, preparation or publication of ‘journalistic material’ by journalists and other categories of employees in the media sector. We anticipate two major issues with the proposed exception. First, the exception only covers journalists, the employers of journalists and certain persons assisting a journalist. It does not provide an exception for the publisher of journalistic material. This appears to be a significant omission, particularly given that the publishers of material are often not the same entity as the employer of a journalist and, in some cases, publishers source journalistic material from self-employed journalists or other content providers. Second, we expect the Government’s definition of ‘journalistic material’ will be particularly scrutinised by media organisations given the breadth of activities undertaken in the media sector and the narrow approach to the term adopted in the Bill.
Where a defendant brings evidence that there was a public interest in the invasion of privacy, the Bill requires the plaintiff to demonstrate that this public interest is outweighed by the public interest in protecting their privacy.
The Bill also grants the court the power to provide injunctive relief restraining the invasion of privacy (though the court must have particular regard to the public interest where it involves a publication).
Despite these exceptions and defences, the introduction of the statutory tort could have the potential to significantly impact public discourse in Australia, particularly given that (unlike in comparable jurisdictions) a fundamental right of freedom of expression has (other than the implied right of political communication) not been enshrined in statute. Notably, the Bill contemplates that a defendant can adduce evidence relating to freedom of expression, when no such general right exists.
The Government had also agreed in principle with a recommendation to afford individuals a direct right of action for contraventions of the Privacy Act, but that amendment has not been picked up in this tranche of legislation and it remains to be seen whether it will be implemented in future. The introduction of a direct right of individual action for Privacy Act contraventions has been seen as a significant precursor to the potential expansion of privacy-related class action claims in Australia. In its absence, there may be efforts to leverage the statutory tort for serious invasions of privacy by organisations as a substitute.