Introduction
Privacy and defamation laws interact where sometimes a Plaintiff will bring an action for both. In Australia, unlike in the United States of America and New Zealand, there is yet no tort of breach of privacy. The High Court of Australia has indicated that there may be a need for one, however, it believes that it is for the Parliament to create the laws not the Courts and that the Courts’ role is to administer justice according to law, not to create the law.
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd1
In this case, an unidentified person/s broke into the Respondent’s meat processing plant and installed hidden cameras which they used to film the slaughter and processing of brushtail possums for human consumption. A film was made using the footage taken from the hidden cameras and was provided to the Australian Broadcasting Corporation (ABC). The ABC was planning to broadcast the film on its television channel, but the Respondent successfully obtained an injunction. The ABC appealed that decision to the High Court of Australia. The High Court overturned the ruling of the Full Court of the Supreme Court of Tasmania and decided that an injunction should not be granted. The ABC then broadcast footage taken using the hidden cameras.
Given that the film was obtained without the consent of the Respondent and by means of trespass onto the Respondent’s property, the High Court considered the issue of privacy. Although release of the film would have been damaging to the Respondent’s reputation and marketing campaign for the sale of brushtail possum meat it did not rely on the cause of action of defamation.
Justices Gummow and Hayne stated at that Justice Murphy had identified “unjustified invasion of privacy” as one of the “developing torts” in Church of Scientology v Woodward2. They discussed the legal position of invasion of privacy in England and the United States and concluded that if there was a tort of invasion of privacy in Australia, it would only protect individuals and not corporations. However, they stated that the debate of whether there should be a tort of invasion of privacy in Australia is not “foreclosed” by their judgment.
Kirby J stated3 that there is no tort of invasion of privacy in Australia and that the Australian Law Reform Commission had concluded that a general statutory right to privacy should not be recommended in Australia4. He concluded that as there were other bases for injunctive relief available to Lenah Game Meats and that the question of whether there is a tort of invasion of privacy in Australia need not be considered.
Ettingshausen v Australian Consolidated Press Ltd5
The Plaintiff, Ettingshausen was a well-known rugby league football player. A photograph was taken of him after a football game, naked in the shower and his genitals were exposed. The photograph was published in the men’s magazine HQ. He sued for defamation on the basis that the photograph imputed that he was a ‘person whose genitals have been exposed to the readers of the Defendant’s magazine HQ, a publication with a widespread readership’. He argued that the photograph caused people to ridicule him. He was awarded $100,000 in damages plus indemnity costs.
Kirby P stated6:
“The result of legislative inaction is that no tort of invasion of privacy exists. Thus, whilst the value of privacy protection may generally inform common law developments, it would not be proper to award Mr Ettingshausen compensation for the invasion of his privacy, as such.”
Grosse v Purvis7
In this case, the Plaintiff alleged that the Defendant had a persistent course of conduct towards her including waiting or standing around for her near her residence, work or recreation, observing her in life, entering her home and yard, physical contact without consent, repeated phone calls at unreasonable times, offensive behaviour towards her friends and family.
Senior Judge Skoien stated the following when describing the judgment given by the High Court of Australia in Australian Broadcasting Corporation-v-Lenah Game Meats Pty Ltd8:
“However in my view within the individual judgments certain critical propositions can be identified with sufficient clarity to found the existence of a common law cause of action for invasion of privacy.”
He went on to describe the tort of invasion of privacy as follows9:
“It is not my task nor my intent to state the limits of the cause of action nor any special defences other than is necessary for the purposes of this case. In my view the essential elements would be:
(a) a willed act by the defendant,
(b) which intrudes upon the privacy or seclusion of the plaintiff,
(c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities,
(d) and which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.”
He further stated10:
“All of what I have said in relation to the tort of invasion of privacy applies, I consider, if the breach amounts to harassment (or stalking) as it has in this case.”
He stated that he considered harassment and stalking to be synonymous and for both to be aggravated forms of invasion of privacy11.
Senior Judge Skoien awarded the Plaintiff $178,000 in compensatory damages for invasion of privacy, including $50,000 for aggravated damages and $20,000 for exemplary damages, plus interest. He said that damages for trespass and nuisance were also components of the award of damages.
Depending on which jurisdiction you are in, the judgment of Grosse v Purvis may only be persuasive, rather than binding.
Privacy Act 1988 (Cth)
The Privacy Act 1988 (Cth) provides some protection to individuals in relation to the collection, storage, management, and use of their personal information, including credit information by agencies and organisations such as businesses and service providers. Breaches of the Privacy Principles set out by the Act can lead to awards of damages. The Act also provides for the award of damages for breaches of confidence if an individual has confided in a service provider.
Conclusion
Remedies are available for both damage to reputation in the form of defamation laws and also for invasion of privacy or breaches of the Privacy Act 1988 (Cth). For more information on defamation please see our other articles, in particular the article entitled “Elements of Defamation”. If someone does not afford you privacy or breaches your privacy it can lead to damage to your reputation. It may be that you have an action for both defamation and breach of privacy.
