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Article Excerpt
[Recent decisions in the House of Lords and the New Zealand Court of Appeal have recognised forms of protection of personal privacy in the United Kingdom and New Zealand respectively. With the High Court clearing the way for the development of such a tort in Australia, this article addresses the potential form that such a development could take. The need to take into account existing laws, including the constitutional freedom of communication concerning governmental or political matters, should result in the development of a tort and corresponding defences which are appropriately adapted to an Australian context.]
CONTENTS I Introduction II Lenah Game Meats: The Removal of an Obstacle III International Experience A United States: Genesis of the Tort of Invasion of Privacy B United Kingdom: Metamorphosis of a Cause of Action C New Zealand: Protection of Private Facts IV Developments in Australia V Protection of Privacy in Australia? A Impetus for Change B Intentional Infliction of Mental Harm: A Viable Alternative? C Potential Form of the Tort D Defences 1 Existing Indicators 2 Private Interest: Consent 3 Public Interest 4 Other Defences VI Conclusion
I INTRODUCTION
Australia is a signatory to the International Covenant on Civil and Political Rights, (1) art 17 of which requires contracting states to ensure that their domestic legal systems provide adequate protection against interference with privacy. (2) Although legislation has been enacted at federal and state levels protecting the privacy of information (3) and communications, (4) it has long been asserted that the common law of Australia did not recognise an enforceable right to personal privacy. (5) However, in 2001 the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (6) rejected this assertion and entertained the possibility that the common law might develop to recognise a tort of invasion of privacy. (7) There have since been mixed messages from lower courts concerning the development of the tort in this country, with cases both supporting (8) and resisting (9) its recognition.
What is it about personal privacy that makes its protection problematic? A major difficulty lies in defining what 'privacy' means--the concept lacks precision. (10) An associated problem exists in striking the appropriate balance between privacy interests and free speech interests, (11) an issue which will involve a determination of the nature and scope of appropriate defences, in particular any public interest defence.
This article discusses the possible development of a tort of invasion of privacy in Australia. After a brief reference to the views expressed by the High Court in Lenah Game Meats, it traces the development of privacy torts in the United States, United Kingdom and New Zealand. The article then examines the Australian cases subsequent to Lenah Game Meats that have considered privacy, before addressing the various live issues that are involved in the recognition of the tort, including the scope of the defences.
II LENAH GAME MEATS: THE REMOVAL OF AN OBSTACLE
It was long believed that the common law of Australia, like that of the United Kingdom, did not recognise a right to privacy. This view was traditionally supported by reference to dicta in Victoria Park, (12) which concerned an attempt by the owner of a racetrack to prevent the defendants from observing and broadcasting the races and race information displayed at the track from the vantage point of a platform constructed on adjacent land. The plaintiff based its claim on various grounds, including nuisance, to which Latham CJ remarked '[h]owever desirable some limitation upon invasions of privacy might be, no authority was cited which shows that any general right of privacy exists.' (13)
More recently, however, the High Court in Lenah Game Meats rejected the assumed authority of the Victoria Park case. Gummow and Hayne JJ (with whom Gaudron J agreed) bluntly stated their view that 'Victoria Park does not stand in the path of the development of ... a cause of action [for invasion of privacy].' (14) Kirby J was of a like mind: 'It may be that more was read into the decision in Victoria Park than the actual holding required.' (15) Callinan J summed up the 'narrow majority' decision as being 'a product of a different time', (16) which his Honour described as both 'conservative' and having 'the appearance of an anachronism'. (17) His Honour concluded that the decision in Victoria Park clearly had no application in a case of invasion of privacy. (18)
Therefore, while Lenah Game Meats swept away a major obstacle to the recognition of a right to privacy at common law, most of the judges were content to rest at that point. Only Callinan J was prepared to go further and express support for the recognition of a right to privacy, at least for the benefit of individuals as opposed to corporations:
It seems to me that, having regard to current conditions in this country, and developments of the law in other common law jurisdictions, the time is right for consideration whether a tort of invasion of privacy should be recognised in this country, or whether the legislatures should be left to determine whether provisions for a remedy for it should be made. (19)
Thus, while the High Court in Lenah Game Meats did not make the leap to recognising a tort for invasion of privacy, it is fair to say that it cleared the way for the subsequent development of such a tort.
