Legal Insights

Remedies for the serious invasion of privacy in NSW

By Erin Hourigan

• 22 March 2016 • 3 min read
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Recent developments in privacy in New South Wales

Invasion of privacy has recently been back in the headlines.

Gina Rinehart is reportedly suing Channel Nine and the production company, Cordell Jigsaw Zapruder, over the broadcast of the 2015 mini-series House of Hancock. Mrs Rinehart's claim is based on a number of causes of action including injurious falsehood and misleading and deceptive conduct.

On 11 March 2016, Justice McCallum of the Supreme Court of NSW was reportedly told Mrs Rinehart was pursuing this suit as a test case for the establishment of a privacy tort in Australia. The defendants in the House of Hancock proceedings are reportedly considering a strike-out application.

This announcement from Mrs Rinehart's legal team came one week after the Standing Committee on Law and Justice handed down its final report from its inquiry into the remedies for the serious invasion of privacy in NSW. The Standing Committee's report is the latest in a long line of reports over the last eight years which have each recommended that a statutory cause of action for invasion of privacy be enacted federally or at a state level.

The inquiry was launched as a result of increasing community concern that the use of technology, including social media and surveillance technology, was intruding upon people's day to day lives and privacy. The submissions received by the inquiry highlighted that there were three main areas of concern regarding breach of privacy:

  • 'revenge pornography' and other types of technology-facilitated abuse
  • other forms of unauthorised surveillance or information capture (for example, through the use of hidden cameras or drones)
  • 'big data' breaches (for example, companies accidentally publishing a customer's private information on the internet).

The Standing Committee found the existing remedies for serious invasion of privacy in NSW were inadequate and recommended that, among other things:

  • The NSW Government should introduce a statutory cause of action for serious invasions of privacy. The Standing Committee agreed that a national approach would be preferable. However, the Standing Committee considered that the lack of development of the common law, and political will federally, warranted NSW 'taking the lead on the issue'.
  • The statutory cause of action should be based on the model proposed by the Australian Law Reform Commission, detailed in its 2014 report, Serious Invasions of Privacy in the Digital Era. Click here to read our previous article on this ALRC report and the proposed elements of the statutory cause of action.
  • The NSW Government should consider amending the ALRC model to incorporate a fault element of:
    • intent, recklessness and negligence for governments and corporations
    • intent and recklessness for natural persons.

We will keep you posted about whether the Standing Committee's recommendations receive any more traction than the previous recommendations made by numerous Law Reform Commissions in Australia over the last eight years.

By Erin Hourigan

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