Further judicial support favouring the development of a tort of invasion of privacy in Australia.
A Victorian County Court judge recently held that a breach of privacy can be an actionable wrong which gives rise to a right to recover damages. As reported by Allens Arthur Robinson in our June Focus 'Jane Doe v ABC: a new privacy action?', in Jane Doe v ABC and ors [2007] VCC 281, Judge Felicity Hampel found that the ABC was liable to pay over $230,000 to 'Jane Doe' because it had reported her real name as part of a radio news item about the sentencing of her husband, who was convicted of her rape. The Judge found that it was established that the broadcast had a significant effect on Doe's recovery from her trauma, inducing post traumatic stress disorder.
Ms Doe's action was brought on the grounds of breach of statutory duty, negligence, breach of confidence, and, significantly, invasion of privacy; she succeeded on all four grounds. In addition to upholding the breach of confidence claim, Judge Hampel held that a breach of privacy is 'an actionable wrong which gives rise to a right to recover damages according to the ordinary principles governing damages in tort'. In coming to this conclusion, Judge Hampel considered that Ms Doe's application presented 'an appropriate case to respond, although cautiously, to the invitation held out by the High Court in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 to determine a case on grounds of breach of privacy. An appeal has been lodged by the ABC.
The above case builds on another relatively recent decision (previously reported) in Grosse v Purvis [2003] QDC 151, where Judge Skoien awarded $178,000 damages to the plaintiff, following eight years of harassment and stalking by the defendant. Here too, the Court proceeded on comments made by the High Court in Lenah Game Meats that there was no authority preventing the development of a tort of invasion of privacy in Australia. His Honour held that the essential elements of the tort were found to be:
- a willed act by a person;
- which intrudes upon the privacy or seclusion of the plaintiff;
- in a manner that could be considered highly offensive to a reasonable person of ordinary sensibilities; and
- which causes the plaintiff mental, psychological or emotional harm or distress, or which prevents or hinders the plaintiff from doing any lawful act.
Skoien J made use of US authority in his judgment in formulating the elements of the tort which recognises such a principle. An appeal was lodged in the Queensland Court of Appeal in July 2003, but an agreement to dismiss the appeal was reached in August 2003.
The Issues Paper issued by the Australian Law Reform Commission (ALRC) poses as one of its questions whether a cause of action for breach of privacy should be recognised by the courts or the legislature in Australia, and the issue will also be examined by the NSW Law Reform Commission's current Inquiry into the legal framework for the protection of privacy law. It remains to be seen how this issue will continue to develop. A Discussion Paper based on the ALRC's Issues Paper and submissions it received in relation thereto, is expected to be released in September 2007.
