LAWS70082 · Privacy Law
Common Law Privacy
How did Australian law protect privacy before the 2024 statutory tort? The one-line rule: there was no general tort of invasion of privacy at common law. In ABC v Lenah Game Meats the High Court left the door open but created no such tort — and held that corporations have no privacy. So a patchwork of established actions did the work, above all the equitable action for breach of confidence, whose three elements come from Coco v A N Clark, whose reach was extended to third parties by Spycatcher, and which after Giller v Procopets can yield equitable compensation including damages for distress. This chapter is the essential background that explains why Parliament finally enacted a statutory tort — and it remains live, because breach of confidence still runs in parallel with the new action. A recurring trap: Grosse v Purvis and Doe v ABC were lone first-instance experiments, never appellate-endorsed, and are not authority for a common-law tort.
What this chapter covers
- 01The legal question: privacy protection before 2024
- 02No general common-law privacy tort — the orthodox position
- 03ABC v Lenah Game Meats: door left open; corporations have no privacy
- 04The first-instance experiments (Grosse, Doe) — NOT authority
- 05Breach of confidence — the three Coco elements
- 06The Spycatcher third-party extension
- 07Giller v Procopets — equitable compensation for distress
- 08How the common law sets up the case for a statutory tort
Worked example: breach of confidence on the facts
- +1State the vehicle: there is no general common-law privacy tort (Lenah), so the action is the equitable action for breach of confidence, tested by the three Coco v A N Clark elements.
- +1Element 1 — quality of confidence: a medical file is plainly not trivial and not in the public domain — it has the necessary quality of confidence.
- +1Element 2 — obligation of confidence: the employee owed an obligation; and via Spycatcher, the stranger who knows (or ought to know) the information is confidential is also bound, despite no relationship or contract.
- +1Element 3 — unauthorised use: the threatened posting is a threatened unauthorised use to the patient’s detriment — an injunction may restrain it.
- +1Remedy: after Giller v Procopets, equitable compensation can include damages for the patient’s distress, not just economic loss.
Key terms
- No general privacy tort
- The orthodox Australian position: the common law recognises no free-standing tort of invasion of privacy. ABC v Lenah Game Meats left the question open but created none — the gap the 2024 statutory tort fills.
- Breach of confidence
- The equitable action that did privacy’s work pre-2024. Three elements (per Coco v A N Clark): information of a confidential quality; imparted (or obtained) in circumstances importing an obligation; used or threatened to be used without authorisation, to the confider’s detriment.
- Spycatcher extension
- The principle that an obligation of confidence can bind a third party who knows, or ought to know, that information is confidential — uncoupling the action from any pre-existing relationship and letting confidence protect private facts generally.
- Giller v Procopets
- The Victorian authority establishing that equitable compensation for breach of confidence can include damages for distress — closing a remedial gap and making confidence a real privacy remedy.
- First-instance experiments
- Grosse v Purvis and Doe v ABC — lone trial-level decisions that recognised a privacy tort but were never endorsed on appeal. They are NOT authority for a common-law tort and must not be cited as such.
Common Law Privacy FAQ
Did Lenah create a privacy tort?
No — this is the precise point to get right. The High Court in ABC v Lenah Game Meats left the door open for a future tort but created none, and held that corporations have no privacy interest to protect. Treat it as the case that declined to foreclose a tort, not one that recognised it.
Can I cite Grosse v Purvis or Doe v ABC as authority for a privacy tort?
No. Both are lone first-instance decisions, never appellate-endorsed; citing them as authority for a common-law privacy tort is a flagged error. You may mention them as historical experiments, clearly labelled as non-authoritative.
Is breach of confidence a tort?
No — it is an equitable action, historically relationship-based (doctor/patient, employer/employee). Spycatcher uncoupled it from any relationship, but it still protects confidential information, not privacy at large, which is why it could not do everything a true privacy tort does.
Does breach of confidence still matter now there is a statutory tort?
Yes. The two run in parallel: a fact pattern can engage both the new statutory tort (Topic 3) and breach of confidence. A complete take-home answer runs the statutory tort first, then overlays breach of confidence as the established equitable route — and notes Giller for distress damages.
Exam move
Fix the orthodox position first — no general privacy tort; Lenah left the door open and ruled corporations out — then drill the three Coco elements until you can test them on facts cold. Tag Spycatcher (third-party reach) and Giller (distress damages) as the two extensions that make confidence usable. Park Grosse and Doe in a ‘not authority’ box so you never cite them wrongly. In a problem, run breach of confidence in parallel with the statutory tort; in an essay, the seam ‘confidence as law meeting ethics → the road to a statutory tort’ is ready-made.
