The need for statutory recognition in Australia for a right to privacy
The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. [1]
In 1890 Warren and Brandeis wrote there was no recognition at common law of a general right of privacy. The right has at times been referred to as the “right to be let alone”. Warren and Brandeis thought the right of privacy was the key to the enjoyment of life, but was under attack in modern society.
There is no doubt that the digital age continues to evolve and progress at an alarming pace. The technology and capabilities of drones (unmanned aerial devices) is mind boggling and has far-reaching implications in this area. Interesting issues arise as to surveillance technologies which are not devices in an orthodox sense, such as software or networks of devices, and whether there should be a difference in the law between surveillance using a device and surveillance using a communications network. Australian laws need to address the present and future challenges and create certainty as to the scope and effect of such laws. [2] There is no uniformity in the various State laws and it might be argued that the common law has not provided adequate remedies in the area of privacy law.
In this paper, I will give an overview of some of the issues and jurisprudence in overseas jurisdictions and explore the issue of whether there should be statutory recognition of the right to privacy particularly at a Commonwealth level. It is beyond the scope of this paper to discuss the international position in any detail and what the precise content of any statute should be.
Current Domestic Laws
The Commonwealth Privacy Act 1988 (the Privacy Act) provides a number of protections to the Australian public. Schedule 1 of the Privacy Act contains thirteen privacy principles which govern how organizations should collect, manage and use private information. The Privacy Act does not provide adequate protections for all Australian citizens and it contains exemptions for a number of bodies. These include: small businesses, political organizations, media entities, and individual citizens who are acting in their personal, family or household capacity. The “Privacy Act” is not designed to protect individuals from private intrusion; this being an invasion into an individual’s private sphere by watching, listening or recording their private activities or affairs.
In Queensland, we have the Information Privacy Act 2009 which sets out how the government may collect, store, use and give out private information. There is a right to make a complaint if your privacy rights are breached. Similar legislation exists in the other states and territories that restricts the use of listening, optical, data and tracking surveillance devices. These surveillance device laws provide criminal offences for using a device to record or monitor private conversations or activities, for tracking an individual or for monitoring information on a computer system. [3] There are also restrictions on communicating the information obtained through the use of a surveillance device.
State surveillance laws have differences. The states differ in terms of the type of surveillance devices they regulate and the circumstances in which those devices may or may not be used. For example, in Victoria, Queensland and the Northern Territory, it is permissible to record a private activity in the absence of consent. This is not the case in other jurisdictions. There are also inconsistencies in workplace surveillance legislation which are only in place in New South Wales, Victoria and the Australian Capital Territory. These laws prohibit employers monitoring their employees at work through covert surveillance methods, such as the use of CCTV cameras or computer, internet and email surveillance. [4] There are also gaps in the criminal legislation.
In some jurisdictions current laws provide for offences relating to photography being used for indecent purposes [5] or indecent filming without consent. [6] There are laws that protect indecent photography of children in private and public places. [7] In each case the laws are restricted to specific subject matter, for example, whether the photography is a matter of sexual nature or for a specific purpose, such as for sexual gratification. The laws are important in protecting vulnerable individuals, but they are not broad enough to provide general privacy protection for other members of society.
In Queensland and Victoria, individuals are expressly prohibited from engaging in “cyber-harassment” committed through “electronic messages”. [8] Similarly, in the Criminal Code Act 1995 (Cth), there are offences for conduct amounting to harassment that occurs via a communication service (this also includes the internet). Relevant offences include, “using a carriage service to menace, harass or cause offence” [9] and “using a carriage service to make a threat”. [10]
At the Commonwealth level, the operation of the Privacy Act is restricted to the actions of government agencies and big businesses. It does not cover the activities of individuals acting in a personal capacity.
