The Emerging Tort of Privacy A Comparative Overview

The Emerging Tort of Privacy: A Comparative Overview Penelope Watson Macquarie University Sydney, Australia 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 1

‘No man, wrote John Donne more than three hundred years ago, is an island entire of itself. Hell, says Jean-Paul Sartre in our times, is other people. ’ (Zelman Cowen) 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 2

Overview • Privacy widely recognised human right – UN Universal Declaration of Human Rights (1948), European Convention on Human Rights (Art 8), International Covenant on Civil and Political Rights (ICCPR) • What is privacy? • Pathways to domestic protection of privacy: (i) Bill of rights/constitution (ii) Common law (tort/equity) (iii) Statute • Tort privacy outside Aust – USA, UK, NZ, Canada • Current position in Australia – common law/ law reform proposals • A new statutory tort of serious invasion of privacy for Aust? 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 3

Privacy and tort: the beginning USA - 1890 - ‘The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip …has become a trade… pursued with industry as well as effrontery… It both belittles and perverts… Triviality destroys at once robustness of thought and delicacy of feeling. ’ Warren & Brandeis, (1890) Harvard LR Australia - 1937 - ‘English law is rightly or wrongly clear that the natural rights of an occupier do not include freedom from the view and inspection of … other persons’ Victoria Park Racing v Taylor (1937) 58 CLR 479 (Dixon J) UK - 1991 - ‘It is well known that in English law there is no right to privacy and …no right of action for breach… present case [is] a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made’ Kaye v Robertson [1991] FSR 62, 66 (Glidewell J) 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 4

Privacy: incidental tort protection n Defamation (esp truth + public int) n Action on case - nuisance (watching & besetting) n Trespass to land & person n Malicious/injurious falsehood n Passing off n Conspiracy n Wilkinson v Downton n Breach of confidence – equity/ now tort? 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 5

Emerging tort: Invasion of Privacy n Adapt breach of confidence? n Adapt Wilkinson v Downton? n Create /recognize a new tort? n Common law or statute? n USA UK NZ Canada Australia n Significance of human rights instruments? n n 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 6

USA Restatement of Torts (2 nd) 1977, ss 652 A – 652 E S 652 A “one who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other. ’ • Intrusion upon seclusion ** • Appropriation of name or likeness • Publicity given to private life ** • Publicity placing person in false light NB Constitutional right to privacy - 14 th amendment - v broadly interp - But 1 st amendment - freedom of speech - usually trumps 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 7

UK (1) Judicial option 1 - Transform Breach of Confidence Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 8

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Facts • Mirror : ‘Naomi: I am a drug addict’ + covert pics in front of identifiable Narcotics Anon building + ‘chocolate soldier’ article • At trial - awarded ‘modest’ ₤ 2500 + ₤ 1000 aggravated damages - breach of confidence House of Lords Lord Nichols ‘no overarching, all-embracing cause of action for breach of privacy’ in UK (cf USA): Wainwright ‘but protection of various aspects of privacy is a fast developing area of the law’ eg Hosking v Runting (NZ) Human Rights Act 1998 (UK) spurred development in UK 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 10

• Campbell concerns only wrongful disclosure of private info (3 rd USA category - Restatement) • Breach of confidence well estab in equity – restrained as unconscionable conduct – akin to breach of trust • Now no requirement of initial confidential relationship – Att-Gen v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 • Now law imposes ‘duty of confidence whenever person receives info he knows or ought to know is fairly and reasonably to be regarded as confidential’ • ‘confidential’ awkward – ‘more natural description is… private. The essence of the tort [of breach of confidence] is better encapsulated now as misuse of private information’ [par 14] 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 11

European Convention on Human Rights – Articles 8 (privacy) & 10 (free speech) – informed development of C/L [par 16] ‘the values enshrined in Arts 8 & 10 are now part of the cause of action for breach of confidence’ Campbell recognition of narrow tort re wrongful publicity given to private lives – future? 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 12

Mosley v News Group Newspapers Ltd 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 13

Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) • UK High Court - Pl got ₤ 60, 000 for breach of confidence (Eady J) • Circs were such that ‘a reasonable expectation of privacy’ • Human Rights Act 1998 (UK) required this conclusion • therefore relevant values in the case were articles 8 and 10 of the European Convention, as decided in Campbell - must be weighed against one another. • NB Mosley took the case to the European Court of Human Rights but lost - Case of Mosley v The United Kingdom 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 14

New Zealand: Judicial option (2) recognise a new tort Bradley v Wingnut Films [ [1993] 1 NZLR 415 n ‘splatter film’ – tombstone –W v D + breach of privacy + defamation n tort of invasion of privacy part of law of NZ but caution needed n must be public disclosure of private facts… highly offensive & objectionable to reasonable person of ordinary sensibility n ‘to accept breach privacy on these facts would be to extend the boundaries of an emerging tort beyond what was safe’ 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 15

New Zealand Hosking v Runting [2005] 1 NZLR 1 Facts TV celebrity – IVF twins - New Idea! mag took covert pics of twins shopping in public place n Injunction sought - intrusion into private life - risk of kidnap etc n n At trial - refused – no general tort of privacy recognised n + pics not ‘private’ and publication not offensive 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 16

Court of Appeal n Pls lost on facts - but new tort of invasion of privacy recognised (3: 2) Gault P and Blanchard J (Tipping J concurring) (maj) n Aust, UK, Canada, USA considered n UK developed tort of privacy via breach of confidence – ‘although by a different route… not substantially different’ to NZ n n n NZ Bill of Rights Act 1990 - does not recognize right to privacy but affirms NZ commitment to ICCPR (privacy Art 17) – signif? Other NZ legislation protecting privacy – Privacy Act 1993, Harassment Act 1997, Broadcasting Act 1989 etc therefore courts should act alongside Parl’t to protect privacy & give civil remedy 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 17

NZ: Recognises a 2 nd new tort C v Holland [2012] NZHC 2155 (NZ High Court) (Whata J) n n Facts - similar to Giller - unauthorized filming of Pl by intimate partner – hidden camera in bathroom - but no disclosure to others separate C/L tort recognised - intrusion into private affairs/space, or ‘intrusion upon seclusion’ - aim: to ‘maintain as much consistency as possible with the North American [intrusion] tort. ’ (i) intentional and unauthorized intrusion (ii) into seclusion (namely, intimate personal activity, space or affairs) (iii) involving infringement of a reasonable expectation of privacy (iv) that is highly offensive to a reasonable person, in the sense of causing ‘real hurt or harm. ’ 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 18

Canada: Ontario recognises a 2 nd new tort • Privacy - mix of C/L, statutory tort (4 C/L provinces), Civil Code (Quebec) • Privacy not enumerated right under the Canadian Charter of Rights and Freedoms – but eg section 8 (search and seizure) instrumental in defining privacy • Quebec Charter of Human Rights and Freedoms and the Civil Code of Quebec contain enforceable provisions re privacy • 2005 - Ontario Court of Appeal: ‘there is no free-standing right to dignity or privacy under the Charter or at common law. ’ • But Ontario recognises tort of appropriation of personality (similar USA) 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 19

Jones v Tsige 2012 ONCA 32, 108 OR (3 d) 241 Facts – Pl & Def in Jones worked for diff branches of same bank - gave Def access to personal private info re Pl Def in a relationship with Pl’s former husband - Def accessed Pl’s bank a/cs min of 174 times on work computer Court, ‘[r]ecognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society. ’ ‘It is within the capacity of the common law to evolve to respond to the problem … most importantly, we are presented in this case with facts that cry out for a remedy…the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy. ’ 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 20

Australia: judicial option (3) - Trial/ intermediate courts lead the way… ABC v Lenah Game Meats P/L [2001] 208 CLR 199 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 21

