This document examines whether Australia should recognize a tort of breach of privacy to protect individuals from threats to their personal privacy. Existing laws provide some privacy protections but also have gaps. Breach of confidence is emerging as an important cause of action for privacy issues, but it does not provide general protection and relies on a pre-existing relationship of confidentiality. Overall, the uncertainty around privacy protections in Australia would best be addressed through legislation establishing a general tort of breach of privacy.

1. Do Threats to
BREACH OF PRIVACY Personal Privacy
Require the
Recognition of a Tort
IN AUSTRALIA of Breach of Privacy
in Australia?
Atul Kuver

2. Introduction
This essay examines whether threats to privacy requires the recognition of a tort of
breach of privacy in Australia. Laws of trespass, nuisance, defamation and breach of
confidence provide some protection to individual privacy, but there are gaps: cases
where the courts have considered that an invasion of privacy deserves a remedy that
existing law may not offer. 1 This essay argues that case-by-case investigation of
whether a tort of breach of privacy should exist is a slow process and may not result
in a separate cause of action.
Breach of confidence is an equitable cause of action that is emerging as a ‘powerful
weapon in the protection of privacy.’2 The analysis will show — with particular focus
on breach of confidence — that while existing causes of action are satisfactory in
some circumstances, they do not provide general protection for invasion of individual
privacy. Overall, the enquiry suggests that the uncertainty associated with the
protection of privacy should be resolved through legislation to create a general cause
of action for breach of privacy.
Privacy protection under current legislation
A constitutional right to privacy does not exist in Australia but legislation can provide
certain but incomplete protection.3 The Privacy Act 1988 (Cth) provides a system for
1
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Campbell v
MGN Ltd [2004] UKHL 22; Doe v ABC & Ors [2007] VCC 281; Grosse v Purvis [2003] QDC 151; Hosking v
Runting [2005] 1 NZLR 1.
2
Michael Rivette, 'Litigating privacy cases in the wake of Giller v Procopets' (2010) 15 MALR 283, 283.
3
Department of Parliamentary Services, Parliament of Australia, Do Australians have a legal right to
privacy? (2005).
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3. the collection and correction, use and disclosure of personal information, but it may
not provide adequate legal protection to avoid breaches of individual privacy. 4
The concept of privacy
In Lenah Game Meats, 5 Gleeson CJ, in reply to the respondent’s contention that
Australian law should recognise invasion of privacy stated that ‘the lack of precision
of the concept of privacy is a reason for caution in declaring a new tort of the kind.’ 6
Gummow and Hayne JJ also stated that ‘invasions of privacy … in many instances
would be actionable at general law under recognised causes of action.’ 7
Development of law in the area of breach of privacy
Victoria Park and Lenah Game Meats – Unlocking the door to a new tort
The presumed rule from Victoria Park8 was that courts had not developed an
enforceable right to privacy. 9 However, in Lenah Game Meats, it was stated that
‘Victoria Park does not stand in the path of the development of such a cause of
action.’10 This declaration ‘unlock[ed] the door’11 to the recognition of a common law
tort to protect privacy.
4
Department of Parliamentary Services, Parliament of Australia, Do Australians have a legal right to
privacy? (2005).
5
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.
6
Ibid 225-226.
7
Ibid 255 [123].
8
Victoria Park Racing & Recreation Grounds Co Pty Ltd v Taylor (1937) 58 CLR 479.
9
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 248.
10
Ibid 248 [107].
11
Mark Johnston, 'Should Australia force the square peg of privacy into the round hole of confidence
or look to a new tort?' (2007) 12 MALR 441, 445.
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4. Grosse v Purvis and Doe v ABC – Recognition of a tort of breach of privacy by lower
courts
In Grosse v Purvis,12 the Queensland District Court declared protection against a
breach of privacy. Skoien SJ stated, ‘[i]t is a bold step to take … the first step in this
country to hold that there can be a civil action for damages based on the actionable
right of an individual person to privacy.’ 13
Similarly in Doe v ABC,14 the Victorian Supreme Court found that the defendant
breached the plaintiff’s privacy by unjustified publication of personal information.
Hample J described the decision as ‘taking the next, incremental step in the
development of the recognition of the right to protection against, or provide remedy
for, breach of privacy’. 15 Hample J considered it inappropriate to ‘attempt to
formulate an exhaustive definition of privacy.’ 16 As a consequence no elements of the
tort were defined.
Giller v Procopets – Rejecting the first recognition of the tort of breach of privacy
In Giller v Procopets,17 Gillard J concluded that both English and Australian law had
not recognised a cause of action based on breach of privacy. 18 This decision has been
criticised on the basis that Gillard J gave no detailed discussion of the analysis in
Lenah Game Meats and did not consider Grosse v Purvis.19
12
Grosse v Purvis [2003] QDC 151.
