Appendix A: Civil Liability Amendment (Privacy) Bill

Updates and background for this project (Digest)

New South Wales

Civil Liability Amendment (Privacy) Bill 2009

Explanatory note

Overview of Bill

There is currently some uncertainty as to whether the general law recognises a cause of action for the invasion or violation of an individual’s privacy.

The objects of this Bill are:

(a) to amend the Civil Liability Act 2002 to create a statutory cause of action for the invasion of the privacy of an individual, and

(b) to amend the Limitation Act 1969 to provide for a limitation period of 1 year for such causes of action running from the date on which the cause of action first accrues (subject to an extension, in limited circumstances, for a period of up to 3 years).

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day to be appointed by proclamation.

Schedule 1 Amendment of Civil Liability Act 2002 No 22

Statutory cause of action

Schedule 1 [3] inserts a Part 12 (Invasion of privacy) in the Civil Liability Act 2002. The proposed Part contains the following provisions:

Proposed section 72 sets out the objects of the proposed Part. The principal object of the proposed Part will be to create a statutory cause of action for the invasion of an individual’s privacy.

Proposed section 73 defines certain terms and expressions that are used in the proposed Part.

Proposed section 74 provides that an individual has a cause of action against another person under the proposed Part if the other person invades the individual’s privacy.

The test for determining whether an individual’s privacy has been invaded for the purposes of such an action is if the conduct of another person invaded the privacy that the individual was reasonably entitled to expect in all of the circumstances having regard to any relevant public interest (including the interest of the public in being informed about matters of public concern).

The proposed section also makes it clear that there is no actionable invasion of privacy in respect of conduct if the individual, or another person having lawful authority to do so for the individual, has expressly or impliedly consented to the conduct.

Proposed section 75 provides for certain defences to an action brought under the proposed Part.

Proposed section 76 provides for the remedies that a court may award for a successful action brought under the proposed Part. Remedies include orders for the payment of compensation and various other kinds of orders (including an order prohibiting conduct that would invade an individual’s privacy).

Proposed section 77 limits the amount of compensation that a court may order for non-economic loss in an action brought under the proposed Part. The initial maximum amount that may be awarded as compensation for non-economic loss will be $150,000. The proposed section also provides for the indexation, by order of the Minister published in the Gazette, of the maximum amount that may be awarded as damages for non-economic loss.

Proposed section 78 provides that a court cannot make a monetary order under proposed section 76 that is in the nature of exemplary or punitive damages.

Proposed section 79 provides that an action brought by or on behalf of an individual under the proposed Part does not survive the individual’s death.

Proposed section 80 provides for:

(a) the abolition of any specific tort for the invasion or violation of a person’s privacy to the extent that it exists at general law, and

(b) the proposed Part to be read (except to the extent that it abolishes any specific tort at general law for the invasion or violation of a person’s privacy) as providing additional remedies for invasions of privacy and not derogating from any other rights of action or remedies available apart from the proposed Part.

Schedule 1 [1] amends section 3B of the Civil Liability Act 2002 to ensure that any invasion of privacy committed with an intent to cause injury is not excluded from the ambit of the proposed Part.

Schedule 1 [2] amends section 3B of the Civil Liability Act 2002 to ensure that civil liability arising under the proposed Part cannot be excluded by a regulation made for the purposes of section 3B (3) of that Act.

Savings and transitional provisions

Schedule 1 [4] amends clause 1 of Schedule 1 to the Civil Liability Act 2002 to enable the Governor to make regulations of a savings or transitional nature consequent on the enactment of the proposed Act.

Schedule 1 [5] inserts a Part in Schedule 1 to the Civil Liability Act 2002 that contains a transitional provision confirming that proposed Part 12 of the Act does not extend to any civil liability that arose before the commencement of the proposed Part.

Schedule 2 Amendment of Limitation Act 1969 No 31

Schedule 2 amends the Limitation Act 1969 to provide that, generally, an action for the invasion of an individual’s privacy under the proposed Part 12 of the Civil Liability Act 2002 must be commenced within 1 year following the first date on which the action accrues. However, a court must extend this limitation period to a period of up to 3 years if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the action within the 1 year period.

New South Wales

Civil Liability Amendment (Privacy) Bill 2009

Contents

1 Name of Act

2 Commencement

Schedule 1 Amendment of Civil Liability Act 2002 No 22

Schedule 2 Amendment of Limitation Act 1969 No 31

Civil Liability Amendment (Privacy) Bill 2009

No , 2009

A Bill for

An Act to amend the Civil Liability Act 2002 to create a statutory cause of action for the invasion of the privacy of an individual; to amend the Limitation Act 1969 in relation to the limitation period for actions for invasions of privacy; and for other purposes.

The Legislature of New South Wales enacts:

1 Name of Act

This Act is the Civil Liability Amendment (Privacy) Act 2009.

