Normann Witzleb [PDF 657KB] - Attorney-General's Department

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interests, including the public interest in the free flow of information. There are no prima facie entitlements in this area. The ALRC acknowledges this fundamental difference between privacy and the interests protected by trespass. Rather than providing for a separate defence of consent, it considers the existence (or absence) of consent as a circumstance that affects a person’s reasonable expectation of privacy 104 and the offensiveness of the defendant’s conduct. 61 Even though consent should therefore not technically be regarded as a defence, it is appropriate to expect the defendant to plead and, if necessary, to prove that the plaintiff consented. In the majority of cases, the parties agree on the factual matrix underlying the consent issue, i.e. on what the plaintiff may have said or done before the invasion occurred, but differ merely on the legal significance of this conduct, in particular whether it is sufficient to infer consent. For these cases, it will not matter whether ‘consent’ is regarded as an ‘essential element of the cause of action’ 105 or a defence. 62 However, proof of the facts constituting consent (or lack thereof) will sometimes remain a live issue. In these cases, the NSW proposal is problematic because it turns the absence of consent into a threshold issue that the plaintiff needs to establish before his or her action can succeed. In Cornelius v de Taranto, 106 for example, Mrs Cornelius commissioned Dr de Taranto, a consultant forensic psychiatrist, to prepare a medicolegal report on her. The defendant prepared the report and then sent copies of it to the plaintiff’s GP and a consultant psychiatrist. The plaintiff claimed that the defendant breached her confidence by disseminating the report without her consent. The issue of whether the plaintiff had indeed given consent to the dissemination of the report was the ‘crucial question of fact’ 107 in a trial that lasted six days and then went onto appeal. 108 63 Even though this case was concerned with a breach of confidence, there is no reason for the privacy action not to follow these established principles on consent. The onus would then be on a defendant who wishes to rely on consent to plead and, if necessary, prove it. Indeed, as the NSWLRC recommends that the new statutory privacy action should not affect breach of confidence and other causes of action at general law, 109 it is easily imaginable that a plaintiff in the situation of Mrs Cornelius may seek redress under both causes of action. If the onus in relation to consent differed between both causes of action and there was insufficient evidence on consent, a plaintiff would win the confidence claim but lose the privacy action. There does not appear to be any good reason for such a divergence. The more appropriate approach would be to require a defendant who seeks to rely on consent to establish the relevant facts and, following the ALRC proposal, to consider the existence of consent in the context of whether the plaintiff had a reasonable expectation of privacy. 104 This is also the approach followed in the UK: Murray v Express Newspapers Plc and Big Picture (UK) [2008] 3 WLR 1360; [2008] EWCA Civ 446, at [36] (Sir Anthony Clarke MR). 105 ALRC Report, at [74.159]. 106 Cornelius v de Taranto [2002] EMLR 6; [2001] EWCA Civ 1511. 107 Cornelius v de Taranto [2002] EMLR 6; [2001] EWCA Civ 1511, at [28] (Mantell LJ). 108 At trial, the claimant was awarded £3,750 to compensate her for the injury to feelings resulting from the unauthorised disclosure, and the appeal against this decision was dismissed. 109 NSW Draft Bill, cl 80. 22
64 Somewhat different considerations apply in relation to proving incapacity to consent. To that extent, the NSW recommendation that the onus should lie on the plaintiff is appropriate. The well-known case of Kaye v Robertson 110 provides an illustration. In that case, the plaintiff, a well-known television personality, was recovering from brain surgery in a hospital and journalists of a tabloid newspaper entered the plaintiff’s hospital room uninvited, took photographs and published these to accompany an ‘interview’ that the plaintiff was alleged to have given to the defendants from his hospital bed. In reality, the plaintiff was not in a fit state to give or withhold consent. It would be preferable to require the defendant to plead and prove that the plaintiff consented and to put the onus on the plaintiff to establish that any consent he gave was vitiated by incapacity or other defect. 65 Implied consent plays a role in a fair number of privacy cases, where a plaintiff had courted publicity but the media then make further publications which are not welcome to the plaintiff. Usually in those cases, the defendant will argue that a plaintiff invited public discussion of his or her life and therefore ‘waived’ privacy also in relation to subsequent publications. 111 However, the idea of blanket waiver for public figures has been decisively rejected by the House of Lords in Campbell v MGN Ltd. 112 Strictly speaking, these cases are not concerned with consent because the plaintiff will generally not have consented to the subsequent invasion or publication. The better argument in many cases will be that a plaintiff who fanned media interest in the past may in some circumstances have a reduced expectation of privacy. Where a person’s private life, through their voluntary revelations, has become a matter of legitimate public concern, the court will take this into account in the consideration of any countervailing public interest. In these circumstances, it becomes particularly apparent that claims of alleged consent can be difficult to separate from the wider issue of whether the plaintiff had a reasonable expectation of privacy. This confirms the view expressed above that questions of consent are best considered in the context of the cause of action. B. ‘Act or conduct was incidental to the exercise of a lawful right of defence of person or property’ The Proposals 66 All three proposals establish a defence for conduct that was ‘incidental’ 113 or ‘for the purpose’ 114 of lawfully defending personal or property rights. Comment 110 Kaye v Robertson [1991] FSR 62. 111 See, for example, Theakston v MGN Ltd [2002] EMLR 398, [2002] EWHC 137 (QB). 112 Campbell v MGN Ltd [2004] 2 AC 457; [2004] UKHL 22, at [57] (Lord Hoffmann); see also Douglas v Hello! (No. 3) [2003] 3 All ER 996; [2003] EWHC 786 (Ch), at [226] (Lindsay J). 113 ALRC Report, at [74-169]. 114 NSW Draft Bill, cl 75(1)(b). 23
Page 1 and 2: Submission to Commonwealth Governme
Page 3 and 4: B. Responses to the Questions in th
Page 5 and 6: will be the result of a process of
Page 7 and 8: 15 The two-pronged test proposed by
Page 9 and 10: 20 Both the ALRC and the NSWLRC wer
Page 11 and 12: 6. How best could a statutory cause
Page 13 and 14: 36 The ALRC does not provide any ar
Page 15 and 16: Acts, 63 the defence of ‘innocent
Page 17 and 18: surveillance in public places, the
Page 19 and 20: wrongful harm to a recognised legal
Page 21: prove the absence of consent before
Page 25 and 26: C. ‘Required or authorised by or
Page 27 and 28: discretion to grant the remedy that
Page 29: confidence has so far often assumed

Normann Witzleb [PDF 657KB] - Attorney-General's Department

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