Why do we need an action for breach of privacy?

Think of each of these cases:

Ø  People link up over the internet via twitter, Facebook or other forums to pool information, usually in response to an incident and then carry out some sort of vigilante justice – both online and in the real world. Remember the cat in the bin story from the U.K.   After home security camera footage was posted on the internet, the lady involved was identified and relentlessly pursued both on line and in person.

Ø   Someone sets up a facebook profile in your name and reveals information about you – your sexual preferences, relationship status, political views – which causes you distress and embarrassment.  It may not be defamatory or libellous, or even harassing (because it is true). 

Ø    Photos or a video of you or a loved one are being circulated on line or shared via on-line session without your knowledge.

Ø    Your partner’s ex wife, a bank employee, is involved in a dispute with your husband about child maintenance. Over a four year period she accesses your banking records more than 174 times.  The accessed information includes not only transaction details, but also address,  date of birth and marital status.  No information has been published, distributed, or recorded by her in any way.  However, access to your banking records allows her to determine your financial situation as well as what you are spending your money on.

In each of these cases, most people would expect they would have some personal right to sue the offending parties.    However, this is probably not the case in Australia. 

There is currently no general right to personal privacy in Australia, although the courts seem to be slowly moving in that direction.

 “Woman who threw cat in rubbish bin named as Mary Bale” http://www.news.com.au/newstest2/archive-old-assets/british-woman-who-threw-cat-in-bin-under-police-protection/story-e6frfkyi-1225909603619.  There are criminal laws that cover on-line stalking – such as 359B of the Criminal Code 1899 (Qld).  Stalking is defined to include contacting a person in any way that “would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or (ii) causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.”

See, for example, Applause Store Productions Ltd. & Anor v Raphael [2008] EWHC 1781 (QB) (24 July 2008)

For example,  to the distress of her parents photos of the car crash that killed their daughter were posted to websites, sent via email and posted on a MySpace page set up in their daughter’s name.  A case was brought against the California Highway Patrol for circulating the photos in the first instance.  http://www.city-data.com/forum/california/943389-california-court-vindicates-nicole-catsouras-her.html

For example, the recent ADFA Skype Sex scandal resulted in the two offendors being found guilty of sending offensive material over the internet without consent. However, the female ivolved said her reputation had been ruined and she would be forever known as the “Skype Slut.” http://www.abc.net.au/news/2013-10-14/adfa-skype-sex-cadet-linked-to-second-scandal/5020704

 These facts are based on the decision in Jones v Tsige (2012 ONCA 32) in Canada.  An Ontario Court overturned the decision of the first instance judge striking out the claim on the basis that there was no tort of invasion of privacy in Ontario.  The Court of Appeal allowed the appeal and entered judgment for the plaintiff with damages of Can$10,000. 

[1] “Woman who threw cat in rubbish bin named as Mary Bale” http://www.news.com.au/newstest2/archive-old-assets/british-woman-who-threw-cat-in-bin-under-police-protection/story-e6frfkyi-1225909603619.  There are criminal laws that cover on-line stalking – such as 359B of the Criminal Code 1899 (Qld).  Stalking is defined to include contacting a person in any way that “would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or (ii) causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.”

[1] See, for example, Applause Store Productions Ltd. & Anor v Raphael [2008] EWHC 1781 (QB) (24 July 2008)

[1] For example,  to the distress of her parents photos of the car crash that killed their daughter were posted to websites, sent via email and posted on a MySpace page set up in their daughter’s name.  A case was brought against the California Highway Patrol for circulating the photos in the first instance.  http://www.city-data.com/forum/california/943389-california-court-vindicates-nicole-catsouras-her.html

[1] For example, the recent ADFA Skype Sex scandal resulted in the two offendors being found guilty of sending offensive material over the internet without consent. However, the female ivolved said her reputation had been ruined and she would be forever known as the “Skype Slut.” http://www.abc.net.au/news/2013-10-14/adfa-skype-sex-cadet-linked-to-second-scandal/5020704

[1] These facts are based on the decision in Jones v Tsige (2012 ONCA 32) in Canada.  An Ontario Court overturned the decision of the first instance judge striking out the claim on the basis that there was no tort of invasion of privacy in Ontario.  The Court of Appeal allowed the appeal and entered judgment for the plaintiff with damages of Can$10,000. 