III INTERNATIONAL EXPERIENCE
It is instructive to examine the experience in three overseas common law jurisdictions, which may influence the future development of a tort of privacy in Australia. (20)
A United States. Genesis of the Tort of Invasion of Privacy
In 1890, Samuel Warren and Louis Brandeis published a seminal article (21) which argued that the collection of predominately United Kingdom cases that they had assembled (22) in fact reflected an intention to protect personal privacy. The significance of this 'right to be left alone' (23) was expressed in terms that may be considered just as relevant today:
The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.... The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world ... (24)
The problem, as the authors saw it, was that if the courts continued to rely on artificial applications of existing causes of action, they would be unable to deal with all instances of breach of privacy. (25) This was particularly so considering developments in technology, which at the time included the development of photography as a tool a stranger could use to surreptitiously invade privacy in circumstances beyond the reach of existing causes of action. (26) Warren and Brandeis sought to ameliorate any fears of a far-reaching doctrine by suggesting various limits: that privacy would be trumped if a publication were of public or general interest; that publications which would be privileged under defamation law would have similar protection against any action for breach of privacy; that, like slander, oral breaches of privacy would not be actionable in the absence of special damage; and that any right to privacy would cease when the material was published by the individual or with his or her consent. (27) Although the article initially met with a cool reception, (28) it inspired recognition of a common law right to privacy, first in Georgia (29) and then throughout the United States. (30) It was sufficiently well recognised by 1939 that it had found its way into the Restatement of Torts (1939). (31)
Seventy years after Warren and Brandeis' article was published, William Prosser reviewed the body of cases protecting privacy (32) and suggested that they in fact represented four separate torts: unreasonable intrusion upon the seclusion of another, public disclosure of private facts, displaying another in a false light before the public, and appropriation of another's name or likeness. (33) This four-way formulation gained judicial acceptance, (34) and in 1977 was adopted in the Restatement (Second) of Torts [section] 652A (1977) ('Second Restatement'). This section refers to four specific components, (35) which provide that liability for invasion of privacy arises where one person:
1 intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another (either as to person or private affairs or concerns) if the intrusion would be highly offensive to a reasonable person of ordinary sensibilities: [section] 652B;
2 appropriates to his or her own use or benefit the name or likeness of another: [section] 652C;
3 gives publicity to a matter concerning the private life of another which is matter of a kind that (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public: [section] 652D; or
4 gives publicity to a matter concerning another which places that person before the public in a false light where (a) that false light would be highly offensive to a reasonable person and (b) the publisher knew of or recklessly disregarded the falsity of the matter and the false light in which the other would be placed: [section] 652E.
The Second Restatement states that all four instances of invasion of privacy are subject to the same absolute privilege defences that apply to defamation, including parliamentary (legislative) and court privilege and consent, (36) as well as conditional privileges (such as reports of public proceedings, executive officers performing official duties, protection of defendants' interests, reports to government authorities concerning mental health, and reasonable investigation of a claim against the defendant). (37)
These torts have enjoyed a less than spectacular existence. The unreasonable intrusion tort, for example, was recognised in almost all jurisdictions; however, until recently it had proved to be 'toothless' against media defendants in particular, with few surviving motions for summary judgment. (38) The United States Supreme Court has held that intrusive newsgathering is 'not without its First Amendment protections' as an essential antecedent to publication. (39) At the same time, American courts have maintained that it does not provide the news media with general immunity during newsgathering: '[t]he First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office.' (40) More recently, the courts have indicated that the balance may have tipped against intrusive newsgathering and in favour of privacy. (41) Intrusion no longer needs to be upon 'seclusion', and may be in semi-private places like restaurants (42) or workplaces. (43) Further, it has been recognised that intrusion need not be physical and may be by electronic means. (44)
By contrast, the courts have been more willing to uphold First Amendment rights in preference to preventing an invasion of privacy in the form of the public disclosure of private facts. The elements of this tort are not uniform in all jurisdictions, but the Second Restatement [section] 652D represents a typical formulation. 'Newsworthiness' and consent are the principal defences.
