'The Two Limbs of Privacy' 'The Right to Protection of Privacy and Freedom from Harassment' 'Identifying the Emergence of a Framework for the Recognition of Privacy'

by Lee Harris
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With the recent success of actions for breach of privacy in the Queensland and Victorian District Courts, the codification of invasion of privacy under the Queensland Criminal Code, and the initiation of inquiries into statutory reform in other states, the emergence of a tort of invasion of privacy inspires fresh debate. The polarity in approaches taken in the recognition of invasion of privacy in the civil law cases of Grosse v Purvis and Jane Doe v Australian Broadcasting Corporation may provide the basis for the recognition of privacy under two limbs, one pertaining to the right to protection of privacy and the other relating to freedom from harassment. Through an examination of the recognition of privacy in civil law and statute, this paper identifies that a distinction emerges between the right to keep something private and the freedom to be left alone. Protection of privacy and freedom from harassment are concomitant, and therefore there is overlap between the types of conduct that fall under each limb. However, as will be demonstrated, it may be possible to recognise a marked juncture between privacy and harassment that supports the development of separate torts, since the right to privacy does not always coincide with the freedom to be left alone.

By reflecting on the approach used to recognise privacy in both civil law and statute it may be possible to conceptualise the direction of development of privacy and harassment in tort. The Criminal Code (Qld) emulates the dichotomy between privacy and harassment that supports the recognition of two limbs in civil law and an examination of the aforementioned cases reveals that there is a tendency to distinguish between privacy and harassment and to draw a statutory inference to characterise and strengthen the nature of the subject matter as private.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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