Commonwealth Government's Issues Paper:
"A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy"
25 November 2011
ELEMENTS OF THE CAUSE OF ACTION
This submission is made by News Limited and SBS and is in addition to the separate submissions
made by each of the signatories.
While the submissions address the question of whether or not a new statutory cause of action is
needed, this submission addresses in more detail the possible elements of a cause of action
canvassed in the discussion paper.
The test for an invasion of privacy
The discussion paper proposes that the plaintiff must establish there had been in the
circumstances a reasonable expectation of privacy.
While we do not object to this first limb of the test for a cause of action, it is important to make
the qualification that any expectation of privacy must be measured in the relevant circumstances
and by reference to the community standards existing at the relevant time.
In our view, care should be exercised to ensure a reasonable expectation of privacy is not
extended too far beyond the "person" and "home" into spheres where individuals act within the
community. While there may be occasions where there is a reasonable expectation of privacy in a
public place, for example, where a person is in a situation of extreme grief during a car accident or
bushfire, the prima facie situation should be that individuals in a public place do not have a
reasonable expectation to privacy unless there is a compelling reason to the contrary.
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Observing and even scrutinising the public acts of an individual should generally not attract an
expectation of privacy. Communities are made functional by individuals observing, commenting
on and interacting with others.
“highly offensive” as an appropriate standard for a cause of action
We agree that the higher threshold of “highly offensive”, limiting the availability of the action to
the most egregious cases of invasion of privacy as proposed by the ALRC and VLRC is appropriate.
An additional limb should also be added to ensure it is an objective rather than a subjective test.
It must be highly offensive to a person of ordinary sensibilities.
We would be concerned that the lower thresholds previously suggested would be likely to lead to
a significant explosion of litigation and a chilling effect on freedom of expression and social
intercourse through emerging media.
Media and in particular social media are to be encouraged as facilitating a greater sense of
community, informed citizens and debate not merely of matters of high public concern but also
social norms and moves.
As a practical matter, it would be expected that if there is an action, potential litigants will not
only seek to extend the spheres in which there is a reasonable expectation of privacy, to those
traditionally thought to be public but will also seek to water down the threshold of what is “highly
offensive”.
In our submission, any retreat to a lower threshold is totally inappropriate and should be avoided
by putting into the legislation guidelines as to what is could be possible types of invasion that is
considered to be “highly offensive”.
Various public interests
It is essential, the court is required to determine whether the public interest in maintaining the
claimants privacy outweighs other matters of public interest, including the public interest in
allowing and protecting freedom of expression and the interest of the public in being informed
about matters of public concern.
The law reform commission proposals suggest that a court could consider public interest matters
in a case in two ways; by integrating a consideration of the public interest as part of the cause of
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action or through consideration of a “public interest defence that would be put and proved by the
defendant.
Public interest Integrated with the cause of action versus a public interest defence
We support the recommendation of the ALRC and NSWLRC that the public interest should be an
element of the cause of action rather than the VLRC recommendation that public interest should
instead constitute a defence.
In our view, the burden of establishing the public interest should lie with the plaintiff to establish,
given that the plaintiff by asserting the conduct is "highly offensive" is making an allegation that
the relevant conduct outside the accepted norms and mores of the community.
Further, the onus should be on the plaintiff to do more than establish the public interest but
actually displace the public interest since, in many circumstances, an intervener on behalf of that
public interest (beyond the proposed defendant, who may not have the ability or resources to
establish the public interest) may not emerge or be available.
The plaintiff must establish the privacy interest significantly outweighs any competing public
interests, including the public interest in allowing and protecting freedom of speech or expression
and the interest of the public in being informed about matters of public concern.
The ALRC’s proposed test does not make it clear that the onus rests with the plaintiff.
If the onus fell on the defendant, then the whole course of any proceedings would be significantly
different, and would enable some plaintiffs to maintain an unmeritorious action.
More importantly, such an approach would signal to the courts that priority is being given to the
invasion of privacy cause of action over other public interests including freedom of expression.
It should be remembered that, at present, no written right of freedom of speech or expression
exists in Australian law. The closest facsimile to such a right is the implied freedom of political
communication found in the line of High Court cases emanating from Nationwide News Pty Ltd v
Wills1 and in piecemeal recognition in some legislation. Accordingly, the priority in the law of
such interests are fragile and easily displaced by a legislative instrument.
