The Law Handbook 2024

Chapter 12.2: Privacy and your rights 1095 after years of being stalked by the defendant. The defendant had also made public and private statements to the effect that the plaintiff engaged in immoral sexual acts. The Queensland District Court noted that in the Lenah Game Meats case, the High Court had removed the barrier to people attempting to rely on a tort of privacy. The court awarded aggravated and exemplary damages to the plaintiff for breach of her privacy. Giller v Procopets In the case of Giller v Procopets [2004] VSC 113, the Victorian Supreme Court stated that the law in Australia had not developed to the point where it recognised an action for breach of privacy. The facts of this case were that the defendant (Procopets), while in a relationship with the plaintiff (Giller), had secretly and then with the plaintiff’s consent, videotaped them having sex. After the breakdown of the relationship, the defendant had disclosed the recordings to family and friends. Giller brought an action for breach of privacy and breach of confidence, among other actions. The trial judge rejected the breach of privacy; he found there had been a breach of confidence, but since the distress she suffered fell short of mental illness, he found there were no grounds to award compensation. The Victorian Court of Appeal unanimously confirmed the finding of breach of confidence. As a result, the court found it unnecessary to decide conclusively whether a tort of invasion of privacy should be recognised under Australian law. Importantly, the court rejected the decision that compensation could not be awarded and ordered damages against Procopets ( Giller v Procopets [2008] VSCA 236). This case was an important step in breach of confidence being used as a remedy for breach of privacy, although it is limited in scope by the need for a confidential relationship to have existed between the plaintiff and the defendant. Doe v Australian Broadcasting Corporation In Doe v Australian Broadcasting Corporation [2007] VCC 281, the ABC published information on two separate occasions that identified the plaintiff as a victim of rape by her husband, contrary to section 41(1A) of the Judicial Proceedings Reports Act 1958 (Vic). In addition to finding a breach of statutory duty and breach of confidence, Justice Hempel also found the defendant was liable in tort for invasion of privacy, relying on the High Court’s comments in the Lenah Game Meats case. The decision was appealed but the appeal was withdrawn. Recent recommendations for law reform Considering the slow and piecemeal development of a right of privacy at common law, various law reform commissions have recommended that there be a statutory cause of action for breach of privacy. In 2009, the New South Wales Law Reform Commission released a report, Invasion of Privacy (report 120), available at www.lawreform.justice.nsw. gov.au. It recommended that the Civil Liability Act 2002 (NSW) be amended to provide a statutory cause of action for invasion of privacy. In 2008, the ALRC recommended a statutory cause of action be developed for serious invasions of privacy (ALRC report 108). The Victorian Law Reform Commission made a similar recommendation in its 2010 report Surveillance in Public Places: Final Report , available at www. lawreform.vic.gov.au. On 3 September 2014, the ALRC’s final report, Serious Invasions of Privacy in the Digital Era (ALRC report 123), was tabled. This report responded to the Attorney-General’s referral to the ALRC following the Australian Government’s release of its issues paper, A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy . The ALRC recommended that if there were to be a statutory cause of action for serious invasion of privacy it should be a Commonwealth Act and be an action in tort. It should be available only in circumstances where a person had a reasonable expectation of privacy and would cover: intrusion upon seclusion either by physically intruding into a person’s private spaces by watching, listening, recording private activities or affairs or by the misuse of private information such as by collecting or disclosing private information about a person – including untrue information, but only if it would be private if true. In March 2016, the NSW Parliament’s Law and Justice Committee recommended that NSW should create a new legal action for serious invasions of