13
Ibid 99 [442].
14
Doe v ABC & Ors [2007] VCC 281, 54 [164].
15
Ibid 54 [162].
16
Ibid.
17
Giller v Procopets [2004] VSC 113.
18
Ibid 76 [187].
19
Doe v ABC & Ors [2007] VCC 281, 52-53; Mark Johnston, 'Should Australia force the square peg of
privacy into the round hole of confidence or look to a new tort?' (2007) 12 MALR 441, 446.
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5. On Appeal,20 Neave JA responded to the contention that the trial judge had failed to
consider authorities that supported the development of a tort of privacy by considering
the developments in England,21 New Zealand22 and Australia. 23 Neave JA concluded
since ‘Ms Giller ha[d] a right to compensation on other grounds, it [was] unnecessary
to say more about whether a tort of privacy should be recognised by Australian law.’ 24
Although two lower level courts have claimed that the tort of breach of privacy exists
in Australia,25 appellate courts have been reluctant to recognise a common law right to
privacy. 26
Protection of privacy through Common Law and Equitable causes of action
Trespass to person
Trespass to person exists to protect the physical integrity of the person. The elements
are that interference must be intentional (or negligent) 27 and direct.28 In Wainwright v
Home Office,29 the room used to strip-search Mrs Wainwright had an uncurtained
window through which she could be seen. She was not touched so the interference
was not a battery. The tort of trespass was not able to protect Mrs Wainwright’s
privacy.
20
Giller v Procopets (2008) 40 Fam LR 378.
21
Campbell v MGN Ltd [2004] UKHL 22.
22
Hosking v Runting [2005] 1 NZLR 1.
23
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.
24
Giller v Procopets (2008) 40 Fam LR 378, 482.
25
Doe v ABC & Ors [2007] VCC 281; Grosse v Purvis [2003] QDC 151.
26
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Giller v
Procopets (2008) 40 Fam LR 378; Giller v Procopets [2004] VSC 113.
27
Williams v Milotin (1957) 97 CLR 465.
28
Hutchins v Maughan (1947) VLR 131.
29
Wainwright v Home Office [2003] UKHL 53.
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6. Trespass to land
Trespass to land occurs through direct physical interference with a person’s exclusive
possession of land.30 TV crew entering a premises will constitute trespass where there
is no licence to enter.31 However, for a person in a public place intrusion is possible
through the use of cameras and telecommunication devices. 32 The person suffering
interference is on land where they have no right to exclusive possession and a cause
of action in trespass to land would not succeed.
Private nuisance
Private nuisance is an unlawful and unreasonable interference with a person’s use or
enjoyment of land, or of some right over, or in connection with it. 33 This action would
also be unsatisfactory in situations where the person does not have possession of
land. 34
Defamation
Defamation laws protect personal reputation. 35 It involves publishing charges that
lower a person’s reputation in the view of ordinary people in the community. The
Defamation Act 2005 is a starting point when considering this cause of action. But the
plaintiff in Lenah Game Meats did not pursue an action in defamation, which
indicated reluctance in using this cause of action for specific invasions of privacy.
30
League against Cruel Sports v Scott 3 WLR 400; Southport Corporation v Esso Petroleum Co Ltd
[1954] 2 QB 182.
31
Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457.
32
Campbell v MGN Ltd [2004] UKHL 22.
33
Hargrave and Goldman (1963) 110 CLR 40.
34
Campbell v MGN Ltd [2004] UKHL 22.
35
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 212.
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7. Breach of confidence – Powerful but incomplete
For an action of breach of confidence, there must be a pre-existing relationship of
confidence between the parties and disclosure of personal information must breach
that confidence. 36 In Lenah Game Meats, Gleeson CJ stated that ‘[i]f the activities
filmed were private, then the law of breach of confidence is adequate to cover the
case.’37 Gleeson CJ suggested a test to determine types of information that could be
regarded as confidential, in circumstances where it had been obtained without an
existing relationship of confidence, but obtained improperly or surreptitiously.
Gleeson CJ said that ‘[t]he nature of the information must be such that it is capable of
being regarded as confidential.’38 The situation in law seems to be that an action of
breach of confidence may be possible without a pre-existing relationship of trust if the
Gleeson CJ test is satisfied.
The significant outcome in Giller v Procopets39 was that Ms Giller was entitled to
compensation for mental distress and embarrassment. According to Michael Rivette,
‘[t]his aspect of the case was critical to the development of privacy law in Australia
[as] [m]ost breaches of privacy do not result in the victim suffering ‘recognised
psychological disorders’.’40 Rivette suggests that by lowering damage threshold in
breach of confidence makes it an action that can protect privacy. 41
36
N A Moreham, 'Breach of confidence and misuse of private information: how do the two actions
work together?' (2010) 15 MALR 265.
