A Victorian court has recognised invasion of privacy in Australian common law in a decision published only weeks after the federal government introduced a bill to tackle the issue.
The decision resulted in compensation worth tens of thousands of dollars for a woman who successfully argued her father breached her privacy in a series of media interviews he gave after he survived a murder attempt orchestrated by her mother.
Judge My Anh Tran found in the county court that the woman, who cannot be named, proved her father should not have disclosed information from a joint counselling session and private conversations in interviews after the attempted murder.
Tran found the man co-authored a true-crime book and gave interviews to Marie Claire, the Age and the Sydney Morning Herald, and appeared on the Seven’s Sunday Night program.
The more than 48,000-word decision, which also included discussion of cases involving Meghan Markle and Naomi Campbell, was published last week.
The Legal and Constitutional Affairs Legislation Committee is now considering an Albanese government bill introduced last month which the attorney general, Mark Dreyfus, says will “begin the much-needed work of updating our privacy laws to be fit-for-purpose in the digital age”. The committee’s report is due in November.
Tran said that while there was already a category of case involving a breach of confidence that was founded on the “fundamental common law right to privacy” that “the case for recognising this existing category of case as a standalone cause of action, separate and distinct from the action for breach of confidence, is compelling”.
“Although historically this action has been housed under the overarching doctrine of breach of confidence, it is better viewed as separate and distinct from the action for breach of confidence,” she said.
“This does not amount to the creation of a tort, but rather a recognition of the bifurcation which has developed in relation to the action known as breach of confidence, between actions which at their heart protect confidential trade information; and actions (available only to natural persons) which at their heart protect human dignity in privacy.
“It is proposed to elucidate that bifurcation, by renaming the latter category as an action for invasion of privacy.”
Ian Upjohn KC represented the daughter in the case. He declined to comment about the specifics of her claim, but said that the decision was significant.
The plaintiff was awarded $30,000 damages for invasion of privacy and $10,000 damages for breach of confidence.
“It’s only lower court stuff, but cases have to start somewhere and it’s another development towards a right to privacy,” Upjohn said.
“There’s going to be a new statutory right, if the government goes down that path … but what this shows is that the rate of technological change and social change means that there is a serious problem which causes harm or loss, and the common law slowly and incrementally develops a right and remedy to address that technological and social change.”
Dean Gerakiteys, a partner of Clayton Utz, said that while he was yet to read the full decision it showed that privacy law was an emerging issue that had to be considered by individuals and businesses.
“What it does go to show is that there is increased attention being paid in Australia to these issues, and that can be seen not just from the government’s privacy reforms, and from litigants, but from judges.”
