The law has had great difficulty in classifying and protecting each individual’s apparent rights to privacy. The courts have been faced with the difficult tasks of defining what privacy encompasses for each individual and then balancing this against the values of society. The common law has recently begun to develop through judgements handed down in such countries as the United States, United Kingdom and New Zealand, placing pressure upon Australian courts to follow their lead. Cases such as Lenah Game Meats v Australian Broadcasting Corporation and more recently Grosse v Purvis have expressed the Australian legal systems apparent desire to move forward in acknowledging an action for invasion of privacy. By legislating at a federal level, most suitably within the Privacy Act , a more consistent and structured cause of action can be put in place. By acknowledging the need to protect privacy rights, Australia will be coming into line with not only the rest of the common law countries, but also with its international obligations under the International Covenant on Civil and Political Rights. Defining Privacy:
The term ‘privacy’ has been difficult to obtain a universally accepted definition between legal scholars. In ALRC 22 it was noted that ‘the very term “privacy” is one fraught with difficulty. The concept is an elusive one’. As Professor J Thomas McCarthy noted, ‘Like the emotive word ‘freedom’, ‘privacy’ means so many different things to so many different people that it has lost any precise legal connotation that it might once have had. In coming to terms with the concept of ‘privacy’, it is important to first recognise that it has been acknowledged by the international community as a human right through such key documents as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Australia signed the ICCPR on 18 December 1972 and ratified it on 13 August 1980. Although such rights and obligations under the ICCPR will not be recognised in Australian law until specific legislation is passed implementing the provisions, the recognition of privacy as a human right under Article 17 of the ICCPR lends support to the argument that such recognition in domestic law is warranted. The recent enactment of domestic human rights legislation such as the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT) further demonstrate the desire for privacy to be recognised.
The Development of the tort of Privacy:
A tort of invasion of privacy has, since the 1970’s, been recognised through legislature in some jurisdictions of the United States and Canada. Within the United Kingdom such a tort is yet to be specifically recognised, however the equitable action for breach of confidence has been used to address the misuse of private information. In Australia, no state or territory has yet to recognise a cause of action for invasion of privacy legislatively; however the door to such a cause of action being developed through the common law has been left ajar by the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (‘Lenah Game Meats’).
The Major obstacle at common law to the recognition of a right to privacy in Australia has been the 1937 High Court decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (‘Victoria Park’). However in the decision handed down in Lenah Game Meats , it was expressed that the decision in Victoria Park will no longer ‘stand in the path of the development of ... a cause of action ‘for invasion of privacy]’.
A common law right of action for invasion of privacy has been recognised in two Australian cases. In Grosse v Purvis, Skoien SDCJ awarded aggravated compensatory damages and exemplary damages to the plaintiff for the defendant’s breach of the plaintiff’s privacy. After pointing out that the High Court had removed the barrier to any party attempting to rely on a tort...
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