2 Commencement

This Act commences on a day to be appointed by proclamation.

Schedule 1 Amendment of Civil Liability Act 2002 No 22

[1] Section 3B Civil liability excluded from Act

Insert at the end of section 3B (1) (a) (iii):

, and

(iv) Part 12 (Invasion of privacy),

[2] Section 3B (3)

Insert “(other than Part 12)” after “this Act”.

[3] Part 12

Insert after Part 11:

Part 12 Invasion of privacy

72 Objects of Part

The objects of this Part are:

(a) to recognise that it is important to protect the privacy of individuals, but that the interest of individuals in their own privacy must be balanced against other important interests (including the interest of the public in being informed about matters of public concern), and

(b) to create a statutory cause of action for the invasion of an individual’s privacy, and

(c) to provide for a number of different remedies to enable a court to redress any such invasion of privacy.

In this Part:

Australian court or tribunal means:

(a) any court established by or under a NSW law, Commonwealth law or the law of another Australian jurisdiction (including a court conducting committal proceedings for an indictable offence or a person conducting a coronial inquest), and

(b) any other tribunal established by or under a NSW law, Commonwealth law or the law of another Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry).

Commonwealth law means any law of the Commonwealth, and includes the Commonwealth Constitution.

conduct includes the publication of matter.

general law means the common law and equity (as modified from time to time by legislation).

NSW law means any written or unwritten law in force in New South Wales (including a law of the British or Imperial Parliament) other than a Commonwealth law.

74 Invasion of privacy actionable

(1) An individual has a cause of action against a person under this Part if that person’s conduct invades the individual’s privacy.

(2) An individual’s privacy is invaded for the purposes of an action under this Part if the conduct of another person invaded the privacy that the individual was reasonably entitled to expect in all of the circumstances having regard to any relevant public interest (including the interest of the public in being informed about matters of public concern).

(3) Without limiting subsection (2), a court determining whether an individual’s privacy has been invaded by the conduct (the conduct concerned) of another person (the alleged wrongdoer) for the purposes of an action under this Part:

(a) must take into account the following matters:

(i) the nature of the subject matter that it is alleged should be private,

(ii) the nature of the conduct concerned (including the extent to which a reasonable person of ordinary sensibilities would consider the conduct to be offensive),

(iii) the relationship between the individual and the alleged wrongdoer,

(iv) the extent to which the individual has a public profile,

(v) the extent to which the individual is or was in a position of vulnerability,

(vi) the conduct of the individual and of the alleged wrongdoer both before and after the conduct concerned (including any apology or offer to make amends made by the alleged wrongdoer),

(vii) the effect of the conduct concerned on the health, welfare and emotional well-being of the individual,

(viii) whether the conduct concerned contravened a provision of a statute of an Australian jurisdiction, and


(b) may take into account any other matter that the court considers relevant in the circumstances.

75 Defences

(1) It is a defence to an action under this Part for the invasion of a plaintiff’s privacy if the defendant proves any of the following:

(a) that the conduct of the defendant was required or authorised:

(i) by or under a NSW law or Commonwealth law, or

(ii) by an Australian court or tribunal or a process of such a court or tribunal,


(b) that the conduct of the defendant was done for the purpose of lawfully defending or protecting a person or property (including the prosecution or defence of civil or criminal proceedings),

(c) that the conduct of the defendant was the publication of matter that, if it is assumed that the publication is defamatory, would attract any of the following defences to an action for defamation:


(i) the defence of absolute privilege (whether at general law or under section 27 of the Defamation Act 2005),

(ii) any of the defences of fair report of proceedings of public concern under section 29 of the Defamation Act 2005,


(d) that the conduct of the defendant was the publication of matter in circumstances where:

(i) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and

(ii) the defendant neither knew, nor ought reasonably to have known, that the publication of the matter constituted an invasion of privacy, and

(iii) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant,


(e) that the conduct of the defendant was the publication of matter to a person (the recipient) in circumstances where:

(i) the defendant has an interest or duty (whether legal, social or moral) to provide information on a subject to the recipient, and

(ii) the recipient has a corresponding interest or duty in having information on that subject, and

(iii) the matter is published to the recipient in the course of giving to the recipient information on that subject.

(3) In this section:

subordinate distributor has the same meaning as in section 32 of the Defamation Act 2005.

(1) In an action under this Part for the invasion of a plaintiff’s privacy, the court may (subject to any jurisdictional limits of the court) grant any one or more of the following remedies, whether on an interim or final basis, as the court considers appropriate:

(a) an order for the payment of compensation,

(b) an order prohibiting the defendant from engaging in conduct (whether actual, apprehended or threatened) that the court considers would invade the privacy of the plaintiff,

(c) an order declaring that the defendant’s conduct has invaded the privacy of the plaintiff,

(d) an order that the defendant deliver to the plaintiff any articles, documents or other material, and all copies of them, concerning the plaintiff or belonging to the plaintiff that:


(i) are in the possession of the defendant or that the defendant is able to retrieve, and

(ii) were obtained or made as a result of the invasion of the plaintiff’s privacy or were published during the course of the conduct giving rise to the invasion of privacy,


(e) such other relief as the court considers necessary in the circumstances.

