The elephant in the room – is there a tort of privacy in Australian law?

Because data is intangible and not protected by a single legal doctrine the law struggles to fashion appropriate remedies when data has been copied or ‘stolen’ in an unauthorised manner.  The High Court of Australia faced this issue in a hearing on 12 and 13 November 2019 involving a challenge to the validity of a search warrant. Australian Federal Police officers served the warrant on a journalist and required the journalist to enter the passcode to her smartphone, searched the contents of that phone and copied, onto a portable storage device owned by the police, various files that the officers considered were relevant to the alleged criminal offence under investigation.  The journalist claimed that the warrant was invalid, and that the copied data should be destroyed.  This led to the Court wondering whether the journalist was asking the Court to recognise a tort of invasion of privacy in Australian law.

Some facts and the debate between the bench and the journalist’s counsel

The journalist in question was Annika Smethurst, an employee of Nationwide News Limited.  The search warrant was served on Ms Smethurst in June 2019 at her Canberra home.  The police were investigating an alleged leak of information relevant to national security.  The case has attracted plenty of media coverage.

This discussion does not consider the grounds on which the warrant was argued to be invalid.  Rather, it focusses on the basis on which the court could grant relief if the warrant was invalid.

The journalist’s argument was that the invalidity of the warrant meant that the search of her house and personal property was a trespass (a form of tort) – so much is uncontroversial.  The next step was to say that the court has power to grant an injunction to reverse the consequences of the trespass.  At this point, the bench started to ask some difficult questions of the journalist’s counsel, Stephen Lloyd SC:

KIEFEL CJ: As you say, though, if they had simply taken the information you may have had delivery up for [destruction] under notions like confidential information in equity. But that is not this case.

MR LLOYD: No, no. But we would say that if they had just taken – if they had seized something we could have asked for it to be returned and an injunction to return it would have undone the tort ‑ ‑ ‑

EDELMAN J: But that is easy because if they had seized something you would still have a greater right to possession than the AFP who have taken it.

NETTLE J: It could be an action in detinue if they have taken documents.

MR LLOYD: Certainly. So what we say here, to undo the [un]lawfulness that was done during the trespass, or in the course of the trespass, it is a matter of deleting, if the ‑ ‑ ‑

EDELMAN J: So your point is that the copying was an unlawfulness – the act of copying was unlawful.

MR LLOYD: It was part of the unlawfulness during the trespass. It was done in effect by force of the warrant. My learned junior is pointing out to me there are two matters. One is the trespass to the property, but the other is the trespass to or conversion of the goods, and using the phone in order to take the copy of it. All of that, we would say, was tortious.

NETTLE J: You have damages for the conversion of the phone in manipulating it. You want not damages for that, but an injunction in effect deleting their copy of the information.

MR LLOYD: That is ‑ ‑ ‑

NETTLE J: It is not alleged to be confidential, and it does not sound as though it is to you. On what basis would there be an injunction mandatorily to compel them to delete it?

NETTLE J: What is the cause of action that underlies the injunction?

MR LLOYD: Damages is not an adequate remedy to us in the circumstances of this case. To undo the tort – destruction achieves the undoing of the tort.

EDELMAN J: You want to really say that the information is property that you want to treat in the same way as tangible property and it is property of your client.

MR LLOYD: Well, I do not think I have to go that far. It is sufficient that the respondents had put themselves into a position of having information which was in our possession only by reason of a series of torts in order to get that information. If we want relief in respect to undo that tort then, although damages can be a remedy, injunctions can also be a remedy to undo it and the damages does not provide us with useful or material relief in the circumstances of this case, unlike an injunction.

GORDON J: The difficulty about even assessing that contention is we do not know what this material is. It is not before the Court, so how does one make an assessment even at that level, assuming you are right in the way you have put your argument? You are asking for a mandatory injunction. One has to put into play a set of considerations and balances and work out where the balance lies, putting aside even the cause of action.

This exchange led to a fairly lengthy debate the following morning as to the court’s power to grant an injunction requiring destruction of the copied data.