The Human Rights and Equal Opportunity Commission Act 1986 (Cth), involved the Australian Federal Parliament in ratifying the International Covenant on Civil and Political Rights (ICCPR). [11] Article 17 of the ICCPR requires contracting states to ensure that their domestic legal systems provide adequate protection against interferences with privacy. [12] It is clear that even though legislation has been enacted at federal and state levels protecting the privacy of information [13] and communications, [14] the common law still has not recognised an enforceable right to personal privacy. [15]
The Common Law Position in Australia
A helpful starting point is the decision in Victoria Park Racing v Taylor [16] which concerned an attempt by the owner of a racetrack to prevent the defendants from observing and broadcasting the races and race information displaced at the track from the vantage point of a platform constructed on neighbouring land. The plaintiff based its claim on various grounds, including nuisance, to which Latham CJ remarked, “[h]owever desirable some limitation upon invasions of privacy might be, no authority was cited which shows that any general right of privacy exists”. [17] The High Court held that the owner and operator of the racecourse could not prevent another party from observing and broadcasting particulars carried out on the plaintiff’s property. For the next 60 years, this case was regarded as the proposition that the common law of Australia does not recognise a general tort of invasion of privacy.
The time was ripe for reconsideration of this issue when Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [18] came before the High Court. It looked at this issue and rejected the assumed authority of the Victoria Park case. Gummow and Hayne JJ (with whom Gaudron J agreed) stated “Victoria Park does not stand in the path of the development of…a cause of action [for invasion of privacy]”. [19] Kirby J agreed, stating “[i]t may be that more was read into the decision in Victoria Park than the actual holding required”. [20] Callinan J summed up the “narrow majority” decision as being “a product of a different time”, [21] which was described as “conservative” and having “the appearance of an anachronism”. [22] His Honour concluded that the decision in Victoria Park clearly had no application in a case of invasion of privacy. [23] Gleeson CJ held that a useful practical test of whether something is private is whether the disclosure or observation of the information or conduct would be highly offensive to a reasonable person of ordinary sensibilities. [24]
Although the position of Victoria Park in Australia was clarified, the common law tort of privacy has been left open for development by the High Court. Only Callinan J went further and expressed his support for the recognition of a right to privacy, at least for the benefit of individuals as opposed to corporations:
“It seems to me that, having regard to current conditions in this country, and developments of the law in other common law jurisdictions, the time is right for consideration whether a tort of invasion of privacy should be recognised in this country, or whether the legislatures should be left to determine whether provisions for a remedy for it should be made.” [25]
Gleeson CJ’s test was discussed in Campbell v MGN Ltd [2004] 2 AC 457. This case concerned the model, Naomi Campbell, who volunteered information publicly to the media about her private life, but untruthfully said she did not take drugs. She was photographed leaving a drug therapy group. The plaintiff sought damages for breach of confidentiality. The House of Lords found by majority for Ms Campbell. Lord Hope noted that a duty of confidence will arise whenever the party alleged to be subject to the duty “knows or ought to reasonably known that the other person can reasonably expect his privacy to be protected”. [26] Lord Hope considered the test proffered by Gleeson CJ in Lenah Game Meats to be useful in cases where there was room for doubt. [27] Baroness Hale said “an objective reasonable expectation test” is much simpler and clearer than the Gleeson CJ test, noting that in Australia there were no protections like the European Convention on Human Rights. Her Ladyship thought that Gleeson CJ did not intend his test to be the only test. [28] Lord Carswell considered it was not necessary to employ the Gleeson CJ test. His Lordship stated “it is sufficiently established by the nature of the material that it was private information which attracted the duty of observing the confidence in which it was imparted to the respondents.” [29]
In Australia, a common law right to privacy has been dealt with by two lower courts in the cases of Grosse v Purvis [30] and Doe v Australian Broadcasting Corporation. [31]
In Grosse, the District Court held that the essential elements of the action for invasion of privacy were:
(i) a willed act by the defendant which intruded upon the privacy or seclusion of the plaintiff, in a manner which would have been considered highly offensive to a reasonable person of ordinary sensibilities; and
(ii) it must have caused the plaintiff detriment in the form of mental, psychological or emotional harm or distress which prevented or hindered the plaintiff from doing an act which he or she was lawfully entitled to do.
Grosse was not followed [32] by the Federal Court in Kalaba v Commonwealth of Australia, [33] although nothing significant was provided in the way of reasons for this, and the court appeared simply to rely on the absence of an earlier authority.
Giller v Procopets (2008) 24 VR 1 was a case where the respondent without the consent of the appellant distributed a tape of them having sex. She had consented to some of the films but not all of them.
