In the case of Walller v Barrett,[1] (each a pseudonym), Tran J at the County Court in Victoria recognised a separate tort of invasion of privacy under Australian common law.

The case marked by a background of “intense and distressing trauma and deep family dysfunction“, involved a claim by a daughter concerning an untrue statement made by her father that was “particularly distressing” to her.[2] As the statement was untrue, the daughter had no actionable claim in breach of confidence. However, the Court held that the statement was incontrovertibly within the daughter’s private sphere and to any reasonable person it would have been highly offensive. In these circumstances, the Court awarded $30,000 in damages under the tort of invasion of privacy.

In making its findings, the Court stressed that it was not creating a new tort but rather recognising the “bifurcation” in the existing tort of 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”. The Court considered that without the tort, there would be no remedy for untrue but intimate statements, such as pornographic deepfakes, an area of pressing concern in today’s digital world.

Although there is a relatively high bar for invasion of privacy, will recognition of a separate tort increase the risk of handling personal information by organisations? Unlike the recently proposed statutory tort of serious invasion of privacy, the common law tort offers no clear exemption for journalists and the media.[3]

How does privacy differ from confidence?

“… Privacy is a form of opacity, and opacity has its values”.[4] Privacy is “…potentially a very wide concept” including the right to be left alone if you so wish.  It is the essence of one’s dignity, personal autonomy and the well-being of all human beings. [5]

In terms of what is private or not, “… there is a large area in between … An activity is not private simply because it is not done in public. … Certain kinds of information about a person, such as … health, personal relationships, or finances … as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved”. A useful practical test is whether “… disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities …”.[6]

The Court discussed the difficulty of the victim of a published sex tape or vital social media post who would have to prove the truth before being able to claim under breach of confidence, thus exposing their intimate life even further. The victim could be spared that process when claiming under invasion of privacy.

The tort is intended to protect the privacy and the human dignity that is associated with the maintenance of privacy “rather than material things in confidence”. Privacy protection in law “… should not artificially be limited to … informational privacy, separately from protection of physical privacy … The concerns of dignity, autonomy, liberty, psychological well-being and security, intimacy, intellectual development, and social value of privacy, all require adequate protection of both informational and physical activity.” A new tort is required to separate the very different concepts of “confidential” and “private”.

Australian common law on the path to privacy

The new tort has developed to address the changing societal realities, not least due to the “negative sociocultural and intellectual impacts of broadcasting gossip for profit” by the traditional media and social media.

Since 1937 the case of Victoria Park,[7] long stood as a bar to developing a tort of invasion of privacy. Here the court held that if a person fails to ensure his or her own privacy, for example, by erecting higher fences, no question of breach of trust or confidence can arise. A court will not stop a neighbour from opening new windows overlooking his neighbour’s premises, despite interfering with his neighbour’s preference and comfort.

In 1980, the Australian Government ratified the United Nations International Covenant on Civil and Political Rights. In her judgment, Tran J refers to “importance of privacy as a fundamental common law right” and states “The common law can and should be influenced by the protection given to privacy under Article 17 of the International Covenant on Civil and Political Rights, which has been ratified by Australia”.[8]

Almost 23 years ago, Australia’s top court cast doubt on Victoria Park. In Lenah Game Meats,[9] High Court’s Gleeson CJ concluded that “… having regard to current conditions in this country, and developments of the law in other common law jurisdictions, the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country, or whether the legislatures should be left to determine whether provisions for a remedy for it should be made”.

In 2003, District Court Judge Skoien SJ in Grosse v Purvis[10] admitted in a “logical and desirable” and “bold step to take”, seemingly the first in Australia, that damages can be awarded “… based on the actionable right of … privacy”. In 2007, County Court’s Hampel J in Doe v ABC[11] referred to a “rapidly growing trend towards recognition of privacy as a right in itself deserving of protection”.  In 2008, the Victorian Court of Appeal’s Neave JA concluded that “strengthening the protection afforded to privacy interests by existing causes of action – supports my conclusion that damages should be available for breach of confidence occasioning distress”. Meanwhile, in 2004, the tort of invasion of privacy was recognised under common law in New Zeeland,[12] and the UK.[13]

In 2014, the Australian Law Reform Commission’s (ALRC) Report 123 delivered a design of a statutory cause of action of serious invasion of privacy to protect people in the digital era.[14] In October 2020, the Government issued an Issues paper[15] about the reform of the Privacy Act 1988. One question was whether a statutory tort of invasion of privacy was needed. In 2023, the Government agreed-in-principle to a new tort based on the ALRC’s model.[16]

On this background (and with the term ‘deepfake’ being born in 2017), Tran J recognised, consistent with the common law method, that action for invasion of privacy already exists under breach of confidence. Whilst the creation of a new actionable tort should be left to the legislature, the same did not apply to the “recognition” of the tort, the Court held.