In particular, the court wanted to know if the journalist was asking the court to fill a gap in the law and confirm the existence of a tort of invasion of privacy, which would serve as the cause of action to support the power to grant an injunction.  In 2001 the High Court left open the possibility that such a tort may be recognised in another case involving conduct by a trespasser, namely ABC v Lenah Game Meats.  The journalist’s counsel ultimately conceded that the facts before the court (which had been agreed by the parties) were not sufficient to support such an argument as there was no evidence of the contents of the copied data.  However, the journalist reserved the right to contend, in separate proceedings, that such a tort may exist.

The other basis on which the journalist argued that the court had power to grant an injunction requiring destruction of the copied data was based on public law decisions.  In the Johns case, decided in 1993, the High Court held that where a statute confers an obligation on a person to produce documents or information to a public official for a purpose, there is an implied duty on the public official to only use the information provided under compulsion for the relevant purpose, or another purpose permitted by law, whether or not the information was confidential.  That decision was not directly applicable to this case, because the Johns principle imposes limits on the right to use or disclose information that has lawfully come into the possession of a public official.  Here, the journalist claimed that the copied data was obtained by an act of trespass.  So the next step in the journalist’s argument was as follows:

  • the allegedly unlawfully copied data should only be used and disclosed by police in the way permitted by the Crimes Act, especially the provisions relating to search warrants;
  • section 3ZQU of the Crimes Act sets out the permitted uses of information and things obtained under search warrants issued under the relevant part of the Crimes Act;
  • if the warrant in this case is invalid, in the eyes of the law it was not issued under the relevant part of the Crimes Act, therefore section 3ZQU does not permit any use of the allegedly unlawfully copied data, with the result that there are no permitted uses of the copied data;
  • as there are no permitted uses of the copied data, there is power to grant an injunction, subject to discretionary factors, to either prevent any use of the copied data by the police or to destroy the copied data.

The Attorney-General’s response

In response to these arguments, the Attorney-General’s position was that:

  • in relation to the first proposed basis on which an injunction might be granted, an injunction should only be granted in to protect an established legal right, which did not exist in this instance; and
  • the Johns argument did not assist the journalist because the police only propose to use the copied data for a purpose permitted by section 3ZQU, namely to investigate whether a serious crime has occurred.

Further, even if the court had power to grant an injunction, the Attorney’s argument was that, as a matter of discretion, no injunction ought to be granted because (1) there is a strong public interest in allowing an investigation into whether a serious crime has been committed to proceed, and (2) to require the police to cease that investigation would be inconsistent with the law of evidence that allows illegally obtained materials to be admitted into evidence in certain circumstances.

Crystal ball gazing

Given the way the arguments emerged, it is not likely that this case will be the one to decide whether Australian law recognises a tort of invasion of privacy.  But there may be some non-binding commentary on the issue from the court.

In some ways, this case raises issues similar to the recent decision in the Paradise Papers case (Glencore v Commissioner of Taxation), in which the High Court held that the Commissioner could use documents the subject of legal profession privilege, even though those documents had only come into the possession of the Commissioner after an unidentified hacker obtained unauthorised access to the IT system of the Bermudan law firm retained by Glencore, and published the documents on the internet.

In Glencore the relief sought was an injunction to restrain use of the relevant documents and information derived from them, coupled with an order for delivery up of copies of the documents held by the Commissioner.  The court refused to grant an injunction, stating that Glencore’s argument “rests upon an incorrect premise, namely that legal professional privilege is a legal right which is capable of being enforced, which is to say that it may found a cause of action”.  This reasoning is consistent with the line of questioning from the bench discussed above.  If I was a betting man, I would put my money on the court refusing to grant an injunction on the first basis proposed by the journalist.

The argument based on Johns also has some parallels to the Paradise Papers case.  In that case, Justice Keane’s interaction with Glencore’s counsel drew out Glencore’s position that the claim was to prevent any use by the Commissioner of the documents at all, “even if he uses them to get the right actual result”.  The decision in Johns certainly supports the position that any information or thing seized under a search warrant ought not be used for any purpose outside of those identified in section 3ZQU.  But it may be a step too far for the court to find that the police may not use the copied data for the purpose for which it could have been used had the warrant been validly issued.