NSW may get an invasion of privacy law

A right to sue publishers for damages for “negligent” invasion of privacy, including for news reporting, has been recommended by a NSW parliamentary committee.

On 3 March 2016 the the NSW Standing Committee on Law and Justice published its Report no 57 Remedies for the Serious Invasion of Privacy in New South Wales. The key recommendation of interest to publishers is the introduction of a broad civil cause of action for “serious invasion of privacy” in New South Wales.

Why have a general action for invasion of privacy?

The Committee’s main stated focus was to find workable remedies against “revenge porn”, or the phenomenon of unwanted online circulation of intimate images. The Committee acknowledged that most submissions were about problems arising out of domestic disputes.

However, due to the “vast majority” of submissions supporting it, the Committee recommended a general cause of action for serious invasion of privacy.

What the proposed law would look like

The Committee generally adopted the Australian Law Reform Commissions’s proposal for a civil cause of action for “serious invasion of privacy” in its 2014 Report Serious Invasions of Privacy in the Digital Era:

  • Conduct constituting an invasion of privacy by intrusion into seclusion or misuse of private information;
  • The plaintiff had a reasonable expectation of privacy in all the circumstances;
  • the invasion was reckless or intentional (here the Committee diverged from the ALRC on the issue of negligence, as noted below)
  • the invasion must be “serious”

What is a “serious” invasion of privacy?

The Committee, like the ALRC before it, refrained from defining what “serious” means. This threshold question will need to be defined in any legislation, or may be left to be tested in court. This question would be an important determinant of what kind of claims may succeed.

Negligent invasion of privacy

In contrast to the ALRC, the Committee recommended that corporate and government defendants also be liable for “negligent” conduct, as well as for intentional or reckless invasions of privacy. The Committee appears to have based this recommendation about “big data breaches”. It cited the example of the inadvertent release of details of asylum seekers on the Department of Immigration website in 2014. Unfortunately, there is no analysis of how “negligence” would apply to other forms of alleged invasion of privacy, such as a news report revealing private information about a person. The boundaries of this negligence aspect would need to be established by case law. As media submissions pointed out, such a regime could chill free speech.

Remedies

The Committee recommended that remedies such as damages, apologies and injunctions could be sought in ordinary courts. The Committee also recommended that the NSW Privacy Commissioner be given apology and take down powers, and that the NSW Civil and Administrative Tribunal (NCAT) be granted jurisdiction to hear claims under $40,000 as an additional alternative to ordinary courts.

Implications for media related privacy claims

The Committee dismissed media submissions that existing laws were adequate to protect against media intrusions into privacy. The Committee also appears to have taken a dim view of privacy protection under existing media codes of practice. Committee members cited Seven’s “outing” of NSW Minister David Campbell, and ACMA’s subsequent dismissal of a code complaint, as evidence that existing codes were inadequate.

The Committee made little or no distinction between privacy disputes which might arise between private individuals, and those concerning the press. The Report does not recommend any exemption for publishers with their own privacy code, such as section 7B of the existing Privacy Act 1988 (Cth).The Committee did not expressly consider whether it would be appropriate for publishers to be subject to apology or takedown orders by the Privacy Commissioner. The question of whether publishers would be suited to appearances before NCAT, which is largely an unrepresented forum, was also not expressly considered.

The question of when public interest would outweigh a privacy claim is a difficult one, as is the question of when there is a “reasonable expectation of privacy”. Fact scenarios which might raise these issues could include:

  • publications reporting on or dramatising the private lives of public figures
  • publications about alleged or unethical criminal behaviour occurring on private premises
  • public images which reveal private information about a person

As Australia has no bill of rights protecting freedom of expression, the outcome may be weighted further towards the claimant asserting invasion of privacy than in other countries such as the US or the UK.

Conclusion

While some very valid issues of social concern about invasion of privacy were raised before the Committee, there are a number potential chilling effects on freedom of expression if a general civil cause of action is to be introduced into New South Wales. If legislators wish to pursue such a broad-brush law, special provisions should preferably be considered to protect press freedom and independence. Ideally, a review of surveillance devices legislation should also be undertaken and efforts made to harmonise laws nationally.

The Committee has asked the NSW government to respond by September 2016.

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