Outside the statutory regime, Australians have limited recourse to protect their privacy rights at common law. This is because, unlike other common law countries, our Courts have not developed a tort of invasion of privacy. For example, unlike the United States, Australia does not have any express common law cause of action with respect to:
- intrusion upon a person’s seclusion or solitude, or into his/her private affairs;
- public disclosure of embarrassing private facts about a person;
- publicity which places a person in a false light in the public eye; or
- appropriation, for the perpetrator’s advantage, of a person’s name or likeness.
Similarly, Australia does not recognise the extended concept of breach of confidence as accepted in the United Kingdom in relation to privacy rights.
However, the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 overturned the long-standing position in Australia that the common law provided no protection for personal privacy. This understanding was based on comments made obiter in the High Court case of Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479. Lenah found the position adopted in Victoria Park to be incorrect and that there was no impediment preventing Australian Courts from creating a cause of action for invasions of privacy. Indeed, Callinan J asserted:
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.
Since Lenah, only two lower Courts have recognised a tort of invasion of privacy: Gross v Purvis [2003] QDC 151 in the District Court of Queensland and Doe v Australian Broadcasting Corporation [2007] VCC 281 in the Country Court of Victoria. It remains unclear the likely direction of the future development of the Australian common law with respect to privacy rights.
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