Is the law finally catching up with the Peeping Tom?
Published on October 4, 2024 by Matthew Forshaw and Chelsea O'Grady
Privacy is widely acknowledged as a fundamental human right, however breaches of our most intimate moments have become increasingly easy and depressingly common over the years with significant advances in technology.
Hidden cameras, smart phones, and recording devices have become widely available, relatively inexpensive, and easy to use. These tools have made it more accessible than ever for individuals to capture and share private content, thereby leading to a surge in privacy violations in recent years.
This growing phenomenon, commonly referred to as ‘image-based sexual abuse’, has been addressed by the law to a certain extent. In Australia, most states and territories have made it a criminal offence to watch, film, or install a device to facilitate the observation or filming of a person engaging in a private act for sexual gratification without consent. It is also a criminal offence in most of these jurisdictions to record or distribute intimate images without consent. In New South Wales specifically, these various offences are set out under Divisions 15B and 15C of the Crimes Act 1900.
However, the law has seemingly failed to provide any real remedy to the victims of these crimes. This is in spite of decades’ long recognition by the Courts and society broadly that victims of such offences should be able to seek compensation for damages caused by the offender’s conduct. The victims of these crimes have had their trust violated and may suffer significant psychological injuries as result. To date, it has been unclear whether they have any real entitlement to seek compensation for their suffering.
With that being said, it appears that the law may now finally be catching up and providing victims with protections and rights. As of 12 September 2024, the Federal Government has proposed various privacy law reforms by way of the Privacy and Other Legislation Amendment Bill 2024, including a statutory tort for serious invasions of privacy.
The unfulfilled promise of common law privacy protections
The possibility of developing a common law tort for invasions of privacy was first left open by the High Court in the 2001 case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63. Although it was ultimately determined that the tort was not applicable in this case, it was stated by Callinan J at [334] that ‘…the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country’.
Following this endorsement, there have only gone on to be two decisions in Australia that have awarded damages for a tort of invasion of privacy, those being Grosse v Purvis [2003] QDC 151 and Doe v Australian Broadcasting Corporation & Ors [2007] VCC 281. However, as these decisions had only been made by lower courts, they do not provide any binding authority.
Unfortunately, without an adequate judgement from a state Supreme Court or the High Court, the tort has failed to be adequately developed or consistently applied in Australia. This lack of higher court guidance has therefore left privacy protections fragmented and uncertain, meaning any potential plaintiffs looking to seek remedy under the tort are at risk of facing significant legal costs.
The closest the High Court has gotten in recent years was in the case of Smethurst v Commissioner of Police [2020] HCA 14. Although the plaintiff in this case did not seek to claim the existence of the tort, the judgement of Kiefel CJ, Bell and Keane JJ went on to suggest that the development of this tort is something which the High Court would be interested in returning to in the future. At [90], they stated: ‘Without determining whether the common law of tort may recognise a tort of privacy, it cannot be said that there is no prospect of such a remedy, at least for the first plaintiff. The plaintiffs do not seek to have the question determined.’
This case appears to be the most recent and authoritative reflection of Australia’s position on the development of the tort. However, as privacy concerns only continue to escalate, the failure of the courts to establish a robust common law cause of action has intensified calls for statutory reform.
Filling the gaps: The proposed statutory tort for serious invasions of privacy
As set out at Schedule 2 of the Privacy and Other Legislation Amendment Bill 2024, it appears that a claim under the proposed statutory tort for serious invasions of privacy would require the following elements to be established:
- An invasion of privacy has occurred by way of intrusion upon the plaintiff’s seclusion (i.e., physical intrusion on their private space) or misuse of information relating to the plaintiff;
- A person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances;
- The invasion of privacy was intentional or reckless; and
- The invasion of privacy was serious.
At this stage, there’s no specification under Bill, nor in the Explanatory Memorandum, as to whether the tort will operate retrospectively, but it seems there will be relatively significant limitation periods. It might be that leave could potentially be sought for any invasion of privacy which occurred prior to the commencement of the Act.
However, as the above is only from the first text of the Bill, the scope of the tort is potentially subject to change. The Bill is now currently in the hands of the Legal and Constitutional Affairs Legislation Committee for inquiry, with their report due to be complete by 14 November 2024. As the Bill continues to progress through Parliament, it is likely that we will soon be able to obtain clearer picture as to how the proposed statutory tort for serious invasions of privacy will operate in practice. Nonetheless, it is very promising to see that this statutory remedy may finally be on its way. It is hoped that this may provide clarity for victims of such crimes and impose a more significant financial deterrent to the offenders.
Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.
