Privacy Law and the Equitable Doctrine of Confidence in Australia

Introduction: Privacy Law in Australia

Currently, there are no statutory laws that grant the "right to privacy" to individuals or corporations in Australia. The common law, from the 1937 case of Victoria Park Racing and Recreation Ground Co Limited v Taylor through to ABC v Lenah Game Meats (2001) and Giller v Procopets (2004), demonstrates that recognition of a right to privacy has remained elusive in the Australian courts.

Despite the existence of international instruments that confer an inherent right to privacy on individuals, Australia still does not recognize the right to privacy and confidence as a human right. This raises a number of significant issues — most notably, a gap in the law that the equitable doctrine of confidence has proven insufficient to fill. This paper traces that gap through key case law and argues that an equitable doctrine of privacy, created either through statute or common law development, is necessary to address it.

International and Domestic Instruments on Privacy

International instruments such as Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights (ICCPR) both afford individuals an inherent right to privacy. It should be noted that while Australia is not a formal party to the ICCPR treaty, the country has consistently maintained in practice that its laws and judicial decisions will carry the influence of the ICCPR.

At the domestic level, the Charter of Human Rights and Responsibilities Act 2006 (Vic) grants individuals the right not to have their privacy, family, home, correspondence, or reputation unlawfully or arbitrarily interfered with. However, the Charter does not bind Parliament — the law-making body — to enact the ideas it contains. It can only recommend, and cannot compel Parliament to legislate that which it does not agree with. As a result, Australia still does not formally recognize the right to privacy and confidence as a human right, and these instruments remain of limited practical effect.

Breen v Williams: Medical Records and Confidentiality

The absence of a recognized law of invasion of privacy raises a number of issues, first identified in the case of Breen v Williams, which posed to the court the question of confidence in the context of medical records. It is a norm of common law that the person who creates a record owns it. Accordingly, medical practitioners own the medical records they create, which are treated as their intellectual property. A patient has no right to access those records, though upon request the patient may be furnished with information pertaining to their medical history, the findings of any physical examination, investigation results, the doctor's diagnosis, and a proposed treatment plan.

In this case, Ms. Breen had silicone implants inserted in each breast through a mammaplasty operation in 1977. She subsequently developed breast capsules — a condition in which scar-like tissue forms a ring around the breast. A doctor advised her to undergo a capsulotomy to remove the scar tissue in 1978, and in 1984 another doctor performed a partial mastectomy because silicone gel was leaking from one of the implants. In 1993, Ms. Breen sought copies of her medical records from her doctor in order to mount a case against the manufacturers of the silicone implants. The doctor acknowledged the records were his property but indicated he would release them if she signed a document stating she would not sue him in relation to the treatment she had received. She refused and instituted proceedings.

Her suit failed. When the matter reached the High Court, she advanced four grounds for her claim to access her records: (1) that a patient has a proprietary interest in the information recorded in medical records; (2) that contractual obligations were implied between herself and the doctor; (3) that a fiduciary relationship exists between a doctor and a patient; and (4) that she had a right to be informed of the contents of her own medical records.

On the proprietary interest claim, the judges held that documents created by a professional to assist that professional in discharging their duties remain the property of the professional, not the lay client. It is the doctor's proprietary rights that entitle him to deny the patient access. On the fiduciary relationship claim, the court held that while some aspects of the doctor–patient relationship could give rise to a fiduciary duty, the relationship as a whole was not to be treated as fiduciary. On the right to know, the court confirmed that patients have, as a general rule, no right to access their medical information, with exceptions available under statutory instruments such as the Freedom of Information Act 1992 and the Privacy Act 1988 (which came into force in 2000).

The outcome of this case upheld the defendant's right of confidentiality. Australia does recognize a right to confidentiality but does not recognize an equitable right to privacy. Therefore, where the circumstances of a case cannot support a claim in confidentiality, the aggrieved party is left without a cause of action. The case of Hosking v Runting further illustrates the difficulty created by courts that refuse to recognize an equitable doctrine of privacy, holding that confidentiality and privacy are distinct concepts.

ABC v Lenah Game Meats: Reluctance to Recognize Privacy

The reluctance of Australian courts to recognize a right to privacy is perhaps most apparent in ABC v Lenah Game Meats (2001), where the court ostensibly acknowledged the right to privacy but ultimately refused to declare openly that the applicant possessed such a right. The applicant owned an abattoir that caught and slaughtered possums for meat. The defendant had obtained video footage and photographs of the operation from an individual who had secretly installed cameras inside the abattoir and later retrieved them with the recordings. The footage was passed to an animal rights group, whose representative transferred it to the Australian Broadcasting Corporation for broadcast. The applicant sought an interlocutory injunction prohibiting the broadcast, arguing it would damage sales. The application was dismissed at first instance, reversed on appeal by the Full Court of Tasmania, and the High Court ultimately upheld the appeal.

The case therefore failed to produce groundbreaking progressive effects on privacy law in Australia. However, in obiter dictum, it signalled the need for privacy law. It was observed in obiter that the time was ripe for a tort of invasion of privacy to be recognized by the common law. Gleeson CJ stated that the integration of privacy-related actions within the doctrine of breach of confidence would make it unnecessary to create a new privacy tort, since the law of breach of confidence would be sufficient. The court was required to answer two fundamental questions: first, whether it was possible to grant an interlocutory injunction where there was no specific cause of action; and second, whether Lenah Game Meats could rely on a right of privacy, if such a right existed.

On the first question, the court held that an interlocutory injunction can only be granted in respect of a breach of a legal or equitable right, not on the basis of unconscionable conduct alone. Kirby J, however, dissented from the majority, arguing that an injunction could be granted even where no cause of action existed, drawing on the New South Wales Supreme Court decision in Lincoln Hunt Australia Pty Ltd v Willesee (1986), which held that a court has the power to issue an interlocutory injunction where video or photographs were obtained during a trespass, even in the absence of any confidentiality agreement. Callinan J also dissented, holding that an injunction could issue.

On the second question — whether Lenah Game Meats could rely on an outright right of privacy — the judges again stated in obiter dictum that the precedent of Victoria Park Racing and Recreation Grounds Co Ltd v Taylor did not prohibit the court from recognising a tort of privacy, but held that no such right currently existed. The commentary of the judges in reaching this decision nonetheless demonstrates both the need for, and a growing readiness among, the Australian courts to give rise to a tort of invasion of privacy and an equitable remedy for it. The slow pace of common law development, however, made the judges reluctant to take that step.

References

United Nations (1948). Universal Declaration of Human Rights.

Bartlett, P. (2010). Privacy down under. Journal of International Media and Entertainment Law, Vol. 15, No. 1.

Australian Law Reform Commission (2008). Australian Privacy Laws and Practice, Vol. 3, Report 108.

Victoria Park Racing and Recreation Ground Co Ltd v Taylor (1937) 58 CLR 479.

ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.

Giller v Procopets [2004] VSC 113.

Hosking v Runting (2005) 1 NSLR 1.

Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457.

Grosse v Purvis (2003) QDC 151.

Doe v Australian Broadcasting Corporation [2007] VCC 281.