Another formulation of this tort that has wide support is that of Prosser and Keeton: (a) a public disclosure; (b) of private facts; (c) that is highly offensive to a reasonable person; and (d) is not newsworthy. (45) Courts have interpreted the 'newsworthiness' defence increasingly widely. (46) These interpretations have included:
* determining what is of legitimate public concern by distinguishing between information to which the public is entitled and information that would not be the concern of a reasonable member of the community with decent standards; (47)
* requiring the information to be of public interest and 'decent', together with a logical nexus between the complainant and the matter of public interest; (48)
* taking into account the social value of the information, the depth of the intrusion into private areas and the extent to which the complainant has placed himself or herself in the public eye, subject to the information being 'decent'; (49)
* leaving it to the media to decide whether the facts are newsworthy; (50) and
* viewing all publications as newsworthy by not recognising a tort of public disclosure of private facts. (51)
By regarding the First Amendment as an effective trump factor in many if not most cases, (52) the tort of disclosure of private facts has been described as having been rendered 'effectively impotent.' (53) One commentator has attributed the ineffectiveness of the tort to 'social changes in the relationships between the individual and others, evolution in social values, and profound shifts in the nature, function, and organization of public communication.' (54)
B United Kingdom: Metamorphosis of a Cause of Action
In Kaye v Robertson, (55) a journalist and a photographer gained access to a hospital room where a television star was recuperating from serious head injuries (sustained when he was struck by a tree branch in a storm). He had no memory of the events and was not in any state to either consent to an interview or to having his photograph taken. (56) The star sought to restrain publication based on a range of causes of action, including trespass to the person, defamation, passing off and malicious falsehood. (57) There was no attempt to rely on breach of confidence, most likely on the basis that the journalist could not be under an obligation of confidence in the circumstances. In the course of upholding an interlocutory injunction, on the ground that it was a malicious falsehood to claim that the plaintiff had given his consent, the English Court of Appeal made it clear that the English common law did not recognise a right to privacy, and that this could only be done by the legislature and not by the courts. Bingham LJ remarked that:
This case none the less highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens.... The defendant's conduct towards the plaintiff here was 'a monstrous invasion of his privacy' ... If ever a person has a right to be let alone by strangers with no public interest to pursue, it must surely be when he lies in hospital recovering from brain surgery and in no more than partial command of his faculties. It is this invasion of his privacy which underlies the plaintiff's complaint. Yet it alone, however gross, does not entitle him to relief in English law. (58)
A catalyst for change since the Kaye decision has been the enactment of the Human Rights' Act 1998 (UK) c 42 ('HRA'), which requires English courts to take the ECHR into account when making determinations. (59) Article 8 of the ECHR provides a 'right to respect for ... private and family life, ... home and ... correspondence.'
A further sign of change came with the decision of the European Commission of Human Rights in Earl Spencer v United Kingdom, (60) a case arising from press reports concerning bulimia and mental health problems experienced by Countess Spencer, including photographs taken at a private clinic by means of a telephoto lens. The European Commission of Human Rights ruled that English law had no need for a distinct privacy tort to grant a remedy, because the action for breach of confidence could be developed to embrace cases involving invasions of privacy. (61)
The elements of the action were usefully summarised in Coco v A N Clark (Engineers) Ltd, (62) a trade secrets case, as follows:
1 the information must have the necessary quality of confidence;
2 the information must have been imparted in circumstances importing an obligation of confidence; and
3 there must be an actual or threatened unauthorised use or disclosure of the information to the detriment of the confider. (63)
Two significant developments in the law concerning breach of confidence have helped to facilitate its use in relation to personal privacy. The first was the finding that the requirement that the information have the necessary quality of confidence was not limited to trade or business information, but could include personal information. (64) At first this meant the secrets of a marital relationship. (65) The marital relationship was well-recognised and well-defined, involving mutual trust and confidence, and a clear policy could be discerned to protect such confidentiality with the object of preserving the relationship.
However, the category of relevant relationships was then extended to include those involving a sexual relationship. (66) As one judge observed: 'To most people the details of their sexual lives are high on their list of those matters which they regard as confidential. The mere fact that two people know a secret does not mean that it is not confidential.' (67) The relevant information only ceased to be capable of protection as confidential when it was in fact known to a substantial number of people. (68) Thus, while the nature of the information was important, the category of personal relationship was now left open-ended and was no longer a relevant factor. (69) The information could now be judged confidential, even where the parties were friends, enemies or strangers, if the relationship involved shared information that was deemed to be confidential, such as details of sexual relations.
