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

15 The two-pronged test proposed by the ALRC and the VLRC is intended to raise the
threshold for privacy claims. However, there are at least four reasons why the specific
formulation of the test chosen raises concerns. First, the test of ‘highly offensive’ is
inherently vague. While this may not be problematic as long as courts are able to give
adequate and consistent content to the test, 22 its vagueness makes it difficult to use
this criterion as an exclusionary device. Second, the tests of ‘reasonable expectation of
privacy’ and ‘highly offensive’ are partly overlapping. Where conduct is likely to cause
substantial offence, it can be reasonably expected that the defendant will not engage in
it and respect the plaintiff’s privacy. Both of these points are also borne out when
Gleeson CJ’s statement in Lenah about the suggested use of that criterion is considered
in full:
Certain kinds of information about a person, such as information relating to
health, personal relationships, or finances, may be easy to identify as
private; 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. The requirement that disclosure or observation of
information or conduct would be highly offensive to a reasonable person of
ordinary sensibilities is in many circumstances a useful practical test of what
is private. 23
16 It becomes evident that, in that passage, Gleeson CJ was concerned with identifying
when information or conduct was private, rather than whether disclosure or observation
should be actionable. Furthermore, Gleeson CJ did not propose a two-pronged test that
required both a reasonable expectation of privacy as well as offensiveness of the
defendant’s conduct. Instead, his Honour identified the ‘highly offensive’ criterion a
useful guide to ascertain whether information or conduct was private. This differs from
the recommendations by the ALRC and the VLRC to use it as a threshold criterion to
identify the seriousness of a privacy invasion.
17 Thirdly, the offensiveness of behaviour is always dependent on its specific context. It
is difficult to determine the degree to which conduct is offensive unless the totality of
circumstances, including potential justifications for that conduct, are also considered.
This creates the difficulty that the public interest in the information or other defences
may become enmeshed in the enquiry of whether the defendant seriously interfered
with the plaintiff’s privacy. 24 Whether a privacy breach was serious or not, can
realistically only be determined in light of all the circumstances, including those relating
to the defendant. 25 This is the reason why English courts consider the test to be relevant
22 See generally, J Dietrich, ‘Giving Content to General Concepts’ (2005) 29 Melb ULR 218.
23 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [2001] HCA 63,
at[42].
24 See also Lord Nicholls in Campbell v MGN Ltd [2004] 2 AC 457; [2004] UKHL 22, at [22]; Mark Warby,
Nicole Moreham, Iain Christie (ed), Tugendhat and Christie: The Law of Privacy and the Media, 2 nd ed,
OUP, Oxford, 2011, at [5.09].
25 See also Gavin Phillipson, ‘Privacy in England and Strasbourg compared’ in Andrew T Kenyon and
Megan Richardson (eds), New Dimensions in Privacy Law: International and Comparative Perspectives,
CUP, Cambridge, 2006, 184, at 199 (supporting the use of the ‘offensiveness’ test for assessing the
‘overall impact of the entire publication’ rather than as a threshold test).
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