'Violation of privacy has not so far, at least under that name, received explicitly recognition as a tort by the British courts...our courts have been content to grope forward cautiously along the grooves of established legal concepts like nuisance and libel, rather than make a bold commitment to an entirely new head of liability.' Prof J.G. Fleming, The Law of torts, 9th edn., LBC, 1998
Discuss and evaluate the ways in which courts have to date, endeavoured to afford a remedy to individuals whose privacy has been invaded and consider whether a tort of invasion of privacy might be developing in Australia.
Australian courts have generally been hesitant to develop a tort of privacy comparable to that which exists in other common law jurisdictions such as New Zealand and the United States. The courts have often suggested that if there were circumstances in which the argument could reasonably be raised there would be room for the tort of privacy to develop.1 The issues which the courts have attempted to balance are freedom of communication laws along with the right to privacy in a surveillance society and modern human rights context. The leading case in the area which discusses and evaluates the tort of privacy in Australia is Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd. The case forms a crucible for the discussion of privacy in Australia and the way the courts have attempted to provide remedies under other categories of law but also shows the way in which the courts have deliberately avoided making a definitive and clear statement on the subject.
Lenah2 concerned hidden video cameras installed in licensed possum killing and processing abattoirs by trespassers which was then supplied Animal Liberation who then passed it on the ABC. The operators Lenah3 applied to the Tasmanian supreme court for an injunction on the airing of the footage. The application was dismissed but the decision to refuse the injunction was reversed by the Full Court in appeal. The High Court overturned this decision on appeal citing the implied constitutional freedom favouring the discussion of animal welfare as a matter of governmental and political concern. The abattoir submitted to the court that the broadcasting of the video would constitute an actionable tort of the invasion of its privacy.4 There were many circumstances according to the court which did not lend to a tort of privacy. Gleeson CJ surmised that the information was not of a nature which can be regarded as confidential and did not become so just because it was occurring on a private property. Secondly, there was no relationship of trust and confidence between the respondent and the people to made or received the film. Finally, there was also the issue of the Lenahs position as a corporation and whether the privacy of a corporation should be protected.5
Lenah6 also allowed for a discussion of Victoria Park7 and its impact on the development of the tort of privacy or lack thereof. Kirby J stated: 'Since the majority decision of this Court in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor8, it has generally been accepted that a cause of action for breach of privacy does not exist in the common law of Australia9, any more than it existed in the common law of England10.' It was the courts discussion of Victoria Park11 which 'opened the door' for the development of tort of privacy. Furthermore, Gummow and Hayne stated (with whom Gaudron J agreed) that 'Victoria Park does not stand in the path of the development of....a cause of action (for invasion of privacy).'
Therefore, the judgment of Lenah12 swept away the seeming obstacle Victoria Park13 which had limited the development of a tort of privacy and cleared the way for the development of such a tort. This opening was taken up by the court in Grosse v Purvis14, which arose from the fact that the plaintiff stalked or harassed the plaintiff for a number of years. Appling the view in Lenah, the court decided that Victoria Park15 did not stand in the way of the development of the tort or privacy. Judge Skoien stated: 'It is a bold step to take...but ...
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Therefore, the judgment of Lenah12 swept away the seeming obstacle Victoria Park13 which had limited the development of a tort of privacy and cleared the way for the development of such a tort. This opening was taken up by the court in Grosse v Purvis14, which arose from the fact that the plaintiff stalked or harassed the plaintiff for a number of years. Appling the view in Lenah, the court decided that Victoria Park15 did not stand in the way of the development of the tort or privacy. Judge Skoien stated: 'It is a bold step to take...but a logical and desirable step.'16
The decision in Purvis17 marked a more bold and decisive step towards developing a limited tort of privacy. Decisions by other state jurisdictions however display the general lack of consensus on the issue in Australia law and that the courts are still content to deal with torts involving an invasion of privacy under existing torts. This in many ways confers with Professor Fleming's analysis of the situation in Australia at present.18 For instance, the decision in Giller19 was dismissive of the cause of action for breach of privacy.20 Like Grosse21, the case involved the aftermath of the breakdown of a de facto relationship. The female plaintiff made a number of claims, the most relevant for present purposes related to the distress and humiliation she felt was a result of the defendant showing and threatening to distribute a video of the parties engaging in sexual activities.22 Gillard J dismissed all three causes of action: breach of confidence, intentional infliction of mental harm and breach of privacy. Gillard J accepted the trust and confidence of the relationship between the parties and that the showing of the video footage would be a breach of confidence however emphasized that the cause of action for breach of confidence was an equitable. Gillard J went on to state that the law 'has not developed to the point where the law in Australia recognizes an action for breach of privacy'23. However it could be said that Gleeson's J argument in Lenah could have come into play here as there was a relationship of trust and confidence and a clear private act.24 The decision in Giller25 emphasizes the inadequacy of action for breach of confidence and the rule in Wilkinson26 in providing effective redress in lieu of a tort of privacy. It also reveals the need for a discussion on the place of privacy laws in a hyper surveillance society.
