Flashcards in Invasion of Privacy Deck (21):
Victoria Park Racing v Taylor
P company ran a race track. Held a variety of race meetings. They also published info about horses results etc.
D owned the land next door and he put up a platform which directly overlooked P's land. D then licensed that platform to the broadcasting people to use their binoculars to get info, then broadcast the results.
P said business profit fell because people simply stopped turning up to races, they were happy to listen to the broadcasts.
P sought injunctions to prevent D to carry on broadcast with a consequence of invasion of privacy (which was non-existent at the time).
He sought different actions because there is no tort of invasion of privacy.
He sought under:
2. Copyright of that information.
Both claims failed. So no action could be taken to protect the invasion of privacy.
Nuisance is a right to enjoy land, it does not include a view outwards and does not include a right not to be looked in on.
The courts pointed out that there was no general right to privacy at the time.
Kaye v Robertson
Position in the UK is generally no tort of privacy either.
Case of wrongful intrusion upon a patient as he lay in hospital.
Kaye was loved by the British public. He had been involved in an accident as a result of which he had a brain injury. He was recovering in the hospital bed, two journalists came into his room, took photographs of him and then published it subsequently in the sunday sports claiming they were part of an exclusive interview.
Kaye tried different actions:
1. Trespass to land, but he was not in ownership of the room
2. Trespass to person claiming battery from the flash of the lightbulb, which failed.
3. Tort of defamation because it impllied he had consented to give an interview. People would think less of him because the Sunday Sports was not a very good newspaper. This was accepted by the courts.
The courts were reluctant to give an interlocutory injucntion becasue of the right to freedom of speech and to give an interlocutory injunction would restrain people from publishing apparently defamatory material.
P tried to restrict through injurious falsehood (deliberate misrepresentation engaged in which you can prove because of some actual economic loss). The injurious falsehood they said was the idea that he had consented to getting an interview and pictures taken. He claimed this caused him loss. It might stop him from getting exclusive interviews with other newspapers and hence wouldn't be paid. But even so, he couldn't get an injunction because it's a deliberate wrong, can't prevent publication of photos themselves, only publication of material which misrepresented what D had said.
Held: No injunction granted for defamation.
ABC v Lenah
Ads publication of animal cruelty videos taken on P's property.
The animals were possum and an individual had gone onto P's land and put a surveillance device/camera on the property which recorded the way in which the possums were being killed.
This tape eventually found it's way to ABC who broadcasted it.
P seeks an injunction to prevent ABC from publishing it.
First instance, injunction granted.
At HC, not granted and decision reversed.
What wrong had ABC committed? The pictures simply showed the way things were. There was the obvious defence of truth.
Furthermore, the trespasser was unknown.
Furthermore, Gleeson CJ said "breach of confidence can be used to protect private information where it is illegally obtained". The information wasn't really private
HC threw case out, no injunction, emphasising the fact there is no general tort of privacy in Australian Law.
Court also points out Victoria Park case doesn't inhibit development of privacy protection at common law, at least in regard for natural persons (not corporations).
This case said there is a breach of confidence action available outside of confidential relationships where:
1. Information is private; and
2. Information is 'illegally, improperly or surreptitiously obtained'.
Ways forward for the law?
As in ABC v Lenah:
1. Gleeson CJ: Breach of confidence - somehow deeming info to be confidential and protecting it under the law of confidence. Breach of law of confidence is not spilling confidential info to others, breaching relationships of trust between individuals by disclosing info which has been imparted from one to another within a relationship of trust.
2. Gummow, Heydon and Gaudron - piecemealism. Piecemeal protection in other wrods does not introduce any brand new tort, but looks at all existing causes of actions like trespass to land etc and work with them to expand it and hopefully if you expand it enough, the gap will disappear. So they're thinking of protecting a right to privacy indirectly.
3. Callinan - wants to introduce privacy tort under tort of legislation.
What is privacy and why is it important?
As the world gets filled with more and more people. We want more personal space for each other.
Difficulty in defining such a broad term, but it encompases a variety of different interests such as:
1. Not have intrusion into seclusion (Intrusion into private affairs): Kaye; Grosse v Purvis
2. No disclosure to others (wrongful disclosure of personal info or control over private information) Giller and Doe
3. False light (giving false image of a person, not necessarily defamatory/ not being cast in a false light) Braun v Flint
4. Appropriation of image of personality (use of another's name, image of personality/ interest in one's name of likeliness).