All Judges accepted that equitable damages for breach of confidence were available to the plaintiff.
Neave JA at [428] held that the essence of the case if where the plaintiff has been embarrassed by the exposure of private information.
In Earl v Nationwide News Pty Ltd [2013] NSWSC 839, White J considered a situation where the defendant had published details of medical treatment received by the plaintiff (a professional footballer). An interlocutory injunction had been granted restraining the defendant from using or disclosing information concerning his medical treatment. An employee of the defendant had copies of accounts from the plaintiff’s doctor [34] .
The defendants had argued that the plaintiff‘s confidential information had passed into the public domain, such that equity should not intervene to extend the injunction.
White J at [26] held that he did not consider that the principles concerning the deprivation of a plaintiff of an equitable remedy because material had passed into the public domain were settled.
Further, Smith DCJ held in Doe v Yahoo! 7 Pty Ltd & Anor; Wright v Pagett & Ors [35] that “…an action for breach of confidence is a developing area of law…and in the light of the uncertain state of the law and possible arguments available, it is inappropriate to strike out the claims concerning breach of confidence”. [36] His Honour ultimately held that the claims for breach of confidence and invasion of privacy should not be struck out.
Using Conventional Causes of Action
Lawyers have had to, with some ingenuity, resort to conventional causes of action to provide a remedy for clients who have had their privacy invaded. However, it is not always the case that the common law provides the flexibility to provide an adequate remedy to meet a particular situation. The traditional causes of action that have been employed are:
i) breach of confidence;
ii) defamation;
iii) trespass; and
iv) nuisance.
It is useful to examine how the courts have considered these remedies.
Breach of Confidence
The courts have held that the writer of letters and manuscripts has a right to prevent them being published without his or her permission. [37] The law of breach of confidence can also be used to protect secrets learnt by another during a personal relationship, whether it is heterosexual or not. [38] The same applies to contracts with an implied condition of confidence, such as those with banks, medical practitioners, pharmacists, lawyers and even gymnasium owners. [39]
Nuisance
This tort has been used to protect privacy, in so far as privacy is associated with interests in land. Nuisance cannot be established when the defendant is merely looking onto a neighbour’s property, whether this be land or racecourse, like in Victoria Park. However, if there is actual persistent spying, it may be actionable. [40] The same applies to constantly telephoning a person and thus disturbing the privacy of their home, provided that the person so disturbed has an interest in the land and is not just a licensee. [41] These cases demonstrate that the protection of privacy is merely incidental to another legally recognised interest.
Trespass
The law of trespass has been used to eject the media from property on which they are attempting to interview, film or record the occupants. [42] It has been held to be available to those entitled to possession and not to licensees and those invited by co-owners or others entitled to invite on to the land in question. [43]
An injunction is only available when damages are an inadequate remedy. It has been held that damages will usually be adequate. [44] Trespass cannot be used against the media once they have left the property so they can technically film from across the road. It has been held that telephone tapping by authorities was not tortious or criminal, though this position has been reversed by statute. [45] It is not illegal to pretend to be a person entitled to personal information about others, unless a crime or tort is committed, for example fraudulent conversion. [46]
Generally speaking, there is no common law right “not to be photographed” that can be exercised to prevent photography or filming of someone in a public place without their consent. [47] There is also no prohibition on taking photographs of private property from public land, unless the conduct amounts to stalking or the intent is to pry on an individual. [48] Private property owners or public entities such as local councils, education institutions or museums may regulate photography on private property or places they control by the express terms on which entry is authorised. In other cases, a lack of authority to enter for the purpose of taking photographs or recordings may be inferred. [49]
International Privacy Jurisprudence
International jurisdictions provide an interesting comparison, despite the different history, culture and attitudes which have developed in New Zealand, Canada, United States and United Kingdom (UK).
United Kingdom
The UK is a jurisdiction which is highly accountable to human right legal instruments, primarily the Human Rights Act 1998 (UK) (HRA) and the European Convention on Human Rights (ECHR). Article 8 of the ECHR relevantly states that everyone has the right to respect for their private and family life, their home and their correspondence. There shall be no interference with this right by a public authority except by lawful enforcement in the interests of national security, public safety, the economic well-being of the country, the preventing of disorder or crime, the protection of health or morals, or the protecting of the rights and freedom of others. Article 10 also provides that everyone has the right to freedom of expression and the prevention of disclosure of confidential information.