The issue of a surveillance society is particularly important with the advent of camera phones and a variety of technologies it has never been easier to film, photograph or collect information by covert means.27 Des Butler states these advances mean not only that there is easy dissemination of information through the internet but also that 'there is now nowhere on the planet that a person may retreat with absolute assurance of being left alone'28
As Rehnquist CJ observed on the matter in a case in the Supreme Court of the United States concerning media publication of an unlawfully intercepted telephone conversation29:
"Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks. These advances, however, raise significant privacy concerns. We are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations."
It is here the medias position as a fourth estate30 and its role in disseminating information but also the corresponding need for individual privacy intersect. The media have been the subject of several cases in the UK. The two cases in particular which paved the way for the development of a privacy tort are: Douglas v Hello! Ltd31 and Campbell v The Mirror Group Newspapers)32. The cases were amongst the first post the Human Rights Act33 and therefore in many ways represent a departure from Flemings view purported 1998.34 The Campbell35 case is seen as the leading case in the UK which has paved the way for the development of privacy laws, although it did not depart too much form the decision in Douglas36. Campbell was photographed on a public street, leaving narcotics anonymous meetings and the caption contained information that was of a private nature. The English High Court awarded damages, taking into account the European Convention on Human rights (ECHR)37 which had been incorporated into English domestic law by statute. The cases also highlight a sub-set of privacy questions concerns the rules that ought to apply to celebrities. Although Naomi Campbell won her case , the judge commented38:
'. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media.... If you have courted public attention then you have less ground to object to the intrusion which follows.'
Alternatively, it could be noted that Naomi Campbell had previously sold herself on the image of being 'drug free' to enhance her image to financial advantage.39 Therefore the case does raise the question on whether high profile celebrities should be able to use a tort of privacy to be able to filter their public image. This clearly has nothing to do with human dignity.40 Gummow and Hayne JJ addressed this point with reference to what the United States calls 'appropriation' in Lenah Game Meats, the plaintiff's complaint in such a case is more likely to be that the defendant has acted for a commercial gain, thereby depriving the plaintiff of the opportunity of commercial exploitation of that name or likeness for his or her own benefit.41
Privacy laws in the US and New Zealand suggest that there may be an impetus to further solidify and firmly establish privacy laws in Australia. However, the impetus for any change in Australia cannot be the same as the United Kingdom which operates under the influence of the HRA and the ECHR.42 Moreover, as Callinan J pointed out, Australia should not merely adopt United Stated jurisprudence, since the political and constitutional history of Australia is unlike that of the United States, where the relevant jurisprudence is complicated by the First Amendment. Callinan stated: 'any principles of an Australian tort of privacy would need to be worked out on a case by case basis in a distinctly Australian context.'43 To this effect Sedley LJ commented on the need for such a develop of Law in Douglas v Hello! Ltd: 'The common law ... grows by slow and uneven degrees. It develops reactively, both in the immediate sense that it is only ever expounded in response to events and in the longer-term sense that it may be consciously shaped by the perceived needs of legal policy.'44
Evident in all the cases discussed so far has been the idea that if the courts were presented with circumstances in which it were more appropriate to more strongly consider the development of a tort of privacy then they would. This was expressed in Lenah, Kirby J was content to put off the decision on the tort of privacy because of Lenah's status as a corporation.45 Therefore, the question remains on what kind of circumstances it would require for the court to further explore the development of a tort of privacy. An interesting fact scenario presents itself in the recent case of channel 7 broadcasting details clubs and players at centre of an alleged drugs scandal.46 The information which came to seven was from a woman who found the papers in the gutter outside a drug treatment centre. An injunction was granted on the basis that seven breached doctor-patient confidentiality. Circumstances not dissimilar to this would provide a good place for a discussion of issues surrounding privacy which have been discussed in the paper, whether Australia will head in the direction of the British courts and the development of a tort of breach of confidence; Gleeson's CJ view in Lenah or the support for the American model supported by Gummow and Hayne JJ.47
In summary, the courts have been reluctant to make a definitive statement on the tort of privacy and have been content to postpone such a decision until it is necessary. Thus whilst a tort of privacy may be developing in Australia it has been hindered by the lack of a clear decision by the high court, as is seen by the various decisions in state jurisdictions. As a result there remains a need for a more bold decision as in other common law jurisdictions, as with the advent of new technologies and in the era of modern human rights the questions asked of the courts will only grow louder.
