Invasions of privacy should have recourse via the creation of a statutory tort, the Law Council of Australia (LCA) has recommended.
The peak group representing Australian lawyers outlined the case for the government to create a new tort — which creates avenues to seek compensation or an injunction through the courts — as part of its review of the Privacy Act 1988 (Cth).
The LCA’s submission supports the position taken by the Australian Law Reform Commission in its 2014 report, ‘Serious Invasions of Privacy in The Digital Era’.
According to LCA president Tass Liveris, without a statutory tort, victims were limited in their ability to seek compensation for serious privacy breaches. He added that the issue had become increasingly relevant as new technologies made it easier for these kinds of privacy breaches to occur.
“If an individual is harmed by a serious invasion of their privacy — such as someone’s private activities being watched or recorded, or private information like medical records being made public — there is currently no tortious right of action,” Liveris said.
“Technological advances have increased the risk of these types of breaches, while limiting the capacity for our current legislative framework to keep pace,” he said.
The LCA’s view is that a new statutory tort is appropriate if policymakers ensure there are high thresholds in place to limit breaches to serious invasions of privacy only. Liveris said the scope of the tort must also be carefully considered and drafted to address the risk of unintended consequences.
“The location of a new statutory tort will also need to be carefully considered, particularly if it is to apply to intrusion upon seclusion (e.g. physically intruding into a person’s private space or by watching, listening to or recording private activities or private affairs) as the Privacy Act primarily regulates information privacy,” he said.
The LCA has also used its submission to advocate for an updated definition of ‘personal information’ in the Privacy Act, and for the clarification of existing exemptions in relation to small businesses, employee records and journalism.