Torts-privacy

Therefore, the judgment of Lenah swept away the seeming obstacle Victoria Park 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 Purvis, 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 Park 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.’ 

The decision in Purvis 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. For instance, the decision in Giller was dismissive of the cause of action for breach of privacy. Like Grosse, 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. 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’. 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. The decision in Giller emphasizes the inadequacy of action for breach of confidence and the rule in Wilkinson 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. 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’ 

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 conversation:

"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 estate 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! Ltd and Campbell v The Mirror Group Newspapers).  The cases were amongst the first post the Human Rights Act and therefore in many ways represent a departure from Flemings view purported 1998. The Campbell 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 Douglas. 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) 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 commented:

‘. 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. 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. 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. 

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. 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.’ 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.’ 

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. 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. 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. 

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

1. 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), <>, 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

10. Lenah Game Meats v Australian Broadcasting Corporation (2001) 208 CLR 199, 328.
11. Lewis J, ‘Privacy: A Missed Opportunity?’[2005] 13 Tort Law Review 166

12. McKinnon, K. ‘The developing tort of privacy’, 25th Sept 2005, , last accessed: 09/09/07

13. R v Khan ; [1997]

14. Trindale F, ‘Possums, Privacy and the implied Freedom of Communication’ [2005] 10 Torts Law Journal 119

15. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479

16. Winfield, ‘Privacy’, (1931) 47 Law Quarterly Review 23.

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