Horton, Jonathan --- "Common law right to privacy moves closer in Australia" [2001] PrivLawPRpr 62; (2001) 8(7) Privacy Law and Policy Reporter 144

Common law right to privacy moves closer in Australia

Jonathan Horton

In a recent edition of the Privacy Law &Policy Reporter, I commented on judicial statements in the United Kingdom indicating that a more general right to privacy is developing at common law.[1] Only a few months later, the High Court of Australia was called upon to decide the extent to which the common law of this country recognises some general right to privacy in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63. The case arose in this context: Lenah operated a facility which killed and processed brush tail possums for export. That activity was conducted lawfully. A person who was at least a sympathiser of Animal Liberation Ltd entered Lenah’s property, set up covert cameras and filmed the processes underway in the facility, including the stunning and killing of possums. Those actions were illegal, involving, at the very least, trespass and breaking and entering.

The footage was passed to Australia’s public broadcaster, the Australian Broadcasting Corporation (ABC), which informed Lenah it intended to telecast the film. Lenah commenced proceedings in the Supreme Court of Tasmania and immediately sought an injunction restraining publication. At trial, Lenah was not successful in obtaining the injunction. Lenah appealed. The Full Court of the Tasmanian Supreme Court upheld the appeal, and granted an injunction.

It is the appeal to the High Court which is of interest. The ABC argued that the Full Court should not have granted the injunction given the claim by the ABC that there was an absence of any infringement by it of any of Lenah’s legal or equitable rights. Lenah responded by asking the High Court to uphold the Full Court’s order on the basis that ABC had infringed Lenah’s ‘right to privacy’. The Court was therefore required to consider whether there is a tort of invasion of privacy at common law. There were also significant issues regarding the so-called implied constitutional right of free speech and whether injunctions can be given notwithstanding the absence of a legal or equitable claim. Neither of these issues are of direct relevance to the privacy issue and I say no more about them here.

Although Lenah’s appeal to the High Court was dismissed, there is some considerable discussion in the judgments about the existence or otherwise of a general right to privacy.

The real point in this case for the law of privacy is that the majority justices of the High Court expressly leave open the question of whether there is now a right of privacy at common law. Let me explain in more detail.

Each of the five judges in the majority in the case leave open, in some way, the possibility that there might develop in the future, a right to privacy at common law. When considered against the background of earlier cases which appeared to dismiss completely any notion that there might be a general right to privacy at common law, this is significant.

Chief Justice Gleeson concluded that ‘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’, but that there was a lack of precision of the concept of privacy which in turn provided a reason for caution in declaring a new tort of this nature.[2] It is interesting that the Chief Justice expresses the view that the reprehensibility of behaviour by which the film was obtained (and presumably any other material) is of no relevance if the publisher itself is not complicit in that improper conduct.[3]

Gleeson CJ can be taken as saying, in my view, in a cautious and subtle way, that there might be room for the gradual and careful development of a more encompassing right to privacy if the right cases, carefully defined, are presented to the Court.

Justices Gummow and Hayne JJ (Gaudron J agreeing) thought the earlier case of Victoria Park was not determinative of the non-existence of a right to privacy at common law.[4] For a long time, as Justice Kirby said, ‘more was read into the decision ... than the actual holding required’.[5] This, too, is significant. An important case long thought to prevent the development of a new tort, and subsequently relied on for that purpose, has effectively been removed as a precedential obstacle. These judge, too, noted the difficulty Lenah had in formulating with ‘acceptable specificity’, the ingredients of a general wrong of unjustified invasion of privacy.[6] Their Honours intimated that the right of privacy may develop[7] and did not close off the possibility that such a tort might emerge.

Justice Kirby preferred to postpone an answer to the question of whether an actionable wrong of invasion of privacy exists.[8]

It may seem an exercise in grasping at straws to say that this decision should be welcomed for not completely dismissing the possibility of a more general right to privacy. However, when considered against the background of earlier decisions — particularly Victoria Park Racing and Recreation Grounds Co Ltd v Taylor[9] —which seemed to completely foreclose that possibility, the case is properly viewed as a favourable development for common law privacy in this country. In short, after this decision, some obstacles to recognising the tort have been lifted, and no further obstacles have been imposed. It is one step towards recognition of the action.

With that said, there is one aspect of the decision which may narrow any potential right to privacy. All the majority judges appear to agree that any general privacy right will not be available to corporations.[10] The foundation of the action is the protection of human dignity[11] and it would therefore be highly unlikely that corporations could, in most cases, take the advantage of a more general right.[12] The fact that Lenah was a corporate body effectively provided the Court with the reason to defer its decision about privacy to another day.

But the real interest of the decision lies in Justice Callinan’s dissenting judgment. In a particularly reflective judgment, Callinan J clearly states that he is inclined to recognise a more general right to privacy. His Honour said:

It seems to me that, having regard to current conditions in this country, and developments of the law in other common law jurisdictions, the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country, or whether the legislatures should be left to determine whether provisions for a remedy for it should be made.[13]

In doing so, Callinan J referred to academic commentary[14] pointing out the irony in the courts being much more willing to vary, abolish and extend a wide range of legal principles (including native title, privity of contract and constitutional interpretation) while adopting an unnecessarily restrictive approach to privacy law. His Honour, with respect, has a point. Why has privacy been left stagnant for so long when its advance would be publicly acceptable, is more necessary in modern times, the right already exists or is developing successfully in many comparable and analogous legal systems,[15] and it would require, in the right case, just the smallest incremental step for the courts to take?

Without a doubt, Justice Callinan goes further than the other justices. It is a welcome and unequivocal approach that other judges in many other courts have not been willing to articulate.

Leaving aside cuddly little possums being killed for export, it is disappointing that a person (or corporation) whose property is breached by a trespasser and whose operations are prejudiced by illicit filming and publication of its lawful activities is unable to protect themself by asserting a simple right to privacy. Lenah was a private body operating a lawful commercial enterprise.

Any person who would argue in favour of a general right to privacy will welcome this decision. It may not have gone as far as most would like, but at least after it, it will be easier, and not more difficult, for natural persons to establish such a right. Now it will just take some good cases, some skillful advocates and some careful articulation of the ingredients of the elements of the action, to provide the best chance for development of an action against unjustified invasion of privacy. v

Jonathan Horton, Minter Ellison, Brisbane.

---

[1] ‘The developing right to privacy — at common law’ (2001) 7(10) Privacy Law and Policy Reporter 206.

[2] [2001] HCA 63 at [40], [41].

[3] Above note 2 at [46].

[4] Above note 2 at [106]-[111].

[5] Above note 2 at [187].

[6] Above note 2 at [110].

[7] See for example [2001] HCA 63 at [129], [132].

[8] Above note 2 at [189], [191].

[9] [1937] HCA 45; (1937) 58 CLR 479.

[10] Above note 2 at [43] per Gleeson CJ (who is not as categorical in rejecting this notion as the other majority justices), [132] per Gummow and Hayne JJ (Gaudron J apparently agreeing); [190] per Kirby J.

[11] Above note 2 at [43] per Gleeson CJ.

[12] Justice Callinan disagreed. His Honour observed that corporations might be able to enjoy the same right as a natural person: above note 2.

[13] Above note 2 at [335].

[14] Above note 2 at [336].

[15] United Kingdom: see Douglas v Hello! Ltd [2001] WLR 992; United States: Restatement of the Law Second, Torts (1977), s 652A; New Zealand: Tobin ‘Invasion of Privacy’ (2000) New Zealand Law Journal 216; Canada: see Canadian Tort Law 6th ed (1997) at 56.