Given the lack of clear priority for freedom of speech, the question of who bears the onus in
relation to proof of public interest cannot be underestimated.
1
(1992) 108 CLR 681
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In contrast, in the UK and USA, fundamental freedom of speech rights mean privacy actions are
determined in the light of those rights.
The analytical process begins with a presumption in favour of the public rights to know and share
information, promoting an informed community and those free speech rights and presumptions
influence judicial and community attitudes towards their interpretation of the cause of action and
the proper boundaries of private interests.
Without a clearly articulated, expansive and enforceable right of freedom of expression or
speech, it is likely that the Australian judicial interpretation of any cause of action for privacy
would proceed on the basis that the public interest should be narrowly and prescriptively defined,
to the detriment of all potential defendants, many of whom will be individuals.
It is therefore important that the onus be on the plaintiff, and any legislated cause of action
should specifically note that there is a public interest in freedom of speech and expression that
must be convincingly displaced before any cause of action is complete.
In our submission, the element of the cause of action should be:
that the claimant must establish to the court's satisfaction that the public interest in
maintaining the claimant's privacy outweighs other matters of public interest.
The breadth of “public interest”
The Issue paper refers to the broader public interest in maintaining freedom of expression (and
the related interest of the public to be informed about matters of public concern).
While much focus is correctly given to freedom of expression, there are many matters of public
interest that must be widely interpreted. Such interests include:

freedom of information;

freedom of communication between individuals and between and within community
groups;

protection of public and personal health and safety;

protection of personal interests;

prevention and detection of crime and apprehension of offenders;

protection of economic, trade and state secrets;
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
respect for confidential relationships;

protection of financial, property and staff management interests;

maintenance of national security and an effective defence capability;

protection of diplomatic relations.
The cause of action may be intended to ensure people are “left alone” but may have the
consequence of regulating what organisations, agencies and private citizens they may and may
not say about each other.
It is important to remember that it is a matter of public interest that individuals are free to
communicate on certain issues. For example, in certain circumstances an individual may be
expected to disclose another person's health status if that latter person has failed to reveal that
information. Where a risk persists to another person or group from an infection, then a public
interest subsists in the communication of that information.
Adverse impacts on these public interests including freedom of communication should not be
taken lightly. That freedom has a fundamental role in preventing harm to individuals and
preventing society from becoming dysfunctional, secretive and potentially corrupt.
Australian and UK courts have, over hundreds of years, recognised a freedom and duty to speak
on matters of public interest is vital to the wellbeing of our community. It is given great weight in
a variety of contexts, including for example in refusing defamation injunctions, in all but the most
exceptional circumstances.
That fragile balance must be maintained by making sure that these rights and interests are given
adequate protection, and that the onus of displacing them is clear.
Should a fault element be included?
The plaintiff must establish that the act or conduct of the defendant was intentional or reckless.
The ALRC contemplates that the act or conduct which results in the invasion of privacy would
need to be intentional or reckless, rather than the invasion of privacy itself. This may have the
unintended consequence of significantly lowering the threshold for the action than what was
anticipated by the ALRC.
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For example, the posting of a photo on Facebook of a friend which indicates in the background
that they have been at a health clinic or the like, without the intention (or possibly knowledge) of
conveying private information about their health status, would still be an intentional act and
actionable.
This element needs to be clarified so that acts which were done without the intention of
breaching any privacy are not caught as it may otherwise make people unduly cautious about
disclosing information about individuals which they believe is innocent but may lead to an
invasion of privacy.
We strongly disagree with the VLRC's recommendation that negligence should not be excluded
from the cause of action.
SHOULD LEGISLATION SPECIFICALLY ALLOW FOR A CONSIDERATION OF A RANGE OF RELEVANT FACTORS?
The NSWLRC proposed a cause of action in two parts, namely whether there was an expectation
of privacy that was reasonable in the circumstances and in light of the various public interests and
secondly the court must have regard to a range of other relevant matters in determining an
invasion of privacy should be actionably in the circumstances.
The NSWLRC set out a non-exhaustive list of matters that the court must have regard to, including
whether the subject matter of the complaint is private, whether the nature of the invasion is such
as to justify an action and whether the relationship between the parties, the claimant's public
profile or the claimant's vulnerability.
We submit the NSWLRC approach of a list of matters the court should have regard to should not
be adopted.
The NSWLRC list of factors is based on a lower threshold of breach, where conduct is considered
"offensive" rather than "highly offensive" and presumes of greater range of possible breaches.
