In other words, if unauthorized video recording or photographing of someone engaged in a private action takes place, there is no current legal right to prevent publication based on a breach of privacy.



That is not to say that the publication of such video recording or photographs cannot be prevented through existing legal rights such as nuisance, trespass, break of confidence or defamation including a number of Commonwealth and State Acts which regulate the collection of private data such as the Surveillance and Listening Devices legislation and the Telephonic Communications legislation.

The problem with using existing legal rights to prevent breaches of personal privacy is the complexity and detail required by ancient legal causes of action like trespass, nuisance and injurious falsehood. This means that the cost of enforcing a person's right to privacy and preventing unauthorized disclosure of video footage, photographs, personal diaries and memoirs is the cost and time which such enforcement action takes.

What would be required to create a new separate, right of protection of privacy in Australia?

There are three types of privacy which an individual may wish to have protected. The first is private data collection. This right is already protected in Australia. There is a large volume of data protection legislation regulating both public and private corporations in Australia as to how private data is collected and used. Examples are the Privacy Act 1988 (Cth.), the Data Protection Act 1999 (Vic.) and the Information Privacy Act 2000 (Vic.).

The second area is unauthorized surveillance. This right is also protected at present. Australia prohibits the use of surveillance devices to spy on its citizens unless authorized by judges. Examples of the statutory protections are the Listening Devices Act 1977 (Cth.), the Telecommunications (Interception) Act 1979 (Cth.), and the Surveillance Devices Act 1999 (Vic.).

The third area of privacy is the right to be left alone. This is the area where, unfortunately, there is no clear discreet right of action to protect an individual's privacy in Australia. The protection must be via the existing, often ancient, legal rights set out above.

Australia is being left behind in developing a discreet law of personal privacy.

For instance, the courts in New Zealand have acknowledged the existence of a separate legal right to privacy which was seen in New Zealand as a natural progression of the tort of intentional infliction of emotional distress by the public disclosure of private facts: see Tucker v. News Media Ownership Limited [1986] (New Zealand High Court) and P v. D [2000] (Court of Appeal of New Zealand). In Hosking & Hosking v. Simon Bruiting & Anor [2004] (Court of Appeal of New Zealand), the court clearly held that there was a separate right of action to protect individual privacy as follows:

- The Plaintiff must be able to show a reasonable expectation of privacy in respect of the information or material which the Defendant has published or wishes to publish;

- The Plaintiff will have to overcome a defence to an action of invasion of privacy that the information or material published about the Plaintiff's private life is a matter of legitimate public concern; and

- The remedy for invasion of privacy is primarily an award of damages. Although prior restraint by injunction will be possible, it is likely to be confined to cases which are both severe in likely effect and clear in likely outcome.

In the United Kingdom, the courts have come to a similar conclusion but via a different legal route. Whilst the House of Lords has now held that individuals do have a right to protect their privacy, they have not established a separate legal right of action based exclusively on privacy as have New Zealand courts.

Rather, U.K. courts have extended an existing course of action called breach of confidence to cover situations where it can now be used as an effective remedy for the unjustified publication of personal information. Examples are Naomi Campbell v. MGM Ltd [2003], and Michael Douglas v. Hello! Ltd [2001]. United Kingdom courts have extended the underlying value which existing law protects.

Instead of the right of action in breach of confidence being based upon the commercial duty of business good faith applicable to confidential personal information and trade secrets alike, the House of Lords and Court of Appeal in the U.K. have focussed on the protection of human autonomy and dignity and have now given to individuals the right to control the dissemination of information about a person's private life and the right to esteem and the respect of other people.

It would appear that the situation may be changing in Australia.

In a recent decision by the High Court of Australia in Australian Broadcasting Corporation v. Lenah Game Meats Pty Ltd [2001], each member of the High Court Bench decided that earlier Australian law suggesting that there was no right to a protection of privacy should not be followed. All of the High Court judges appeared to be aware of the legal developments in other common law jurisdictions like New Zealand and the United Kingdom and the increasingly intrusive nature of the media into the lives of individuals. All of the High Court judges (with the exception of Kirby, J.,), seemed happy to assert that whilst Australian law may be prepared to recognise a separate legal right to protect privacy in the future, that position has not occurred to date and had not been established in the current case.

The Chief Justice, Gleeson, C.J., even went so far as defining what an Australian law of privacy might involve by stating that the test would be whether a reasonable person would regard the publication of personal information to be an unreasonable, reprehensible and unwarranted intrusion into the private life of an individual. If this objective test was satisfied, then the Australian courts would need to undertake a balance of the public interest in the freedom of the press compared to the public interest in the right of respecting the privacy and dignity of individuals.

Since the Lenah Game Meats Case, the Queensland District Court has taken up the opportunity created in the High Court judgments and has decided that Queensland law does provide an actionable right to damages based upon an individual's right to privacy: see Gross v. Parvis (Senior Judge Skokie).

A separate right to protect privacy would make the prevention of unauthorized disclosure of personal information more affordable and much simpler than having to pursue the arcane legal remedies of nuisance, trespass, injurious falsehood, defamation etc which currently exist in Australia.

Legal commentators believe that Australia will fall into line with its common law neighbours in New Zealand and the United Kingdom in the near future in creating this new and important legal right.