The Super Injunctions
There have been a number of cases in the UK involving injunctions which prevent the publication of information about celebrities which is confidential or private, or the publication of information about the existence of the relevant injunction, proceedings or orders (“super-injunctions”). In DFT v TFD [2010] EWHC 2335 (QB), Sharp J refused to extend a super-injunction which had been granted to prevent “tipping off” a blackmailer, making instead what is now known as a “DFT Order”. This order limited the publication of what was contained in the order and in the public judgment. Further, in Ntuli v Donald [2010] EWCA Civ 1276, the Court of Appeal discharged a super-injunction granted in that case by Eady J saying that they were “simply unpersuaded” that such a restriction was necessary.
It may be contended that the judiciary in the UK have consistently refused to recognise a general tort of privacy. However, judges have attempted to enshrine principles from the ECHR, primarily Articles 8 and 10, to create a new tort of “misuse of private information” originating from the equitable doctrine of confidence. [50] This development was not the result of the implementation of any specific provision of the HRA, but rather a development of the common law inspired by “Convention values”. It has been observed by Tugenhat J in AKJ v Commissioner of Police for the Metropolis, [51] that the right to privacy has long been recognised by the common law and that as the tort is now part of the common law, any amendments to the HRA will not automatically diminish its applicability.
New Zealand
New Zealand has the Privacy Act 1993 which regulates both the private and public sector. There is a civil cause of action and the New Zealand courts have recognised the common law torts of misuse of private information [52] and of intrusion. [53]
The Court of Appeal in Hosking v Runting [54] recognised a “private facts” tort. This tort provides relief for situations where information violations have occurred. This tort will be satisfied when the plaintiff has a reasonable expectation of privacy and when the publicity given to those facts would be considered “highly offensive to an objective reasonable person”. [55] Whether an intrusion tort might also be recognised was a question left open by the Supreme Court and in 2012, the High Court did recognise the tort in C v Holland. [56] This is a significant departure for New Zealand from merely protecting private information and interests.
Canada
The provinces of British Colombia, Manitoba, Newfoundland and Labrador, Quebec and Saskatchewan have enacted statutory torts for invasion of privacy and the Ontario Court of Appeal has also recognised the common law protection.
In Jones v Tsige [57] the Court of Appeal, for the first time, recognised the novel privacy tort of “intrusion upon seclusion”. In this case, the plaintiff (Jones) and the respondent (Tsige) both worked for the same Bank. The plaintiff and respondent had no prior relationship, albeit that the respondent was now in a relationship with the plaintiff’s former husband. The respondent had accessed Ms Jones’ bank account over 174 times and was able to view the appellant’s personal information and account transactions. The respondent had not distributed any of this information and upon being discovered, she apologised for her actions. The appellant brought claims of invasion of privacy and breach of fiduciary duty.
At first instance the claim was dismissed by Justice Whitaker who held that there was no “free standing” right to privacy under the Canadian Charter or at common law. Ms Jones appealed this decision and the Court of Appeal ultimately held that Ontario law did recognise an intrusion upon seclusion tort protecting privacy interests. The appellant was awarded $10,000 in damages.
United States
In the United States there have been four distinct privacy torts for around half a century: intrusion upon a plaintiff’s seclusion; public disclosure of private facts; placing a plaintiff in false light in the public eye; and appropriation of a plaintiff’s name or likeness for gain. These were developed by Professor, Dean William Prosser. He argued that what emerged was “four distinct kinds of invasions of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff …to be let alone”. [58]
The impact of Professor Prosser’s theory has been extensive. However, the tort of protection of privacy continues to be a disparate collection of common law doctrines and statutory provisions. The United States has recognised the tort of intrusion upon seclusion. [59] This tort has been said to focus on the “means of obtaining private information rather than on the publication of the information so gained. The core of the tort is the offensive prying into the private domain of another”. [60]
Conclusion
It is clear from the above comparisons, that privacy rights have been differently perceived by the legislature and courts. The Australian position remains unclear, with the legislature needing to provide some clarity. The question then becomes – should the protection of privacy be through statutory enactment or through the common law on a case by case basis? There is some doubt as to whether the common law will be flexible enough on a case by case basis to deal adequately with the issue. The difficulty with the doctrine of precedent is that it only deals with specific issues raised in the case. One view could be that the legislature has the ability to address current and future issues with some flexibility and provide a plaintiff with adequate remedies.
