Pittwater Life June 2017 Issue

Business Life: Law
Business Life
Private lives: the right
to be alone with oneself
A
wise colleague once
observed that if
someone were to rush
into a room of people and
shout, “all is discovered – flee”
within minutes the room
would be empty.
We all have matters which
we consider to be private and
personal and not for public
revelation or discussion.
Sometimes the right to
privacy has been described
as the right to be alone with
oneself.
For many, many years,
law reformers and judicial
officers have pondered on
the question of whether there
should be a statutory cause of
action to protect the individual
against an invasion of privacy.
In 1979, the Australian Law
Reform Commission published
a report titled ‘Unfair
Publication, Defamation and
Privacy’. At that time the
Chairman of the Commission
was Justice Michael Kirby.
The report was a first
attempt at achieving uniform
defamation legislation. It
contained a Draft Bill and
within that Draft Bill was a
provision for the protection of
an individual’s privacy.
It took some three or four
years to produce the 1979
report and many years to
achieve uniformity of the law
of Defamation.
The statutory law of privacy
is still being debated.
In 2009 the Law Reform
Commission of NSW delivered
a report (No. 120 - 2009
titled Invasion of Privacy). Its
recommendation was “… as
part of a uniform law initiative
in Australia, NSW should
amend the Civil Liability Act
2002 (NSW) to provide a
cause of action for invasion of
privacy in the terms the draft
legislation appended to this
report”.
Additionally, the
Commissioner’s recommend
that:
n Actionability should not
depend on proof of damage;
n The action should be
restricted to intentional or
reckless acts on the part of
the defendant;
n An exhaustive range of
defences should be provided;
n The court should be able
to choose the remedy which
is most appropriate in the
circumstances;
n Any action at common law
for invasion of a person’s
privacy should be abolished;
and
n The Office of the Federal
Privacy Commissioner should
have a role in educating
the public about the
recommended statutory cause
of action.
The report set out the
processes involved in
ascertaining the desirability
of amending the law. The
Commissioners reported that
in their extensive enquiries,
which they state involved
the largest community
consultation exercise in the
with Jennifer Harris
Commission’s 33-year history,
that most Australians consider
that they have a right to
privacy and regret the erosion
of that right as an inevitable
result of technological
advance.
There is, of course,
widespread opposition
to such a right being
introduced. The question
of balancing the public’s
right to know as against an
individual’s sensitivity is one
primarily raised from media
organisations and is based
principally on the threat that
an action for invasion of
privacy poses to freedom of
expression, which includes
freedom of the press. There is
also a question as to whether
such a right of action might
pose a threat to freedom of
artistic expression. Within the
report the Commissioners
set out various examples
as found in case law which
demonstrated the gaps in
the law as failing to provide
a remedy for an invasion of
privacy.
They instanced several
English cases, one of which
required a plaintiff to claim for
breach of confidence in order
to obtain damages for an
invasion of privacy.
Secondly, a case illustrating
the filming and interviewing of
a well-known English television
actor while he was lying ill in
56 JUNE 2017
Celebrating 25 Years