Violation of privacy has not so far, at least under that name, received explicitly recognition as a tort by the British courts… our courts have been content to grope forward cautiously along the grooves of established legal concepts like nuisance and libel, rather than make a bold commitment to an entirely new head of liability. ' Prof J. G. Fleming, The Law of torts, 9th edn. , LBC, 1998 Discuss and evaluate the ways in which courts have to date, endeavoured to afford a remedy to individuals whose privacy has been invaded and consider whether a tort of invasion of privacy might be developing in Australia.
Australian courts have generally been hesitant to develop a tort of privacy comparable to that which exists in other common law jurisdictions such as New Zealand and the United States. The courts have often suggested that if there were circumstances in which the argument could reasonably be raised there would be room for the tort of privacy to develop. 1 The issues which the courts have attempted to balance are freedom of communication laws along with the right to privacy in a surveillance society and modern human rights context.
The leading case in the area which discusses and evaluates the tort of privacy in Australia is Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd. The case forms a crucible for the discussion of privacy in Australia and the way the courts have attempted to provide remedies under other categories of law but also shows the way in which the courts have deliberately avoided making a definitive and clear statement on the subject. Lenah2 concerned hidden video cameras installed in licensed possum killing and processing abattoirs by trespassers which was then supplied Animal Liberation who then passed it on the ABC.
The operators Lenah3 applied to the Tasmanian supreme court for an injunction on the airing of the footage. The application was dismissed but the decision to refuse the injunction was reversed by the Full Court in appeal. The High Court overturned this decision on appeal citing the implied constitutional freedom favouring the discussion of animal welfare as a matter of governmental and political concern. The abattoir submitted to the court that the broadcasting of the video would constitute an actionable tort of the invasion of its privacy. 4 There were many circumstances according to the court which did not lend to a tort of privacy.
Gleeson CJ surmised that the information was not of a nature which can be regarded as confidential and did not become so just because it was occurring on a private property. Secondly, there was no relationship of trust and confidence between the respondent and the people to made or received the film. Finally, there was also the issue of the Lenahs position as a corporation and whether the privacy of a corporation should be protected. 5 Lenah6 also allowed for a discussion of Victoria Park7 and its impact on the development of the tort of privacy or lack thereof.
Kirby J stated: 'Since the majority decision of this Court in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor8, it has generally been accepted that a cause of action for breach of privacy does not exist in the common law of Australia9, any more than it existed in the common law of England10. ' It was the courts discussion of Victoria Park11 which 'opened the door' for the development of tort of privacy. Furthermore, Gummow and Hayne stated (with whom Gaudron J agreed) that 'Victoria Park does not stand in the path of the development of…. a cause of action (for invasion of privacy).
' Therefore, the judgment of Lenah12 swept away the seeming obstacle Victoria Park13 which had limited the development of a tort of privacy and cleared the way for the development of such a tort. This opening was taken up by the court in Grosse v Purvis14, which arose from the fact that the plaintiff stalked or harassed the plaintiff for a number of years. Appling the view in Lenah, the court decided that Victoria Park15 did not stand in the way of the development of the tort or privacy. Judge Skoien stated: 'It is a bold step to take… but a logical and desirable step. '16
The decision in Purvis17 marked a more bold and decisive step towards developing a limited tort of privacy. Decisions by other state jurisdictions however display the general lack of consensus on the issue in Australia law and that the courts are still content to deal with torts involving an invasion of privacy under existing torts. This in many ways confers with Professor Fleming's analysis of the situation in Australia at present. 18 For instance, the decision in Giller19 was dismissive of the cause of action for breach of privacy. 20 Like Grosse21, the case involved the aftermath of the breakdown of a de facto relationship.
The female plaintiff made a number of claims, the most relevant for present purposes related to the distress and humiliation she felt was a result of the defendant showing and threatening to distribute a video of the parties engaging in sexual activities. 22 Gillard J dismissed all three causes of action: breach of confidence, intentional infliction of mental harm and breach of privacy. Gillard J accepted the trust and confidence of the relationship between the parties and that the showing of the video footage would be a breach of confidence however emphasized that the cause of action for breach of confidence was an equitable.
Gillard J went on to state that the law 'has not developed to the point where the law in Australia recognizes an action for breach of privacy'23. However it could be said that Gleeson's J argument in Lenah could have come into play here as there was a relationship of trust and confidence and a clear private act. 24 The decision in Giller25 emphasizes the inadequacy of action for breach of confidence and the rule in Wilkinson26 in providing effective redress in lieu of a tort of privacy. It also reveals the need for a discussion on the place of privacy laws in a hyper surveillance society.