Word Count: 1966
BIBLIOGRAPHY
. Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, Report No 11,
2. Brice, K. , 'Channel 7's AFL drug report 'flouted the law', August 30, 2007 < http://www.news.com.au/story/0,23599,22333318-421,00.html>
3. Butler, D. 'A tort of privacy invasion in Australia?' [2005], Melbourne University Law Review, 339
4. Campbell v Mirror Group Newspapers [2004] UKHL 22
5. Department of Parliamentary Services, 'Do Australian's have a legal right to privacy?', (2005), <http://www.aph.gov.au/LIBRARY/pubs/rn/2004-05/05rn37.pdf>, last accessed: 08/09/07
6. Douglas v Hello! Ltd [2001] QB 967, 1001.
7. Fleming, J, The Law of torts, 9th edn., LBC, 1998
8. Giller v Procopets [2004] VSC 113, 188
9. Grosse v Purvis [2003] QDC 151
0. Lenah Game Meats v Australian Broadcasting Corporation (2001) 208 CLR 199, 328.
1. Lewis J, 'Privacy: A Missed Opportunity?'[2005] 13 Tort Law Review 166
2. McKinnon, K. 'The developing tort of privacy', 25th Sept 2005, http://www.presscouncil.org.au/pcsite/fop/cpu.html, last accessed: 09/09/07
3. R v Khan [1996] UKHL 14; [1997]
4. Trindale F, 'Possums, Privacy and the implied Freedom of Communication' [2005] 10 Torts Law Journal 119
5. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
6. Winfield, 'Privacy', (1931) 47 Law Quarterly Review 23.
Kalaba v Commonwealth [2004] FCA 763
2 Lenah Game Meat v ABC (2001) 208 CLR 199
3 ibid
4 McKinnon, K. 'The developing tort of privacy', 25th Sept 2005, http://www.presscouncil.org.au/pcsite/fop/cpu.html, last accessed: 09/09/07
5 Lenah Game Meats v ABC (2001) 208 CLR 199
6 ibid
7 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
8[1937] HCA 45; (1937) 58 CLR 479; cf Northern Territory v Mengel [1994] HCA 37; (1995) 185 CLR 307 at 354.
9 See Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, Report No 11, (1979) at 112-116 [215]-[222]; Australian Law Reform Commission, Privacy, Report No 22, (1983), vol 2 at 21 [1076].
0 Malone v Metropolitan Police Commissioner [1979] Ch 344 at 372; Kaye v Robertson [1991] FSR 62 at 66, 70, 71; (1990) 19 IPR 147 at 150, 154, 155; R v Khan [1996] UKHL 14; [1997] AC 558 at 582-583; Winfield, "Privacy", (1931) 47 Law Quarterly Review 23.
1 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
2 Lenah Game Meats (2001) 208 CLR 199
3 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
4 Grosse v Purvis (2003) QDC 151
5 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
6 Grosse v Purvis (2003) QDC 151, 442 (Gillard J)
7 Grosse v Purvis [2003] QDC 151
8 Fleming, J, The Law of torts, 9th edn., LBC, 1998
9 Giller v Procopets [2004] VSC 113
20 Butler, D. 'A tort of privacy invasion in Australia?' [2005], Melbourne University Law Review, 339
21 Grosse v Purvis [2003] QDC 151
22 [2004] VSC 113 (Unreported, Gillard J, 7 April 2004) [1]
23 Giller v Procopets [2004] VSC 113, 188 (Gillard J)
24 Lenah Game Meats v ABC (2001) 208 CLR 199
25 Giller v Procopets [2004] VSC 113
26 Wilkinson v Downton [1897] 2 QB 57
27 Beach camera ban fails', The Daily Telegraph, 3 February. 2005, p. 3
28 Butler, D. 'A tort of privacy invasion in Australia?' [2005], Melbourne University Law Review, 339
29381 US 479 at 485 (1965).
30 The idea of the press, both in its explicit capacity of advocacy and in its implicit ability to frame political issues
31 Douglas v Hello! Ltd [2001] QB 967, 1001
32 Campbell v Mirror Group Newspapers [2004] UiKHL 22
33 (1998)
34 That violation of privacy has not received explicit recognition by the British courts
35Campbell v Mirror Group Newspapers [2004] UKHL 22
36 Douglas v Hello! Ltd [2001] QB 967, 1001.
37 Butler, D. 'A tort of privacy invasion in Australia?' [2005], MULR 11, 29
38 McKinnon, K. 'The developing tort of privacy', 25th Sept 2005, http://www.presscouncil.org.au/pcsite/fop/cpu.html, last accessed: 09/09/07
39 Carter-Ruck, 'New Model Privacy' [2004], Media and Human rights lawyers, http://www.carter-ruck.com/articles/280504_NewModelPrivacy.html, last accessed: 09/09/07
40 Butler, D. 'A tort of privacy invasion in Australia?' [2005], Melbourne University Law Review, 339
41 (2001) 208 CLR 199, 256.
42 Butler, D. 'A tort of privacy invasion in Australia?' [2005], Melbourne University Law Review, 339
43 Lenah Game Meats (2001) 208 CLR 199, 328.
44 Douglas v Hello! Ltd [2001] QB 967, 997 (Sedley LJ):
45 Lenah Game Meats v ABC (2001) 208 CLR 199, 189 (Kirby J)
46 Brice, K. , 'Channel 7's AFL drug report 'flouted the law', August 30, 2007 < http://www.news.com.au/story/0,23599,22333318-421,00.html>
47 Lenah Game Meats v Australian Broadcasting Corporation (2001) 208 CLR 199, 328.
Fatima Malik Research Essay: Question 3 10433050
