When Mary Donaldson married Prince Frederik in Copenhagen in 2004, her fairytale story propelled her to instant celebrity status. Subsequent return visits by Princess Mary to Tasmania raised issues of what laws could protect the privacy of the Royal couple and their children. Now, with another royal wedding planned for 29 April 2011 in London between Prince William and Kate Middleton, the question arises of what protections the soon-to-be Princess will have to her privacy when she visits her Australian relatives. (Kate’s second cousin lives in the tiny sheep town of Gilgandra, an hour north of Dubbo, and is said to be ecstatic at the prospect of a royal visit, or perhaps even honeymoon.)
Should Will and Kate be drawn by the allure of yabby-catching, bird-watching and 24-hour truck stops, what protections against invasion of privacy can the couple expect in the NSW jurisdiction? William has re-iterated his vows to protect Kate from the media, and she recovered £5,000 in damages from a paparazzi agency under the United Kingdom’s Protection from Harassment Act 1997 earlier this year when she was repeatedly photographed while on a family vacation in Cornwall. British and NSW laws, however, are at different stages of development in their approaches to privacy rights.
In the UK, protection of privacy rights has been influenced by incorporation into domestic law of elements of the European Convention on Human Rights, specifically balancing Articles 8 (the right to privacy) and 10 (the right to freedom of expression). Privacy law in the UK is being developed judicially rather than through legislation, and is framed not as a tort of privacy (as in the United States) but rather as an extended right to sue for breach of confidence. This cause of action has been relied upon in recent years by celebrities, including Lily Allen, Naomi Campbell and Max Mosley. In these cases, the major issue was whether the invasion of the various celebrities’ privacy was justified by a legitimate public interest in the information obtained and published. In Douglas v Hello!, Catherine Zeta-Jones and Michael Douglas recovered damages and an account of profits from Hello! Magazine, which published surreptitiously-taken photos of their wedding in 2000.
Judges across Australia and in New South Wales in particular, however, have been more timid than other common law jurisdictions in recognising an independent cause of action for breach of privacy, and the position is unresolved (see our post on Tiger and Lara – the public, the private and the inappropriate here). Only a handful of judges in Victoria and Queensland have seized the opportunity to develop an independent actionable right to privacy in Australia, which was tentatively suggested in 2001 by Gummow and Hayne JJ in ABC v Lenah Game Meats Pty Ltd. In 2003, Skoein DCJ did so, asserting in Grosse v Purvis that recognition of an individual’s rights to recover damages for identifiable injury inflicted by a breach of privacy was ‘a bold…but logical and desirable step’.
In October 2006 the ALRC raised the question of whether a uniform statutory tort of invasion of privacy ought to be introduced across Australian jurisdictions in Issues Paper 31. In response, the NSWLRC released Report 120 in April 2009, proposing an independent statutory cause of action which would be found in amendments to the Civil Liability Act 2002 (NSW).
Under the proposed cause of action , an individual’s privacy will be invaded if the conduct of another person invaded the privacy that individual was reasonably entitled to expect in all of the circumstances, having regard to any relevant public interest (including the public’s interest in being informed about matters of public concern). Proof of damage under the proposed cause of action would not be necessary, and a wide range of injunctive, compensatory and declaratory remedies would be available, including for non-economic loss.
Until a statutory cause of action for privacy uniform is introduced, however, Kate and William may be forced to rely on miscellaneous and tangential provisions similar to the Police Offences Act 1935 (Tas) that were touted to provide criminal sanctions to protect Princess Mary in Tasmania. Section 13A of that Act provides that where a ‘reasonable person would expect to be afforded privacy’ and is observed or recorded by another person either in a private place or while engaging in a private act, that other person is guilty of an offence punishable by up to 12 months imprisonment.
It appears for the moment though, that Kenya, current bookies’ favourite for the royal honeymoon, will trump Gilgandra.