Braun v Flint - US Case
Act to how she made her living, she got a pig to do certain tricks.
D ran a magazine known as Chick magazine and through deception, obtained pictures of her with the pig and published it.
The magazine is devoted to lewd pictures of women and their exploitation.
These cases are quite close to defamation, but you don't have to prove info is false, and the essence is not a person's reputation, but that they've been caused emotional distress.
Routes to Reform?
Expand on the law of Breach of Confidence
Breach of confidence
Traditional requirements as in Coco v Clark:
1. Confidential (secret) information. This is different to private info, it's 'secret' info. That which is 'secret' is different to 'private'.
2. The info was imparted within a confidential relationship
3. Unauthorised use of info to P's detriment.
Coco v Clark was a commercial case in which someone had used design of a mo-ped to try and make money. So the Law of Breach of Confidence isn't really protecting privacy itself, but can be adapted to protect it.
There is a defence of public interest however: Campbell v MGN (2004)
Campbell v MGN
Campbell for many years had denied she had a drug problem and denied any addiction.
Newspaper got hold of info that she was receiving treatment and employed paparazzi to take photos of her as she stoo in the streats in front of the clinic.
Stories didn't just say she had an addiciton but also details of her treatment.
In one of the articles, they also added the photograph of her standing in front of the clinic.
She sought to restrain.
The HOL majority 3-2 that she has an action in Breach of Confidence.
Even though, becuase that info was deemed to be private, the courts allowed it to protect private information in some circumstances.
We can see the photo is not secret information in a traditional sense. The picture was taken in a public place. The info wasn't something she had attempted to keep to herself.
Similarly no relationship of confidentiality with the paparazzi.
So Lord Nicholls said in those circumstances you have to prove:
1. Reasonable expectation of privacy
2. Interest is not outweight by D's right to freedom of speeech in Article 10; and
3. Some disclosure of some seriousness.
Held: reasonable expectation of privacy. It wasn't reasonable expectation of privacy about her being addicted and being treated since she had publicly expressly indicated that she either had an action or was being treated. The fact she had gone to the public about this, there was no reasonable expectation of privacy.
But regards to her treatment, there was the exception of private.
The photos, even though it was taken in a public place, might inhibit her welfare in terms of recovery from addiction. The photos were pretty much intertwined with the success of the treatment.
So what constitutes private information?
As in ABC v Lenah, the test is whether that material would be "highly offensive to a reasonable person of ordinary sensibilities". THIS IS STILL THE DEFINITION FOR BREACH OF CONFIDENCE. The meaning has been expanded to include private information.
The mere fact that the activity takes place on private land doesn't make the information private. It has to be more than that. It's where the information is intimate in some way, bears upon our sense of identity or dignity.
Giller v Procopets
Sex tape case.
P and D had previously been in a relationship for 3 years. Defacto relationship between '90-'93. They continued to have a sexual relationship until '96. She then alleged sexual violence and sued him for assault.
He then distributed a variety of sex tapes he had made. 5 out 10 which she knew about. The tapes were distributed to family and friends. Action for damages, becuase it was already too late for an injunction.
Actions were brought for:
1. Intentional infliction of emotional distress.
2. Breach of confidence
They awarded her 40,000 for breach of confidence an an award of $10,000 for aggravated damages.
First case in Australia where you can get damages for emotional distress for breach of confidence.
Though usually, BOC is not to protect you against distress, but against your autonomy or dignity. It might be that there are circumstances in which you'd be entitled to an injunction even where you've been unaware that the photo is being taken.
Though for this case, it may be seen as quite a normal case since the requirements fit for for a normal BOC case, so may not be useful in advancing privacy protection.
Note: Courts did rule out suing purely for the intentional infliction of emotional distress. However, they did suggest, if you've shown the breach, you may get damages if you have very high emotional distress.
A distinct Tort (or torts) at Common law?
The possibility of such was in Grosse v Purvis.
The lower court judge took the bold step of recognising a tort of invasion of privacy. He referred to the infinite fertility of the common law, it's adaptability and the need for such a tort.
But it's all obita.
He had a model - wrongful intrusion tort. The elements of which are:
1. Willed act (deliberate or reckless, negligent not rule out)
2. Intrusion upon privacy or seclusion
3. Highly offensive to a person (in P's position) or ordinary sensibilities
4. Detriment - 'mental, psychological or emotional harm or distress', or 'hindrance" of P's actions
But again, there is still the defence of public interest.