37
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 225.
38
Ibid 224.
39
Giller v Procopets (2008) 40 Fam LR 378.
40
Michael Rivette, 'Litigating privacy cases in the wake of Giller v Procopets' (2010) 15 MALR 283, 285.
41
Ibid.
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8. Rivette declares that breach of confidence can provide far greater privacy protection
compared to countries like New Zealand, where a tort of breach of privacy exists.42
But his argument only examines the situation where information is obtained
improperly or surreptitiously. An alternative scenario is illustrated below.
The scenario
A person takes a photo of their partner in the shower with the partner’s consent. It is
transmitted to a third person. No relationship of trust and confidence exists between
the person in the photo and the third person. Could the person in the photo succeed in
an action of breach of confidence against the third person if the third person publishes
the photo?
In Lenah Game Meats, the information was obtained surreptitiously and then passed
to the third person for broadcasting. The alternative scenario is distinguishable
because consent was given when the photo was taken. The Gleeson CJ test would fail
in the alternative scenario because the information was not tortiously obtained.43
Reasons for developing the tort of breach of privacy through the legislature
Lord Hoffman’s commentary suggests that filling the gaps in the protection of privacy
‘requires a detailed approach which can be achieved only by legislation rather than
the broad brush of common law principle.’ 44 Privacy also involves policy issues
42
Michael Rivette, 'Litigating privacy cases in the wake of Giller v Procopets' (2010) 15 MALR 283, 287.
43
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 231.
44
Wainwright v Home Office [2003] UKHL 53, [33].
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9. which may require community consultation, a process that is only available through
the legislature.45
The development of privacy protection has not generated the expected certainty and
‘may result in piecemeal and fragmented privacy protection’ 46 with different
approaches taken by different jurisdictions. The Australian Law Reform Commission
proposed that for consistent privacy protection, a cause of action for a serious
invasion of privacy should be recognised though legislation. 47
Conclusion
This essay examined whether threats to personal privacy requires a new tort of breach
of privacy. The lack of precision with the concept of privacy has contributed to the
reluctance in recognising a new tort. The case-by-case development of privacy
protection has not significantly alleviated the uncertainty surrounding privacy laws.
Analysis of existing laws shows that they provide certainty and protection in specific
situations, but general application can be limited. Breach of confidence can be used as
a cause of action when information is obtained improperly or surreptitiously. But an
alternative scenario demonstrated that this too can fail. Overall, the enquiry suggests
that uncertainty, policy issues, fragmented protection, and the reluctance of appellate
courts are significant reasons for a tort of breach of privacy to be recognised through
legislation.
45
Hosking v Runting [2005] 1 NZLR 1, [5].
46
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice,
Report No. 108 (2008), Vol. 3, 2536, [74.2].
47
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice,
Report No. 108 (2008), Vol. 3, 2536, [74.3].
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10. Bibliography
A Articles/Books/Reports
Australian Law Reform Commission, For Your Information: Australian Privacy Law
and Practice, Report No. 108 (2008), Vol. 3
Dean, Robert, 'A right to privacy?' (2004) 78 ALJ 114
Moreham, N A, 'Breach of confidence and misuse of private information: how do the
two actions work together?' (2010) 15 MALR 265
Johnston, Mark, 'Should Australia force the square peg of privacy into the round hole
of confidence or look to a new tort?' (2007) 12 MALR 441
Rivette, Michael 'Litigating privacy cases in the wake of Giller v Procopets' (2010) 15
MALR 283
Witzleb, Normann 'Giller v Procopets: Australia's privacy protection shows signs of
improvement' (2009) 17 TLJ 121
B Cases
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR
199
Campbell v MGN Ltd [2004] UKHL 22
Doe v ABC & Ors [2007] VCC 281
Giller v Procopets (2008) 40 Fam LR 378
Giller v Procopets [2004] VSC 113
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11. Grosse v Purvis [2003] QDC 151
Hargrave and Goldman (1963) 110 CLR 40
Hosking v Runting [2005] 1 NZLR 1
Hutchins v Maughan (1947) VLR 131
League against Cruel Sports v Scott 3 WLR 400
Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457
Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182
Victoria Park Racing & Recreation Grounds Co Pty Ltd v Taylor (1937) 58 CLR 479
Wainwright v Home Office [2003] UKHL 53
Williams v Milotin (1957) 97 CLR 465
C Legislation
Defamation Act 2005 (SA)
Privacy Act 1988 (Cth)
D Other
Department of Parliamentary Services, Parliament of Australia, Do Australians have a
legal right to privacy? (2005)
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