In our view, each of the suggested matters to be taken into account dilutes the central cause of
action and has little or no regard to the balance that is required to be struck. The factors are also
expressed in such a way as to be vague and imprecise.
It is suggested in the Issues Paper that NSWLRC's approach may be simpler, more comprehensive
and may make the cause of action available in a more appropriate range of situations.
In our view, in practice the reverse will be true.
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A layered approach to the cause of action as suggested by the NSWLRC would be more complex
than analysing all of the circumstances of the particular case.
If the NSWLRC approach was adopted, in any proceeding, both plaintiff and defendant will seek to
address each of the eight matters in the list through evidence, and the court will be required to
address each matter when making its decision.
This will in practice add significantly to the complexity and cost of any proceedings. It is also likely
that when the attention of the court and the parties is directed to the various criteria, the range
of situations in which the cause of action might apply will be limited.
Interaction between the cause of action and other legislation
The NSWLRC also recommended that the court should have regard to the existence and
applicability of other laws which could protect a person’s privacy and if such protection exists,
that should be a factor in determining if an action can lie against a particular defendant in
particular circumstances.
This element highlights the flaw of the introducing a new cause of action. It would be necessary
for a court to consider other laws because the new action would significantly overlap with existing
legislation and causes of action.
But the problem is that the new cause of action would cover much more than existing gaps in
privacy coverage (if any) and would create vexed issues in relation to the availability of multiple
causes of action.
Prospective litigants will be tied up in interlocutory hearings attempting to determine whether
the cause of action is available having regard to the availability of other causes of action.
Arguments of the type that occur about imputations in defamation actions will occur, with the
result that this area of the law will become highly technical and specialised. Arguments will seek
to dissect the conduct into various discrete elements, said to justify the various alternate causes
of action.
Indeed, when one examines the "lack of coverage" alleged to exist under the current law, which is
limited to minor gaps, if at all, there will be relatively few matters in which such a debate will not
occur.
Further, this proposed element raises difficult questions concerning whether the criminal
sanctions and remedies are to be taken into consideration.
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SHOULD LEGISLATION LIST THE TYPES OF INVASION THAT FALL WITHIN THE CAUSE OF ACTION?
The paper also proposes the legislation should include a non-exhaustive list of the types of
invasion that would fall within the cause of action. Namely, a serious invasion of privacy may
occur where:
(i)
there has been an interference with an individual's home or family life;
(ii)
an individual has been subjected to unauthorised surveillance;
(iii)
an individual's correspondence or private written, oral or electronic
communication has been interfered with, misused or disclosed; or
(iv)
sensitive facts relating to an individual's private life have been disclosed.
This list like the list of factors that a court should take into account, appears to be a relic of the
lower threshold initially proposed by the ALRC and NSWLRC for establishing a breach, and in our
view should not be included in any legislation.
In our experience, if retained, the two non-exhaustive lists will become de facto elements of the
cause of action.
It appears the list of actions that would constitute a breach of privacy, would form part of the
cause of action but it has not been articulated how the list would interact with the cause of
action. This will lead to undesirable and unintended consequences
Generally speaking, the prescriptive nature of a list inhibits the proper analysis of the
circumstances of certain disclosures and is unproductive in resolving the questions posed by the
other elements of the cause of action. The use of a list in these circumstances is more likely to
favour bureaucratic interpretation, rather than analytical consideration of the competing
interests. This is undesirable.
List 2, recommended by the ALRC, describes four types of activity that would constitute a "serious
invasion of privacy". That term is otherwise not used in the proposed cause of action itself, which
requires a reasonable expectation of privacy and that the invasion of privacy would be highly
offensive to a person or ordinary sensibilities. The problem with terminology is bound to lead to
issues with its application.
The possible impact of including in the cause of action each of the four categories of activities are
considered in turn below.
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Interference with home or family life
There are potentially broad-ranging and unpredictable effects of this aspect of the cause of
action, particularly on the private sector.
In the private sector, the limb relating to interference with home or family life has the potential to
be relied upon in areas as diverse as property and planning disputes, custody and other family law
related disputes, industrial relations and the provision of essential services.
All of these areas are already effectively regulated. Physical intrusion, for example, is adequately
covered by the law of trespass. Situations where an organisation's property overlooks a residence
are addressed by planning laws.