Hosing v Runtin
Here puts forward the idea of:
1. Reasonable expectation of privacy
2. Publicity would be highly offensive to a reasonable person
It tries to import American law.
Grosse v Purvis
Case of stalking from a relationship break up. P claimed to be stalked for 8 years resulting in a Post traumatic stress disorder. There was 80 different events including calls to mobile phones, suddenly appeared in her presence in public and she also alleged physical and verbal abuse.
She used using the piecemeal approach for a number of torts:
1. Trespass to land;
2. Trespass to person;
3. Private nuisance (in respect of phone calls to her home address)
4. Intentional infliction of psychiatric harm (wilkinson v Downton). This case differed from Giller as she had actually suffered a condition.
Held: No evidence of battery or assault, but the case of stalking fell within the existing categories of tort, or within the tort of invasion of privacy.
She was awarded $178,000.
The sorts of detriment suffered were not just for PTSD itself, but also behavioural change (avoidance behaviours, constantly on edge etc).
Doe v ABC (disclosure)
This was a case of wrongful disclosure of private info.
Realy name wasn't actually Doe, but for proceedings it was.
She had been raped by husband. She then reverted back to her maiden name.
At criminal proceedings, she was going to give evidence and the courts made an order to keep her identity secret.
A journalist for ABC identified her. In one bulletin, she was identified indirectly, by giving the husband's name and saying it was marital rape. Obviously everyone knew who his wife was.
In the second broadcast, they used her maiden name, the one she was no using and chosen in order to keep her anonymity.
The people were prosecuted for breaching a court's order.
She brought an action in tort for breach of confidence.
She also sued in negligence on the basis she had suffered PTSD or a psychiatric injury.
Breach of statutory duty was also alleged.
Breach of privacy as well.
The court held all four actions were made out.
So the elements described by Lord Nichools for wrongful use of private information was slightly altered in Aus:
1. Must be private information - reasonable expectation of privacy (same) (this was added to the test to protect privacy THROUGH Breach of Confidence)
2. Unjustified publication (negligence clearly enough, so no need for 'wilful acts') (diff)
3. No public interest in disclosure (same).
Still a defence of public interest, but in this case there was none.
This was similar to UK action for wrongful use of private infomration, and distinct from the tort recognised in NZ Hosking v Runting.
This model, the information does not have to be "highly offensive"k
Is there any statutory action for the invasion of privacy?
There isn't since the HC has to recognise it and they've shown reluctance to do so.
But there is a comparison of three articles, which pose a number of different questions. The three articles are:
1. ALRC, Report no 108.
2. NSWLRC - Report no 120.
3. VLRC Report no 18.
Questions to consider:
1. Use common law or statute?
2. Include natural persons or just corporations?
3. One cause of action or more?
4. Liability threshold?
Common law or statute?
Benefits of using statutory creating a cause of action in a statute:
1. Wouldn't have to wait for HC to consider a case
2. May produce 'clearer' law
3. Can create new remedies not under common law. Possibility or recognising apologies under the statute as a remedy which doesn't exist at common law.
1. Rely on government to put it through. Because the government is sensitive to the opinions of the Press, the press might not want privacy legislation introduced and hence gov may not pass it.
Natural persons or corporation?
Majority in Lenah thought not to include corporations. The idea is a human idea, not an economic idea. Most unlikely that reforms will recognise rights for corporations.
One cause of action or two?
Might not have a combination because in cases of disclosure, you have to balance freedom of speech against privacy rights, where else in intrusion, you just look at privacy rights.
Under ALRC, must be a 'serious invasion':
1. Reasonable expectation of privacy
2. Conduct be 'highly offensive' to reasonable person of ordinary sensibilities (Atkin to NZ, US)
Under NSWLRC: more than trivial invasion:
1. Reasonable expectation of privacy
2. Privacy wrongly invaded (offensiveness is just one fact in assessing this)
Under VLRC: 'serious invasion':
1. Reasonable expectation of privacy
2. Conduct 'high offensive to reasonable person of ordinary sensibilities (Atkin to NZ, US)
Though we should drop 'highly offensive' as this comes from US and US prefers a higher degree of protection, but here we have a more balanced view including privacy rules.