It is noteworthy that the Australian Law Reform Commission (“ALRC”) 2014 report, “Serious Invasions of Privacy in the Digital Era”, recommended that if a statutory cause of action for a serious invasion of privacy is to be enacted, it should be enacted by the Commonwealth in a Federal Act. Additionally, the House of Representatives Standing Committee on Social Policy and Legal Affairs 2014 report, “Eyes in the Sky”, recommended the government consider giving effect to the ALRC 2014 report’s design of a statutory cause of action for serious invasions of privacy. It also recommended that the legislation be introduced by July 2015.
The invasion of privacy, whether it be intrusion upon seclusion or misuse of private information, are obvious examples where there should be statutory protection. It may be argued that statutory protection should be confined to intentional reckless invasion of privacy or a serious contravention [61] but again this is a matter for further debate and consideration.
The common law in Australia to date has not provided any helpful solutions notwithstanding the comments by the High Court in Lenah Game Meats. Although there have been developments in the common law in the UK in this area, this has been in the context of the Human Rights Act, which lends support to the argument that statutory recognition of privacy rights would be a positive development.
KEITH HOWE
Footnotes
[1] Samuel Warren and Louis Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193, 196.
[2] This is within the context of the proliferation of social networking sites and the array of Apps on mobile phones which can capture moving and still pictures, as well as having recording capabilities.
[3] Surveillance Devices Act 2007 (NSW); Invasion of Privacy Act 1971 (Qld); Listening and Surveillance Devices Act 1972 (SA); Listening Devices Act 1991 (Tas); Surveillance Devices Act 1999 (Vic); Surveillance Devices Act 1998 (WA); Listening Devices Act 1992 (ACT); Surveillance Devices Act (NT).
[4] Workplace Surveillance Act 2005 (NSW); Surveillance Devices (Workplace Privacy) Act 2006 (Vic);
Workplace Privacy Act 2011 (ACT).
[5] Summary Offences Act 1988 (NSW) s 4; Criminal Code Act 1899 (Qld) s 227(1); Police Offences Act 1935 (Tas) s 13.
[6] Crimes Act 1900 (NSW) ss 91K—91M; Criminal Code Act 1899 (Qld) s 227A(1); Summary Offences Act
1953 (SA) s 26D; Police Offences Act 1935 (Tas) s 13A; Summary Offences (Upskirting) Act 2007 (Vic) s 41A.
[7] See for example, Criminal Law Consolidation Act 1935 (SA) s 63B.
[8] Crimes Act 1958 (Vic) s 21A(2)(b) and Criminal Code Act 1899 (Qld) s 359A(7)(b).
[9] Criminal Code Act 1995 (Cth) s 474.17.
[10] Ibid s 474.15.
[11] Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[12] Also see Universal Declaration of Human rights, GA Res 217A(III), UN GAOR, 3rd sess, 183rd plen mtg, art 12, UN Doc A/810 (III) (1948) and European Convention for the Protection of Human rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222, art 8 for the international recognition of rights to privacy.
[13] Privacy Act 1988 (Cth).
[14] Listening Devices Act 1992 (ACT); Listening Devices Act 1984 (NSW); Surveillance Devices Act 2000 (NT); Invasion of Privacy Act 1971 (Qld); Listening and Surveillance Devices Act 1972 (SA); Listening Devices Act 1991 (Tas); Surveillance Devices Act 1999 (Vic); Surveillance Devices Act 1998 (WA).
[15] Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1973) 58 CLR 479, 496 (Latham CJ), 521 (Evatt J)(‘Victoria Park’).
[16] Ibid.
[17] Ibid 277.
[18] (2001) 208 CLR 199; 185 ALR 1 (‘Lenah Game Meats’).
[19] Ibid 248.
[20] Ibid 277.
[21] Ibid 321.
[22] Ibid 322.