Essential elements of the Australian tort of invasion of privacy

The Court agreed that relief should continue to be available for the publication of private matters without justification in circumstances considered by a reasonable person highly offensive. However, it preferred not to attempt to define the essential elements of the tort and respectfully disagreed with the four-part test formulated in Grosse.[17]

However, some elements of the tort can be identified:

• infringement of the fundamental common law right to privacy, for example, by way of publication. However, the tort is not limited to what is “confidential”, the truth of the information, or what was said;
• suffered by an individual;
• the infringement by way of publication is highly offensive to a reasonable person of ordinary sensibilities (however, the Victorian Court of Appeal previously disregarded this element);[18] and
• liability may arise due to an objective assumption of responsibility rather than any subjective knowledge.

The Court also recognised that “an action for invasion of privacy must be carefully limited” due to its possible impact on free speech and autonomy of action.

Conclusion

The privacy interest protected by the new tort is distinct from reputation interest protected by defamation and injurious falsehood, duty of care interest protected by negligence, or confidentiality interest protected by the equitable breach of confidence. The new tort fills a gap in protection from wrongs that interfere with the private sphere of individuals, where other torts would not. Whilst this is only a County Court decision, it draws on higher court decisions and appears highly persuasive.

Developed on facts of serious invasion of privacy such as persistent stalking,[19] or publication by the media of a rape victim’s name without justification,[20] there is a relatively high bar for invasion of privacy to occur. At the same time, the Court envisages that the separation of the tort from breach of confidence will enable its future principled development.

There will no doubt be legal actions in the context of business exploitation of personal information. For example, the monitoring or accessing of private communications at work, any inadvertent but reckless disclosure of information, and any use or sharing of personal information for purposes outside peoples’ reasonable expectation, might attract a claim or even class action under breach of confidence or invasion of privacy or both.

The Court made a reference to the media when referring to the publication of inaccurate statements about intensely private matters, leaving the publisher in a better legal position (and with more “clicks”), than the victim. There is an “urgent need to protect privacy in the world of telephoto lenses, deepfakes, social media and clickbait”, in a world of “a decline in market share of big media; and the pervasive, “democratising” force of social media”. The new tort goes further than the proposed statutory tort of serious invasion of privacy which, if passed in its current form, expressly exempts journalists from liability.

Relief under the tort includes damages for mental distress. In this particular case, the privacy damages exceeded the confidentiality damages.

[1] WALLLER Lynn (A Pseudonym) v BARRETT Romy (A Pseudonym) [2024] VCC 962 (28 June 2024).

[2] The statement that she had apologised to him by email after a counselling session during which she said that it would have been easier if he had died following a stabbing incident in the past which was orchestrated by her mother, his wife at the time. The statement was “particularly distressing” to the very vulnerable daughter because it made it look as if she was admitting to wrongdoing, which the Court agreed she was not. The only way for the daughter to counter the inaccuracy would be to engage with the press and disclose more intimate information.

[3] Sections 7(4)(b), 8 and 15, Schedule 2—Statutory Tort for Serious 18 Invasions of Privacy, Privacy and Other Legislation Amendment Bill 2024 (link).

[4] Lenah Game Meats – quote extracted from Rosen J, The Unwanted Gaze: The Destruction of Privacy in America (1st ed, Random House Inc, 2000).

[5] Hosking v Runting [2004] NZCA 34, Tipping J.

[6] Lenah Game Meats [2001] HCA 63; (2001) 185 ALR 1.

[7] [1937] HCA 45; (1937) 58 CLR 479.

[8] Under Article 17 “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation…. Everyone has the right to the protection of the law against such interference or attacks.”.

[9] [2001] HCA 63; (2001) 185 ALR 1.

[10] [2003] QDC 151 (16 June 2003).

[11] [2007] VCC 281.

[12] Hosking v Runting [2004] NZCA 34.

[13] Campbell v MGN [2004] UKHL 22.

[14] ALRC Report 123, September 2014 (link).

[15] Review of the Privacy Act 1988 (Cth) – Issues paper, 2020 (link).

[16] Government Response, Privacy Act Review Report, September 2023 (link).

[17] [2003] QDC 151 (16 June 2003).

[18] Giller v Procopets [2008] VSCA 236.

[19] Grosse v Purvis [2003] QDC 151 (16 June 2003).

[20] Doe v ABC [2007] VCC 281.