Case Law

 In a recent Queensland District Court involving allegations of profile squatting - an action to strike out a cause of action based on breach of privacy in a statement of claim was rejected (implying an acceptance of the possibility of there being a recognised action for breach of privacy). 

The case involved a dispute between W and P which had been festering for some time.  P allegedly set up a Yahoo! Online originally using a profile picture (taken from a newspaper report) and the name of W’s daughter which was then changed to other derogatory names (e.g. “theuglyone”).  Using this ID, P posted sexually explicit, discriminatory and hostile comments on various Yahoo! Websites.  It took some time for Yahoo! to respond to W’s requests to remove the profile during which time W and his family suffered considerable emotional distress.

P eventually took action against both Yahoo! and W claiming damages for breach of confidence, misleading conduct, intentional infliction of emotional distress and invasion of privacy.  In reply Yahoo! brought an action for the claims to be struck out.

The judge, although referring to the difficulties that the plaintiff may have in establishing the case, held that he “would be very hesitant to strike out a cause of action where the law is developing and unclear.”  In his view, there was at least an arguable case of invasion of privacy.

This decision is consistent with other recent decisions of various courts in Australia – although the issue is still open.   In most instances an alternative remedy has been found so that matter has not had to be finally determined:

·         A recently separated couple were involved in an acrimonious dispute which included the distribution by one party of private sex tapes to a number of third parties, without the consent of the other.  It was held that this was covered by breach of confidence but the possibility of a right to sue for invasion of privacy was noted.  Giller v Procopets [2008] VSCA 236

 Doe v Yahoo!7 Pty Ltd & Anor; Wright v Pagett and Ors [2013]QDC 181 at

In a case involving one of the first NRL players, Sandor Earl, named in the recent ASADA investigation, a newspaper report alleged that he had been injected with peptides at a private medical clinic based on records the newspaper had received from Earl’s doctor.  The football player was able to prevent the publication of the medical records on the basis that they had been provided in breach of the doctor’s duty of confidence to Mr Earl. Earl  v  Nationwide News  Pty Ltd [2013] NSWSC 839 (20 June 2013)

In Raciti v Hughes (1995) 7 BPR 14,837 it was that the positioning of a security camera to film a neighbouring backyard on an ongoing basis, together with lights installed for that purpose, constituted an actionable nuisance, but only in the particular circumstances of that case.  This decision was referred to in a more recent property dispute between neighbours where one of the complaints involved the videoing and taking of photographs of others’ properties.  Again, the case involved whether the statement of claim based on breach of privacy and nuisance should be struck out and the judge in this instance held that it should not – on the basis that the claims were not “unarguable” or “doomed to failure.” Gee v Burger [2009] NSWSC 149  (13 March 2009)

However,  as mentioned, no case has squarely looked at the question for some time.

 So it is not surprising that the creation by statute of a right to sue for a serious invasion of privacy is back on the drawing board.

ALRC Issues Paper “Serious Invasions of Privacy in the Digital Era”  

Although this issue has been looked at repeatedly in the past – it is before the ALRC again who are considering some additional issues, outlined in its “Serious Invasions of Privacy in the Digital Era” Issues Paper.

A new statutory cause of action for invasion of privacy would give individuals the right to sue another individual or companies (including media organisations) directly and recover civil damages from them. A new statutory tort could also extend to invasions of privacy of a more spatial or physical nature (such as the neighbour whose surveillance camera captures your back yard), rather than being restricted to the manner in which organisations deal with their personal information in data form.

 

On 23 September 2011, the Minister for Privacy and Freedom of Information, Brendan O'Connor, released a long-awaited issues paper titled A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy.  That issues paper, which was the subject of heated press coverage prior to its publication, focuses on the recommendations made in the Australian Law Reform Commission (ALRC) 2008 report on privacy law and practice. It also referred to similar proposals made by the New South Wales (NSWLRC) and Victorian Law Reform Commissions (VLRC).  Unfortunately, proposed changes based on the review did not proceed and the issue was referred back to the ALRC.