• Possum slaughter at abattoir filmed by unknown trespasser – film passed to ABC 7. 30 Report by Animal Lib • Lenah corporation granted interim & mandatory injunction S/C Tas against ABC & Animal Lib – ABC appealed – HCA: no privacy tort • ‘the time is ripe for consideration whether a tort of invasion of privacy should be recognised’ (Callinan J) • ‘the law should be more astute than in the past to identify and protect interests of a kind which fall within the concept of privacy’ (Gleeson CJ) • ‘In consequence of Victoria Park a general tort of privacy did not develop in Aust as it did in USA and elsewhere…[but] more was read into …Victoria Park than the actual holding required’ (Kirby J) • ‘foundation [of privacy rights] is human dignity’ 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 22

Grosse v Purvis [2003] QDC 151 • Facts - Pl mayor, Qld; Def work associate & former lover • Pl sued for invasion of privacy, harassment, intentional infliction of physical harm, nuisance, trespass, assault, battery, negligence • Sought compensatory, aggravated & exemplary D + permanent injunction restraining Def from ‘touching, approaching, harassing, pestering or communicating with Pl’ • Pl alleged 6 yrs of stalking, loitering outside and breaking in Pl’s home, accusing Pl of prostitution, following her to business functions, assaulting her male friends, constant telephoning incl death threats, etc • Pl suicide attempt, PTSD 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 23

Skoien J Privacy • Discusses ‘stalking’ – incl harassment - Offence under Qld Criminal Code s 359 A-E • ‘thus the offence in Qld of unlawful stalking involves an invasion of the privacy of the victim’ [420] • ‘in all of the offences contained in the Code… an actionable tort is encompassed so that the victim would have the right to sue in the civil court for damages… why would that not also apply to a new offence like stalking…? ’ [420] • Discusses Lenah Game – ‘within the indiv judgments certain critical propositions can be identified… to found the existence of a common law cause of action for invasion of privacy’ • Agreement that Victoria Park not/ no longer an obstacle to privacy 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 24

• Endorses Jeffries J in Tucker v News Media (NZ, 1986): ‘right to privacy …valid cause of action in this country…seems a natural progression of the tort of intentional infliction of emotional distress and in accordance with the renowned ability of the common law to provide a remedy for a wrong’ • [422] ‘it 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 … In my view there is such an actionable right’ • Essential elements: ‘willed act by def (ie intent) + such degree of seriousness that ordinary person should not reasonably be expected to endure it’ [444] • Compensatory, aggravated & exemplary D awarded for breach of privacy $178, 000 Learned Friends_ Emerging Tort 3/19/2018 Privacy_Sri Lanka_2015 25

Jane Doe v Australian Broadcasting Corp [2007] VCC 281 • County Court of Victoria - rape victim sued ABC, reporter, subeditor • identified victim in 3 broadcasts 2002 • referred to sentencing of offender (V’s estranged husband), rapes within marriage in home, named Pl’s suburb, one named Pl as V • worsened Pl’s emotional condition from rapes – PTSD – unable to work • journalist & sub-editor pleaded guilty to pub info ID victim of sexual offence - Judicial Proceedings Act 1958 - both signed written apology 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 26

• Pl sought compensatory, aggravated and exemplary damages & equitable compensation incl exemplary D for breach of confidence, breach statutory duty, negligence, breach of privacy Hampel J • upheld claim all 4 grounds • legislation conferred right on the Pl to sue for compensation • breach of a common law duty of care • breach of confidence claim upheld - Giller v Procopets (2004) not followed - decision here based on recent expansion of breach of confidence in C/L, esp UK • impact of Human Rights Act 1998 (UK) and the European Convention on Human Rights in the UK noted 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 27

• but UK decisions relied on ‘all concern the C/L development of breach of confidence and breach of privacy causes of action’ • English approach also represents C/L development of breach of confidence in Australia - based on Gleeson CJ in Lenah – optimistic? • Pl had ‘reasonable expectation of privacy’ because disclosure related to sexual matter, and esp because non-consenting • Hampel J - merging tortious and equitable doctrines to re-shape breach of confidence problematic in Aust • recognize new tort relating to disclosure of private facts as alternative ground for compensation • re unjustified (not willful) publication of personal information which Pl reasonable expectation privacy 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 28

