Given the uncertainty about the right to sue for breach of privacy in Australia, I did not expect to see any significant litigation following the introduction of the new data breach notification provisions in February 2018. It looks like I was wrong, with at least three data breach related class action claims currently on the go in Australia.
However, it remains to be seen how successful these actions will be, either in establishing a right to sue for breach of privacy or proving an entitlement to damages.
Key take-aways
- It’s not clear there’s a right to sue for breach of privacy in Australia.
- Three data breach related class actions have been commenced, either arguing that there is a common law right to sue or seeking compensation pursuant to the Privacy Act.
- The current law suits may result in clarification of the existence of a common law right to sue (in addition to the right to claim compensation from the Privacy Commissioner).
- However, even if some right to sue for interference with privacy is established, it is not clear what level of damages or compensation may be awarded.
- A previous class action-based claim to the Privacy Commissioner was not successful in securing payment of damages to the claimants.
- But, if confirmed to exist, the possibility of civil litigation may represent a significant new risk to Australian organisations affected by a data breach.
Background
The status of the right to sue for a breach of privacy has been unclear in Australia for many years.
The High Court left open the possibility of such a cause of action in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd in 2001. Since then, a tort of invasion of privacy has been recognised by two lower court decisions: Grosse v Purvis in the District Court of Queensland and Doe v Australian Broadcasting Corporation in the County Court of Victoria. However, both cases were settled before appeals by the respective defendants were heard. There have also been cases where the existence of a common law right to sue for breach of privacy has been questioned…Click here to read full article.