The cause of action could provide a means to sidestep these traditional causes of action and
suitable processes and forums (such as the Land and Environment Court) to obtain an outcome
which would not otherwise be available. This will upset the existing balance between competing
interests reached by laws and by relevant courts and tribunals in each affected area.
If introduced, the cause of action is likely to encourage excessive caution on the part of
organisations when dealing with individuals generally, to the detriment of the individuals
concerned and the community as a whole. It would also be highly undesirable to have a society
in which litigation is encouraged as the solution to every practical problem and personal dispute.
This is also a good example of where a privacy cause of action would undermine other, more
appropriate laws. For example, in a marriage dispute situation, a Federal Magistrates Court
action under the Family Law Act 1975 (Cth) would be appropriate. The decision would be made
by an inexpensive, specialist tribunal under laws designed for these situations and the dispute
would be confined to the family members. However, if a privacy cause of action were available,
then litigants in such disputes would no doubt use it as an alternative to the Family Law Act
provisions, and may use it to pursue their disputes in a non-specialist forum.
In an industrial relations context, the cause of action is likely to be raised whenever an employee
disagrees with a decision affecting family life. These matters should properly be regulated by
applicable industrial instruments and laws.
Again, the cause of action would complicate the law in this area and upset existing balances which
have carefully been reached.
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Unauthorised surveillance
Surveillance is already the subject of extensive regulation throughout Australia, including the
Surveillance Act 2007 (NSW).
It is not clear in these circumstances why an additional cause of action is needed.
And it is not clear how the cause of action would interact with existing laws and how it would add
in terms of protection of the public against inappropriate surveillance.
If in some States, the current surveillance laws are inadequate given contemporary technology,
then thought should be given to updating those laws.
Interference with, misuse or disclosure of correspondence or communication
This proposed ground is expressed in very broad terms and it is unclear how it would apply.
While elements of this limb are contained in Article 8 of the European Convention on Human
Rights, Article 8 has until recently been understood as being applicable only to public authorities.
Nor is it explained how this may apply in circumstances of the exposure of corruption, crime or
misfeasance. It would have a substantial adverse impact on whistleblowing and it is not clear that
whistleblowers will be adequately protected.
Appropriate protection against interference with communications is already provided under
current surveillance laws, in particular the Telecommunications (Interception and Access) Act 1979
(Cth), the Australian Postal Corporation Act 1989 (Cth) and various property and criminal laws.
Actions may also arise under the law of breach of confidence (which would apply to a person who
reads correspondence which is clearly intended to be subject to a duty of confidence), and in
some circumstances under the law of trespass.
This category of activity could be relied upon in a wide variety of situations in which a cause of
action would not be appropriate. For example, employees may rely upon it in relation to any
checking by employers of their email or other correspondence sent or received at work or using
work resources. Checking and referring to work correspondence is often necessary for the
purpose of conducting employers' businesses, as well as to monitor the performance and conduct
of employees. It is also already regulated under certain existing surveillance laws.
This proposed ground exposes the difficulty with such an action. Private emails are regularly
forwarded to others where it contains an item of interest to other friends or members of a group.
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This may show an individual as a hypocrite engaging in some activity worthy of disclosure in the
public interest, such as public malfeasance.
Disclosure of sensitive facts
Extensive and adequate protection against the disclosure of sensitive facts is already available
under a wide variety of existing laws.
The laws of defamation and breach of confidence, trespass, statutory restrictions on publication,
surveillance legislation and the existing Privacy Act provide ample safeguards to ensure nondisclosure of sensitive facts.
If gaps exist which should be the subject of regulation, then these would be best dealt with by
way of problem-specific measures rather than a broad-ranging new cause of action.
The proposed cause of action would have wide-ranging adverse effects on competing interests,
including the public interest in safety and security (including protection against disease), the
public interest in freedom of communication, and the interest of other individuals in being able to
say or publish whatever it is that they wish to say or may be obliged to say to protect another
individual.
An example of where the cause of action could compromise public and personal safety is in the
area of communicable diseases.
DEFENCES AND EXEMPTIONS
The purpose of defences and exemptions to a cause of action for breach of privacy is to avoid
situations where unmeritorious claims of privacy are pursued and litigated.
Given the dangers and unintended consequences that will result from introducing a cause of
action for privacy, if such an action is to be legislated, it must be narrow and carefully tailored to
fill an identified existing gap in the law.
This would mean that the scope of the law could be more easily understood by those who are
subject to it and it would limit the need for the extensive defences required to deal with the
proposed cause of action.
