Posted on March 15, 2020 by Megan Hawley and 1

Proposed Law Regarding Invasions of Privacy

On 27 February 2020, the Civil Remedies for Serious Invasions of Privacy Bill 2020 (Bill) was introduced to the New South Wales Legislative Assembly.

The Bill proposes to create a statutory cause of action for the serious invasion of a person’s privacy.

The Bill is in part a response to concerns about the use of technology including social media and surveillance technology.  If enacted, the Bill will provide a means for people to litigate breaches of privacy, including arising from the installation of security cameras on private property.

However, the Bill will also enable people to bring claims against Councils and other government agencies for the intentional, reckless or negligent misuse of private information.

Current issues in privacy regulation

At present, there is no cause of action for a breach of privacy under the common law.

The Privacy and Personal Information Protection Act 1998 (PPIP Act) regulates the use and disclosure of personal information regarding individuals by public sector agencies, by reference to 12 privacy principles. However, the PPIP Act does not create a general right to privacy and does not regulate the use of personal information by individuals or entities other than public sector agencies. As such, the PPIP Act provides no scope for actions between individuals regarding privacy issues.

There is limited scope through planning law for councils to effectively regulate the use of security cameras on private property within their local government areas. Installation of such cameras and the capturing of footage from within neighbouring properties is also not unlawful under the Surveillance Devices Act 2007. Information published by the Information and Privacy Commission to date has stated that people with concerns regarding private security camera use should approach the operator of the camera and seek mediation through Community Justice Centres. There is some scope to argue that security cameras can constitute an actionable nuisance.

The Bill seeks to address a number of the gaps and shortfalls in the existing law relating to privacy .

The Bill

The Bill proposes to create a statutory cause of action for a serious invasion of the privacy of an individual if that person’s privacy was invaded by:

• intrusion upon seclusion (such as physically intruding into an individual’s private space or by watching, listening to or recording an individual’s private activities), or
• misuse of private information (such as by collecting or disclosing private information about an individual).

The cause of action will be made out where:

• 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 is serious;
• the defendant is at fault (which for a government entity or corporation means there must be intent, recklessness or negligence); and
• the public interest in privacy outweighs any countervailing public interest.

The Bill does not provide a definition for what constitutes a serious invasion of privacy. However, in determining whether an invasion of privacy is serious, the Court may have regard to:

• the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause to a person of ordinary sensibilities in the position of the plaintiff; and
• whether the defendant was motivated by malice or knew the invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff.

The cause of action will be enforceable in the Supreme Court or the District Court. The Bill also proposes to create an entitlement for a person to bring proceedings to the NSW Civil and Administrative Tribunal (NCAT).

Significantly, the Bill proposes that the NCAT may award an amount of damages up to the jurisdictional limit of the District Court applicable at the time damages are awarded, which is presently $750,000. This is a significant increase on the amount of damages that may be awarded to a person for a breach of the PPIP Act, which is presently capped at $40,000.

Implications 

Primarily, government authorities should be aware of the potential for litigation arising from breaches of privacy and the amount of damages which can be awarded, if the Bill becomes law.

The Bill does not assist local government in regulating the installation of security or surveillance devices, but does provide individuals with a legal remedy which was not previously available if the installation of such devices has a serious impact on the person’s privacy.

How damages will be calculated by the Courts and the NCAT remains unclear, particularly in relation to the NCAT. For example, under the PPIP Act, the NCAT assesses the amount of damages to be awarded on a scale having regard to the $40,000 cap, which is reserved for the ‘most serious‘ breaches of the PPIP Act: see APV v Department of Finance and Services [2016] NSWCATAD 168, at [25]. As such, more serious conduct generally leads to higher awards of damages. Arguably, if damages under the Bill are to be assessed in a similar fashion, the proposed higher cap of $750,000 could lead to Councils and other government agencies being exposed to paying much higher amounts of damages for the same conduct causing the same loss as was previously dealt with under the PPIP Act.

In this way, the Bill has the potential to expose Councils and other government agencies to significantly increased financial risks if they intentionally, recklessly or negligently misuse people’s private information in ways that intrude on their privacy in the future.

The Bill can be viewed here.

The Standing Committee on Law and Justice’s report can be read here.

To discuss this post, please contact Megan Hawley on 02 8235 9703 or Sophia Urlich on 02 8235 9708.