Minutes/Policy Development Committee/Privacy Tort WG/2014-01-28

Meeting Minutes

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Attendance

The main difficulty in trying to define a tort of privacy is in how it can be done without harming freedom of expression and press.
The Australian Law Reform Commission (ALRC) does not seem to have come up with what they thought was a perfect solution.
We cannot take much guidance from the US without their bill of rights and the history behind it.
The ALRC, NSW Law Reform Commission (NSWLRC) and Victorian Law Reform Commission (VLRC) have recommended a dedicated tort of privacy.
Will have to read over the proposals and see what has been recommended in detail.

Suggestion that we try an approach that's similar to fair use:
- Take the principle that privacy is by default an exclusive right.
- Then build exceptions along the lines of fair use.
- The Courts could take into account whether the intrusion into privacy was reasonable, according to similar points as fair use.
- Examples of grounds for consideration would be: character and purpose of the intrusion, the nature of the activity/area/etc being intruded into, the extremity of the intrusion.

Include blanket exemptions for Government as a victim, etc.
- Clarifying that this would prevent the Government from bringing action; the Government would still be liable for breaching privacy under the tort.
- The Government would retain certain exemptions, such as legitimate law enforcement.

Need to consider how tests we develop might be twisted down the line.
- Future proofing is necessary.

Measuring remedies is going to be very difficult.
The aspect of permanent publication can't be resolved by an injunction.
Allowing an intrusion to occur and then penalising it if it is held to be one could be a counter-balance to free speech being infringed.
Perhaps treat it like defamation — make it a matter for the courts after publication/infringement.
Could perhaps introduce a declaration that is issued before a breach that would increase damages if after the fact a breach was held to happen.
- Basically a "if you publish this, and it is a breach of privacy, you will have to pay more money."
That would arguably be tantamount to an injunction anyway.

Needs to be more focus on personal privacy as opposed to organisational and commercial.
- Minimise the exclusions for the latter two.
What is corporate/commercial privacy?
- It's not necessarily their privacy, but their impact on personal privacy.
Typical case of commercial privacy would be ABC v Lenah Game Meats
- Activists broke into a processing plant where animals were mistreated.
- Gave footage to the ABC.
- An injunction was sought, but denied, because the ABC wasn't involved.
- The Court declined to create a tort of privacy and ruled on trespass to land solely.
Commercial privacy would probably be covered under trade secrets.
- Trade secrets are the default protection for a lot of corporate activity.
General agreement that corporations should be excluded and have no action for breach.
Corporate transparency is something the US Pirates have adopted.
Natural persons and natural persons only.

There is definitely going to be an overlap, but not all trespasses will be intrusions into privacy, and not all privacy intrusions will be trespasses.