The second development lay in the equitable recognition that the obligation of confidence is not restricted to the original confidante, but may also extend to third parties in whose hands the confidential information may come to reside. (70) A duty of confidence may arise whenever a third party receives information in circumstances in which he or she either knows, or ought to know, that the information is subject to a duty of confidence. (71) For example, the third party might know that the information is received in breach of a duty of confidence, or received in 'certain circumstances, beloved of law teachers', such as where an obviously confidential document is wafted by an electric fan into a crowded street or dropped in a public place. (72)
Accordingly, the doctrine may extend to actual or intended disclosure by third parties such as the media. Thus, courts have been prepared to act where the media had surreptitiously acquired information that it knew or ought to have known was held secret. This was shown in two cases involving photographers gaining access to restricted areas in order to obtain photographs of people or scenes that others wanted to keep confidential. (73) In both cases, the court referred to the surreptitious conduct of the photographer as indicative of his knowledge that the information being acquired was confidential. (74) The notion of the surreptitious conduct being indicative of a breach of confidentiality then came to be equated with privacy:
If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would ... surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. (75)
In so doing, the law protected what might be called a right to privacy, although the name given to the cause of action was breach of confidence. (76)
The emphasis, therefore, had shifted from the obligation of confidence, represented by the second element in the Coco formulation, to the nature of the information and the means by which it had been obtained.
Perhaps the closest the United Kingdom has come to the recognition of a right to privacy per se was the appeal against an interlocutory injunction in Douglas v Hello! Ltd. (77) The case concerned photographs taken surreptitiously at the wedding of actors Michael Douglas and Catherine Zeta-Jones. An exclusivity deal covering photographs had been reached with a magazine, and great care was taken in warning guests and others that unauthorised photography was not permitted. An interlocutory injunction was granted to restrain a rival magazine from publishing the photographs. (78) On appeal, Sedley LJ went so far as to suggest that United Kingdom law should now recognise a right to privacy: 'The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.' (79)
The other members of the Court of Appeal did not agree. Brooke LJ thought that the claim to privacy was not a strong one, (80) and that instead the claimants were likely to establish that the publication should not be allowed on the grounds of confidentiality. (81) Keene LJ thought that whether a liability was described as being a breach of confidence or as a breach of a right to privacy might be little more than deciding what label was to be attached to the cause of action. (82) At the eventual trial, the case was decided on the basis of the commercial value of the photographs to the media. (83) The elaborate steps taken to exclude unauthorised photography meant that the photographs had been acquired by the defendant in circumstances in which they knew or ought to have known that they were subject to an obligation of confidence. (84)
Statements in two recent cases indicate how far the United Kingdom cases have moved from the original rationale of the action for breach of confidence as a doctrine binding the conscience of a confidante who is subject to an obligation of confidentiality. In Venables v News Group Newspapers Ltd, (85) the claimants, Jon Venables and Robert Thompson, were the notorious 10-year-old murderers of toddler James Bulger. The court held that they were to be released from custody when they turned 18. The plaintiffs sought to prevent the defendant newspapers from disclosing information as to their identity and whereabouts. (86) It was held that the right to confidence protecting against the disclosure of their identity should be placed above the right of the media to freedom of expression, due to the risk to the claimants' lives. (87) Butler-Sloss P held that the protection of confidential information could be extended, even if it meant imposing restrictions on the press, 'where not to do so would be likely to lead to the serious physical injury, or to the death, of the person seeking that confidentiality, and there is no other way to protect the applicants'. (88)
The other case, A v B plc, (89) concerned a married professional footballer who had had sexual relations with two women, following which the two women took their story to a newspaper. In the absence of an express agreement to keep the affairs confidential, the question arose as to whether confidentiality could be used as a basis for an injunction restraining publication of the story. In the course of setting aside an injunction, the English Court of Appeal promulgated a series of guidelines designed to allow judges to decide similar applications without being hampered by debate over the relevant authorities. (90) These guidelines acknowledged the particular importance of freedom of the press. They also provided that '[al duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know that the other person can reasonably expect his privacy to be protected.' (91) In the case at hand, it was held that the degree of confidentiality to which A was entitled was very modest. (92) The sexual relations here were part of non-permanent relationships outside marriage with women who did not want their relationships to remain confidential. (93)
The Court of Appeal also made this curious observation:
It is most unlikely that any purpose will be served by a judge seeking to decide whether there exists a new cause of action in tort which protects privacy. In the great majority of situations, if not all situations, where the protection of privacy is justified ... an action for breach of confidence now will, where this is appropriate, provide the necessary protection. This means that at first instance it can be readily accepted that it is not necessary to tackle the vexed question of whether there is a separate cause of action based upon a new tort involving the infringement of privacy. (94)
Behind this 'vexed question', however, lurk some issues of importance, including the kind and extent of publication that is protected, the legitimacy of awarding compensatory damages for breach, and whether other kinds of damages are suitable.
Breach of confidentiality in the United Kingdom has therefore migrated away from an obligation of confidence to being a doctrine based on the surreptitious means of acquiring private information, thus extending to situations where either:
1 disclosure would be likely to lead to serious physical injury or death of the claimant, and seeking relief from...
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