• see detailed discussion of assessment of D - $234, 190 • Breach of confidence equity but ‘appropriate measure of compensation is by reference to C/L principles’ • $85, 000 for psych injury from breach of confidence • + ‘hurt, distress, embarrassment, humiliation, shame and guilt’ – ‘responses commonly experienced by victims of sexual assault’ (experts) - $25, 000 • Conduct of litigation ‘made the apology …meaningless’ ‘oppressive, unfair and inappropriate… invidious and unfair pressure on [litigants and] legal advisers’ • But no exemplary D – related to litigation not publication 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 29

Giller v Procopets [2008] VSCA 236; [2008] 24 VR 1 Facts • Def distributed videos of consensual sex betw Pl and himself to her friends/family after relationship breakdown • Pl sued in breach of confidence, intentional infliction mental harm under W v D, breach of privacy – only Aust appellate case since ABC v Lenah Game • Pl failed at trial (Gillard J) on all 3 grounds – both sides appealed (def on findings of fact) 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 30

Court of Appeal (Vic) Damages for emotional distress • Recoverable for breach of confidence – 1 st Aust appellate case to approve but similar approach UK • Pl awarded $40, 000 incl $10, 000 for aggravation (Neave JA, agreed Maxwell P) – Ashley JA would have awarded less • Giller + Grosse + Jane Doe – signif higher awards than UK cases – most UK around 3 -4, 000 pounds (eg Douglas v Hello!, Campbell, Mckennitt v Ash) but note Moseley (60, 000 pounds) • NB - V interesting dissent (Maxwell P) recognising new tort of intentional infliction of emotional distress (IIED) for Aust 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 31

Held • Pl won in breach of confidence - showing videos breach of equitable duty of confidence • NB – refer to ALRC and NSWLRC recomm re C/L tort and B/C • Mental distress a compensable loss re breach confidence • (Neave JA) - Avail as equitable damages and under Lord Cairns Act (statutory right to damages in substitution or in addition to specific performance/injunction) • (Ashley JA) - Supported by principle and authority - relying on UK privacy (breach confidence) cases • Aggravated damages allowed but not exemplary • No need to decide re recognition of privacy tort 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 32

Australia: Option 4 – create statutory tort Recent Law Reform Commission input o ALRC, Review of Aust Privacy Law, DP 72 (2007) o ALRC Report, For Your Information (2008) o NSWLRC Report 120 (2009) – Invasion of Privacy o incl Appendix A - Civil Liability Amendment (Privacy) Bill – replicated Appendix B, Aust Gov’t, Issues Paper o Aust Gov’t, Issues Paper, A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy, Sept 2011 o ALRC Summary Report 123, Serious Invasions of Privacy in the Digital Era, June 2014 (released 3/9/2014) 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 33

NSWLRC Report 120 (2009) – Invasion of Privacy Introduction 1. 2 • ALRC (2007) recommend Fed legislation to provide stat cause of action for serious invasion privacy natural persons • Legislation should identify (non-exhaustively) invasion as including: (i) Interference with indiv’s home or family life (ii) unauthorised surveillance (iii) Interference with, misuse or disclosure of correspondence or private written, oral or electronic communic (iv) Disclosure of sensitive facts re private life 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 34

• Pl need to show reas expectation of privacy + highly offensive to reas person of ordinary sensibilities • Court must weigh public interest in maintaining Pl’s privacy against other matters of public interest (free speech etc) Introd 1. 3 ALRC recommendations: • no proof of damage required • Intentional or reckless acts only • Exhaustive range defences • Court able to choose most approp remedy in circs • Any common law action for invasion of privacy should be abolished 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 35