77 Compensation for non-economic loss limited

(1) The maximum amount of compensation for non-economic loss that a court may order in an action for invasion of privacy under this Part is $150,000 or any other amount adjusted in accordance with this section from time to time that is applicable at the time compensation is awarded.

(2) The Minister is, on or before 1 July 2010 and on or before 1 July in each succeeding year, to declare, by order published in the Gazette, the amount that is to apply, as from the date specified in the order, for the purposes of subsection (1).

(3) The amount declared is to be the amount applicable under subsection (1) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in Australia over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available.

(4) An amount declared for the time being under this section applies to the exclusion of the amount of $150,000 or an amount previously adjusted under this section.

(5) If the Australian Statistician fails or ceases to estimate the amount referred to in subsection (3), the amount declared is to be determined in accordance with the regulations.

(6) In adjusting an amount to be declared for the purposes of subsection (1), the amount determined in accordance with subsection (3) is to be rounded to the nearest $500 (with the amounts of $250 and $750 being rounded up).

(7) A declaration made or published in the Gazette after 1 July in a year and specifying a date that is before the date it is made or published as the date from which the amount declared by the order is to apply has effect as from that specified date.

78 Monetary order in the nature of exemplary or punitive damages cannot be made

A court cannot make a monetary order under section 76 that is in the nature of exemplary or punitive damages.

79 Action does not survive death

(1) A cause of action for the invasion of an individual’s privacy arising under this Part does not survive the individual’s death.

(2) Subsection (1) has effect despite section 2 of the Law Reform (Miscellaneous Provisions) Act 1944.

80 Relationship of cause of action to other laws

(1) To the extent that the general law recognises a specific tort for the invasion or violation of a person’s privacy, that tort is abolished.

(2) Subject to subsection (1), the right of action for invasion of privacy under this Part and the remedies under this Part are in addition to, and not in derogation of, any other right of action or other remedy available otherwise than under this Part.

(3) Without limiting subsection (2), subsection (1) does not operate to abolish or otherwise limit any of the following kinds of causes of action at general law to the extent that they provide for a remedy for the invasion or violation of an individual’s privacy:

(a) an action for defamation,

(b) an action for trespass,

(c) an action for a breach of confidence,

(d) an action for negligence,

(e) an action for nuisance,

(f) an action for injurious falsehood,

(g) an action for passing off,

(h) an action for intentional infliction of harm,

(i) an action for breach of a statutory duty.

[4] Schedule 1 Savings and transitional provisions

Insert at the end of clause 1 (1):

Civil Liability Amendment (Privacy) Act 2009

[5] Schedule 1

Insert at the end of the Schedule (with appropriate Part and clause numbers):

Part __ Provisions consequent on enactment of Civil Liability Amendment (Privacy) Act 2009

Application of Part 12

Part 12 (as inserted by the Civil Liability Amendment (Privacy) Act 2009) does not extend to any civil liability arising before the commencement of that Part.

Schedule 2 Amendment of Limitation Act 1969 No 31

[1] Section 14C

Insert after section 14B:

14C Invasion of privacy

An action on a cause of action for an invasion of privacy under Part 12 of the Civil Liability Act 2002 is not maintainable if brought after the end of a limitation period of 1 year running from the date on which the cause of action first accrues.

[2] Part 3, Division 2B

Insert after Division 2A:

Division 2B Invasion of privacy

56E Extension of limitation period by court

(1) A person claiming to have a cause of action for invasion of privacy under Part 12 of the Civil Liability Act 2002 may apply to the court for an order extending the limitation period for the cause of action.

(2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date on which the cause of action first accrued, extend the limitation period mentioned in section 14C to a period of up to 3 years running from that date.

(3) A court may not order the extension of the limitation period for a cause of action for invasion of privacy under Part 12 of the Civil Liability Act 2002 other than in the circumstances specified in subsection (2).

56F Effect of order

If a court orders the extension of a limitation period for a cause of action under section 56E, the limitation period is accordingly extended for the purposes of:

(a) an action brought by the applicant in that court on the cause of action that the applicant claims to have, and

(b) section 26 (1) (b) in relation to any associated contribution action brought by the person against whom the cause of action lies.

56G Costs

Without affecting any discretion that a court has in relation to costs, a court hearing an action brought as a result of an order under section 56E may reduce the costs otherwise payable to a successful plaintiff, on account of the expense to which the defendant has been put because the action was commenced outside the original limitation period.

56H Prior expiry of limitation period

An order for the extension of a limitation period, and an application for such an order, may be made under this Division even though the limitation period has already expired.