Greenleaf, Graham --- "Privacy at common law - not quite a dead possum" [2001] PrivLawPRpr 57; (2001) 8(7) Privacy Law and Policy Reporter 129

Privacy at common law — not quite a dead possum

Graham Greenleaf

Two recent cases, one before Australia’s High Court, and the other now on appeal to the House of Lords from the Court of Appeal of England and Wales, have shown that the issue of the common law’s recognition of a right of privacy is re-emerging. It has been long dormant in Australia. In the UK, it is more accurate to say that it still refuses to be put down. This special issue of Privacy Law & Policy Reporter focuses on these and other new developments in the common law’s protection of privacy.

In November 2001 the Australian High Court, in the course of deciding Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[1] made it clear that its decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor[2] did not stand for any significant propositions either supporting or impeding the development of common law protection of privacy. Lenah concerned attempts by the owners of a possum abattoir to stop the ABC from screening film of the possum butchering on Lenah’s premises, which had been made by an unknown trespasser, in circumstances which, it was conceded, did not amount to a breach of confidence. Patrick Gunning’s casenote (see p 137) outlines the many interesting issues that arose in the case, in particular the willingness of the various members of the Court to consider development of common law protection of privacy when an appropriate case arises in future. Gaudron, Gummow and Hayne JJ rejected Lenah’s claim, in part, because it was a corporation and as such could not benefit from any privacy tort if one existed. Lee Bygrave analyses the Court’s reasoning on this point in comparison with approaches taken in other countries and concludes that there are complexities that the Court still needs to take into account (see p 130). Jonathan Horton adds comments supporting the dissenting judgment of Callinan J (see p 143).

In December 2001 the English Court of Appeal handed down its decision in Home Office v Wainwright.[3] Wainwright involved two plaintiffs being required to strip themselves before they were allowed to visit a prisoner, in circumstances that led to mental distress. Like Lenah, the significance of Wainwright is that its facts do not involve anything that could be considered a breach of confidence, and it therefore requires the courts to consider the protection of privacy per se. The unsuccessful plaintiffs in Wainwright have been given leave to appeal to the House of Lords. Ashley Serr, counsel for the plaintiffs, outlines the decision of the Court of Appeal, and comments on some of the issues which may require consideration by their Lordships (see p 140).

Whatever developments emerge from the appeal in Wainwright, or from future cases before the High Court of Australia, the incremental processes of the common law are likely to ensure that the metes and bounds of any common law protection of privacy will remain obscure for many years. This is particularly so given the many different situations that tend to be described as ‘privacy issues’, including intrusive conduct, public disclosure of private facts, and some forms of misappropriation of reputation or identity (at least in the US).

An alternative approach, which was repeatedly rejected in the 1970s and 1980s in the legislatures of most common law countries other than the US, is a statutory tort of invasion of privacy which spells out in some detail the limits of the remedy. This approach is now under active consideration in Hong Kong, and we include details of the Hong Kong Law Reform Commission’s draft proposals which will be the subject of a final report likely by the end of this year (see p 135). It may be that this is what is needed to take privacy protection beyond the last 20 years’ focus on ‘information privacy principles’, whether or not the common law courts start to provide greater protection of privacy. v

Graham Greenleaf, General Editor.

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[1] [2001] HCA 63.

[2] [1937] HCA 45; (1937) 58 CLR 479.

[3] (2001) EWCA CIV 2081.