On 16 February 2023 the Australian Government Attorney-General’s Department released its Privacy Act Review Report 2022 (the “Report”) on Australia’s privacy laws. The review covered a wide range of areas largely relating to data protection issues but also one of the terms of reference is whether a statutory tort for serious invasions of privacy should be introduced into Australia.
One of 116 recommendations to come out of the report is the proposal that there should in fact be a statutory tort for serious invasions of privacy. This is not a new recommendation as it was first proposed by the Australian Law Reform Commission in 2014 (ALRC Report 123). Indeed it is widely recognised, as the Report acknowledges, that existing laws or causes of action such as breach of confidence or defamation do not provide sufficient redress for a serious invasion of privacy. When considering what would be the best model to adopt the preferred option is the ALRC Report 123 model which examined various civil causes of action for breach of privacy including in the UK, New Zealand, Canada and USA.
Given the impact that the proposed statutory tort will have on the media it is perhaps not a surprise that the Report records that media industry submitters were against all options for a statutory tort “on the basis that it would have a detrimental or ‘chilling’ effect on freedom of expression and journalism in Australia”. There are though certain requirements that a claimant would need to demonstrate if the ALRC Report 123 model is adopted including for example any invasion being subject to a balancing exercise where the court must be satisfied that the public interest in privacy outweighs any countervailing public interests.
There are of course many other recommendations in the Report for improvements to data protection law. For example introducing a right to erasure and changes to the time frame for reporting obligations for data breaches to name but a few.
Louise Prince, Senior Associate in the Firm’s Reputation Protection and Privacy Team said “It seems that change may now be on the horizon which can only be a positive for individuals in Australia. It will be interesting to see what happens next and whether the Government will be prepared to push through with this long awaited reform in order to enhance the rights of individuals for breaches of their privacy.
The Report can be found here: Privacy Act Review Report 2022 (ag.gov.au)