Unfortunately, due to the open language used in the Issue Paper, it is not possible to determine
what the extent of the cause of action is and therefore it is difficult to know what all the
necessary defences are that would be needed.
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That said, all of the defences proposed by the law reform commissions are likely to be required,
save for the VLRC's proposed public interest defence, which as discussed above should more
appropriately be included as an essential element of the cause of action.
Namely, these necessary defences (which are combined from the three law reform commissions'
recommendations, and have not all been recommended by all three bodies) are that:
(a)
the act or conduct was incidental to the exercise of a lawful right of defence of
person or property;
(b)
the act or conduct was required or authorised by or under law;
(c)
publication of the information was, under the law of defamation, privileged (with
a clarification that qualified privilege, as well as absolute privilege, defences are
available), fair comment or a fair report;
(d)
publication of the information was done merely in the capacity, or as an
employee or agent, of a subordinate distributor who neither knew, nor ought
reasonably to have known, that the publication constituted an invasion of privacy;
(e)
the claimant consented; and
(f)
the defendant is a police or public officer engaged in his or her duty and acted in
a way that was not disproportionate to the matter being investigated and not
committed in the course of a trespass.
And there are a number of other defences which have not been outlined in the Issue paper which
are clearly needed. They include:
(a)
a defence for situations where the defendant reasonably considered the act or
conduct to be necessary for the purpose of reducing or eliminating a possible
health or safety risk to a person or persons;
(b)
a defence for situations where the defendant reasonably considered the act or
conduct to be necessary for the purpose of reducing or eliminating a possible
security risk;
(c)
other defences specific to the particular circumstances in which the cause of
action is relied upon, including, for instance, where an organisation takes action in
good faith;
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(d)
additional defamation defences, such as triviality, unlikelihood of harm and
innocent dissemination;
(e)
defences to ensure that the cause of action cannot be used or misused where
another cause of action (such as defamation) is more appropriate, or to avoid
other laws;
(f)
publication of information that is already, or should be, available to the public
domain or a section of the public;
(g)
publication of the information was for the purpose of and in the course of
rebutting an untruth;
(h)
publication of the information was made in good faith based on the request of a
third party which was reasonable in the circumstances; and
(i)
publication of the information was for the purpose of exposing a fraud, public
misfeasance and/or corruption.
In relation to the inclusion of a defence which applies in respect of circumstances in which the
qualified privilege would be available under defamation law, such a defence should be expressed
so it is transparent to ordinary individuals, not to defamation law specialists. The effect of the
proposal for this defence would be to make the law completely opaque and incomprehensible to
most ordinary Australians and, indeed, many lawyers who do not specialise in this area. Most
people would not realise that the law permitted them to do something in circumstances in which
it did so. It would therefore have no practical effect.
The limited application of the qualified privilege defence in defamation actions should be
reconsidered as well.
REMEDIES
In our submission, the broad range of remedies proposed by the ALRC and NSWLRC are too
extensive, and in some cases are not aligned with or appropriate for a proposed privacy cause of
action.
For instance, it would be rare that a correction order could remedy an invasion of privacy, except
where the privacy invasion has involved the disclosure of false information, in which case
defamation is arguably a more appropriate cause of action.
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Similarly, the purpose of awarding damages in these circumstances is unclear and should be
articulated.
Awarding damages for an invasion of privacy is unlike awarding damages in defamation, where
the main purpose of damages is to vindicate the person's reputation.
Presumably the purpose of awarding damages as a remedy is either seen as a solution for the
harm caused by the invasion of privacy (in which case proof of harm should be established), or it
is seen as some form of deterrent or punitive in nature.
Clearly damages would not be an appropriate remedy in all circumstances. For example,
harassment or stalking is best dealt with by a court order preventing such action taking place in
future.
Another problem is that the nature of remedies available will further encroach on competing
rights.
Allowing a plaintiff to seek an injunction so as to ward off a possible future breach could have
serious implications for freedom of communication, protection of national security and public
health and safety.
The importance of allowing a free flow of information is reflected in the remedies available for
defamation, which do not generally include injunctions, and which do not include correction
orders at all. In particular, defamation law recognises the existence of the competing right of
freedom of communication which should not be defeated by injunctive action. Similar restrictions
should apply in relation to remedies available in respect of privacy laws.