4. 2 Scope of privacy • Tends to be over-inclusive eg in USA has become ‘a forum for contesting rights of women (abortion), use of contraceptives, freedom of homosexuals and lesbians, right to obscene or pornographic publications, problems generated by AIDS (Wacks) • Terms of Ref NSW – investigate potential role of privacy in private law ie when can one indiv sue another, usually for compensation • excludes constitutional law and statutory regulation • Privacy tort should protect in 2 situations: 1. Def has disclosed private info about Pl (info privacy) 2. Def has intruded on Pl’s solitude, seclusion, private affairs 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 36

• HCA in Lenah Game - saw these 2 out of four USA torts as: ‘coming closest to reflecting a concern for privacy as a legal principle drawn from fundamental value of personal autonomy’ (Gummow, Hayne JJ, Gaudron J agreeing) • Other 2 USA torts would NOT be included – appropriation used to protect commercial interests; false light used to protect reputation 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 37

4. 11 Filling the gaps – how? • Extend existing actions, or • Create specific new causes of action, or • Create general privacy cause of action 4. 14 Creating general cause of action • ‘…tampering with existing causes of action or developing specific torts would not provide satisfactory basis for the ongoing development of law of privacy in climate of dynamic societal and technological change’ • ‘Recognising the inherent value of privacy does provide such a basis. It also fills any gaps that manifest themselves’ • Assumes info privacy + intrusion on seclusion at first but these ‘cannot be taken as finally determining the boundaries of privacy, which will evolve continuously’ 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 38

5. 54 -57 Statutory cause of action not statutory tort • Objective of proposed legislation is to create stat cause of action not stat tort 1. Torts do not usually require balancing of interests to determine liability – ie different methodology from tort 2. Stat cause of action should not be constrained by tort rules/ principles (a) No need to specify whether intent required – would have to if tort - ‘this is a matter appropriately left to development in case law’ (b) Unnecessary to specify whether proof of damage required – would have to if tort (actionable per se vs proof of harm) • Stat cause of action ‘designed primarily to protect Pl from suffering non-econ loss, including mental distress’ 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 39

Common features ALRC, NSWLRC, Vic LRC 1. Statutory cause of action not stat tort 2. Living persons only not corporations 3. Intrusion on seclusion + info privacy 4. ‘reas expectation of privacy’ test – privacy not defined 5. No proof of damage required 6. Need to weigh competing interests – esp free speech 7. Compensatory damages, injunctions, declarations – no exemplary D 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 40

Serious invasions of privacy: A Commonwealth statutory tort for Aust? • ALRC Summary Report 123 (June 2014) – released 3/9/14 Recommendations • Enacted in stand-alone C’wlth Act – Serious Invasions of Privacy Act (Cth) - external affairs power s 51(xxix) – Australia ratified ICCPR (art 17 privacy) (Ch 4) • Described in Act as a tort – will encourage courts to draw on estab principles – promote certainty, consistency, coherence • Invasion must be by either (i) intrusion into seclusion, or (ii) misuse of private info (ch 5) • Reasonable expectation of privacy by Pl (Ch 6) 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 41

• Mental element - Intentional or reckless – not negligence (Ch 7) - Must be serious (Ch 8) • Need not cause damage + damages for emotional distress may be awarded (Ch 8) • Public interest in privacy must outweigh any countervailing public interests (Ch 9) – should be element of tort not defence • eg freedom of speech incl political communication, freedom of press, public health & safety, national security • Action limited to natural persons • Actions should not survive death (for Pl/against Def) • Poss abolition specific C/L tort but not Breach of confidence • Federal, state and territory courts to have jurisdiction 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 42

Defences (Ch 11) • • Lawful authority Conduct incidental to defence of persons/property Consent Necessity Absolute privilege Publication of public docs Fair reporting of public proceedings Remedies (ch 12) • Damages incl for emotional distress + exemplary D in exceptional circs – stat cap to apply • Account of profits • Injunctions • Delivery up, destruction, removal of material • Correction & apology orders • Declarations 3/19/2018 Learned Friends_ Emerging Tort Privacy_Sri Lanka_2015 43