New Australian Privacy Right

Article by Duncan Giles and Gayle Hill

Australians can now recover significant civil damages for invasions of privacy, according to an important recent Queensland decision which, for the first time, does not rely on existing privacy statutes.

All Australian privacy statutes, including the Privacy Act 1988, regulate the way in which personal information can be collected, stored, used and disclosed. In one of the most significant advances in the history of Australian privacy law, Senior Judge Tony Skoien of the Queensland District Court recently awarded a plaintiff $178,000 to compensate her, not for inappropriate dealing with her personal information, but for invasions of her privacy generally.

The judgment in the case, Grosse v Purvis, was handed down on 16 June and is very important because it finds a new common law right to recover damages (similar to rights with respect to nuisance, trespass and negligence), which is additional to, and independent of, rights under existing privacy statutes.

In making the award, Judge Skoien declared that Australian law now allows an individual to recover damages for mental, psychological or emotional harm, including embarrassment, hurt, distress and post traumatic stress disorder, where ‘a willed act of another intrudes on their privacy or seclusion in a manner which would be considered highly offensive to a reasonable person’. He also held that damages could be awarded for any enforced changes of lifestyle caused by such an intrusion upon a person’s privacy or seclusion.

Although Judge Skoien recognised that his judgment was a bold first step in Australia, he considered it to be both logical and desirable. He found that conduct such as

• following, loitering near, watching or approaching a person
• contacting a person in any way, including by telephone, mail, fax, email or any other technology
• loitering near, watching, approaching or entering a place where a person lives, works or visits
• giving offensive material to a person or leaving it where it can be found by the person
• an intimidating, harassing or threatening act against a person, whether or not involving a threat of violence
• an act of violence, or a threat of violence, against any property,

may justify an action for invasion of privacy if such conduct intruded on an individual’s privacy or seclusion in a highly offensive way and caused mental, psychological or emotional harm or prevented or hindered them from doing an act they were lawfully entitled to do.

The case is also important as the plaintiff’s damages award was significantly increased because of Judge Skoien’s finding that the defendant’s actions aggravated the damage suffered.

The finding is a first for Australia, and the defendant has indicated that he will appeal, but the reasoning is consistent with observations made by members of the High Court on 15 December 2001 in ABC v Lenah Game Meats that such an independent right to compensation for a civil wrong (or ‘tort’) may exist. A decision such as the one in Grosse has therefore been anticipated by some privacy commentators since the decision in ABC v Lenah.

In Grosse, Judge Skoien also stated that, separate and distinct from the tort of invasion of privacy, an action for ‘harassment’ is a possible developing tort in Australia. Stalking would constitute ‘harassment’, however, in this case, Judge Skoien preferred to regard the protracted and persistent conduct of the defendant as an aggravated form of invasion of privacy.

Clearly, the potential for civil actions on the grounds of invasion of privacy and harassment has implications for employers including:

• possible vicarious liability for the conduct of employees
• ramifications in terms of occupational health and safety
• increased legal risks in respect of workplace bullying and other forms of harassment including stalking.

Interestingly, Ms Grosse and Mr Purvis met through their joint involvement as directors of a company. Although it was not a key issue in the judgment, this raises questions for the potential liability of employers in such situations. Under current employment laws, the categories of conduct that Judge Skoien found to constitute invasion of privacy, are dealt with under equal opportunity legislation (harassment and discrimination claims) and occupational health and safety legislation (bullying claims). Other laws that might apply include privacy legislation and criminal laws (such as stalking and assault).

It is unlikely that an employer would be found vicariously liable for the tort of invasion of privacy, as such behaviour is unlikely to be in the ordinary course of conduct as an employee. However, employers should be mindful of their general duty under the law of negligence to prevent reasonably foreseeable harm. An employer who had reason to suspect conduct of the kind engaged in by Mr Purvis that related to the workplace in some way and took no steps to prevent it would risk incurring liability in negligence, as well as under equal opportunity and occupational health and safety legislation.

Journalism is another area potentially affected by the new law. It is likely that if journalists and media organisation engage in highly offensive intrusions into people’s personal affairs, they may be exposed to new actions for damages for any emotional harm and distress caused. As the new law is unrelated to the Privacy Act, the defences and exemptions in that Act do not apply, although a defence of public interest may be available.