An additional concern is that the broad range of remedies available is likely to lead to claimants
choosing to bring an action for invasion of privacy rather than other, more appropriate, causes of
action. This will enable them to obtain remedies not otherwise available.
For example, a plaintiff might bring a claim for invasion of privacy rather than defamation so as to
obtain an injunction, which is only available in defamation in exceptional circumstances.
Similarly, the liberality of the proposed remedies could be used by claimants to achieve other
ends, especially if the bar for establishing the cause of action was lower than the alternate action.
For example, injunction applications could be used to disrupt other legal processes.
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Limitations to awards of damages
Damages available for any cause of action for invasion of privacy must be capped, and must be
capped at a level that is lower than that for defamation and personal injury actions. It must be
capped at a lower level as the value of damages as a remedy for a breach of privacy is more
limited than damages in defamation and personal injury.
Further, a lower threshold for damages will be important in practice for the following reasons:
(a)
if damages for a privacy breach are lower than those in defamation and are to be taken
into account in any claim of defamation based on the same circumstances, this will
discourage multiple proceedings where a claim for defamation is more appropriate;
(b)
it will encourage an aggrieved party to engage in pre-action resolution without resort to
litigation; and
(c)
it will discourage spurious and speculative claims.
Proof of damage
The Issue paper asks the question if any proposed cause of action should require proof of
damage?
In our view proof of damage in any action must be required.
The courts and the legislature should be cautious about allowing action to be taken, awarding
damages or other remedies where no demonstrated harm has been done.
The cause of action has considerable ability to interfere with existing public rights and it is not
appropriate that it be actionable per se.
The prospect of legal action for invasion of privacy where minimal or no damage has been caused
would result in people generally taking an unduly wary and cautious approach in relation to
matters affecting individuals, to the detriment of competing interests such as freedom of
communication.
The private interest of an individual should only have sufficient weight to justify compromising
interests of freedom of expression and other public interests where actual harm has been
suffered.
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RESOLVING MATTERS WITHOUT RESORT TO LITIGATION
The Issue paper raises the question whether any proposed cause of action should also allow for
an offer of amends process?
Any cause of action for privacy should have its primary focus on addressing and, if appropriate,
redressing the circumstances that have led to a breach which is highly offensive.
Encouraging parties to resolve matters without resort to litigation by focusing on addressing the
circumstances in which the alleged breach has occurred should be the primary focus.
However, we do not consider the offer to amends process would translate into a cause of action
for privacy.
The offer of amends procedure in defamation which leads to corrective statements is designed for
a cause of action in which the only available remedy is damages.
The proposed privacy cause of action is different in that it is proposed remedies other than
damages are available.
It is worth noting that corrective statements may not be an appropriate remedy for a breach of
privacy, since in many circumstances, it will not involve any communication of false information.
To the contrary, the information will often be true and its further ventilation by an additional
publication (albeit by way of a "correction") might compound the perceived harm to the
aggrieved person.
Any offer of amends procedure devised for a privacy cause of action would have to be
significantly different to that currently in place in relation to defamation claims.
What is significant about the majority of the privacy actions brought in Australia to date is that
they generally arise from domestic situation, in which the parties are likely to be more amiable to
informal resolution processes aimed at addressing the underlying issues which have caused the
breach in the first instances.
The application of the Civil Dispute Resolution Act 2011 (Cth) and, more importantly, early
intervention by mediation are likely to be more effective procedures to give parties more
opportunity and incentive to come to a mutually agreeable settlement.
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OTHER ISSUES
Natural persons
Given the proposed cause of action is designed to protect an individual's privacy, it follows that it
should only be available to natural persons and should not be extended to any organisation or
type of organisation.
Deceased persons
Similarly, given the personal nature of the action it should not be available to deceased persons.
Limitation of action
The Issue paper asks the question, within what period, and from what date, should an action for
serious invasion of privacy be required to be commenced?
The aim of this cause of action should be to seek speedy redress of a breach of privacy, rather
than engaging in litigation. For that reason, the limitation period should be restricted. In our view
a person should take steps to litigate a breach within 12 months of the relevant conduct.
The limitation period should run from the date of the first publication. The legislation should
make it clear that republication, by the same defendant, by making the material available on the
internet will not extend the limitation period beyond the date of the first publication.
Representative proceedings and class actions
Given the personal nature of the cause of action class actions should not be available. The
circumstances in which each person possesses a right to privacy will vary significantly, and could
not be conveniently dealt with by way of class action.
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