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Vol 12 No 4 - December 2007

Should Australia force the square peg of privacy into the round hole of confidence or look to a new tort?
Mark Johnston, Barrister, Queensland Bar

The principal issue for determination in this article is — assuming that the legislature is unlikely to address the protection of personal privacy any time soon and that the High Court is generally inclined to afford some level of protection in an appropriate case—should Australia force the square peg of privacy into the round hole of confidence or look to a new tort. The article initially provides a brief analysis of the meaning of ‘privacy’ and the need for legal protection. A snapshot of the approach taken in the United States, New Zealand and the United Kingdom is provided before tackling the issue of how to best achieve protection in Australia and to what extent. Two broad options for Australia are analysed—firstly, reliance on developing and extending the equitable action for breach of confidence and secondly, developing two new torts (wrongful disclosure of private facts and wrongful intrusion).

Full text versions of articles are available from LexisNexis online.

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