[23] Ibid 328.
[24] Ibid 226.
[25] Ibid 328.
[26] Campbell v MGN Ltd [2004] 2 AC 457, [83].
[27] Ibid [94].
[28] Ibid [135] and [136].
[29] Ibid [166].
[30] [2003] QDC 151.
[31] [2007] VCC 281 (‘Doe’).
[32] Although it has been followed in Doe, a decision of the Victorian District Court. Hampel J awarded damages for breach of privacy in the amount of $234,190. In this case, the identity of the plaintiff was unlawfully published consequent upon the plaintiff being the victim of a sexual assault.
[33] [2004] FCA 763.
[34] 192 and 193
[35] [2013] QDC 181
[36] Ibid [196], [201].
[37] Pope v Curl (1741) 2 Atk 342; 26 ER 608; Thompson v Stanhope (1774) Amb 737; 27 ER 476; Hopkinson v Burghley (Lord) 1 (1867) LR 2 Ch App 447; Andrew v Raeburn (1874) LR 2 Ch App 522; Lytton (Earl) v Devey (1884) 54 LJ (NS) 293, 295; Thurston v Charles (1905) 21 TLR 659 and Turner v Robinson (1860) 10 Ir Ch 121, 132. Also see, Steel, ‘A Non-material Form of Copyright: The Strange History of Lecturers’ Copyright’ (1998) 4 Australian Journal of Legal History 185, 196, 205, 219-20.
[38] See Argyl (Duchess) v Argyll (Duke) [l967] 1 Ch 302. For a case in which the element of confidence was lacking, see In the Marriage of Gibb (1979) 5 Fam LR 694. Also see Stephens v Avery [l988] Ch 449; Commonwealth v John Fairfax & Sons (1980) 147 CLR 39, 51.
[39] See Fenwick and Phillipson, ‘Confidence and Privacy: A Re-examination’ [l996] Cambridge
Law Journal 447, 449-50 (victim of the breach of contract/confidence here was the late Diana, Princess of Wales).
[40] Lyons & Sons v Wilkins [l899] 1 Ch 255, 267, 271; Torquay Hotel v Cousins [l969] 2 Ch 106, 119; Hubbard v Pitt [l976] QB 142, 174-7, 180, 183, 188-9; Bernstein of Leigh (Baron) v Skyviews & General [l978] QB 479, 489.
[41] Stoakes v Brydges [l958] QWN 9, 10; Alma v Nakir [l966] 2 NSWR 396.
[42] Lincoln Hunt Australia v Willesee (1986) 4 NSWLR 457, 460-5; Emcorp v Australian Broadcasting Commission [l981] 2 Qd R 169.
[43] Coles-Smith v Smith [l965] Qd R 494,501-3; Greig v Greig [l966] VR 376, 377.
[44] Lincoln Hunt Australia v Willesee (1986) 4 NSWLR 457,464.
[45] Telecommunications (Interception) Act 1979 (Cth) and other State Acts, such as the Surveillance Devices 1999 (Vic), are also relevant here.
[46] DPP v Withers [l975] AC 842, 862-3,872.
[47] R v Sotheren [2001] NSWSC 204 (16 March 2001) [25] (Dowd J).
[48] See Crimes Act 1900 (NSW) s 547C.
[49] Halliday v Neville (1984) 155 CLR 1, 8; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333.
[50] Campbell v Mirror Group Newspapers [2004] UKHL 22.
[51] [2013] EWHC 32.
[52] Hosking v Runting (2005) 1 NZLR 1.
[53] C v Holland [2012] 3 NZLR 672.
[54] [2004] NZCA 34.
[55] Ibid [80].
[56] [2012] NZHC 2155.
[57] (2012) ONCA 32.
[58] Restatement (Second) of Torts § 652A (1977). See also William Prosser, Privacy, 48 Cal L. Rev. 383, 389 (1960).
[59] US Restatement of the Law Second, Torts s 652B.
[60] M Warby et al, Tugendhat and Christie: The Law of Privacy and The Media (OUP Oxford, 2011) [3.68].
[61] To strike a balance between competing issues such as freedom of expression, freedom of the media, open justice etc. Further, that any such right or rights should be actionable by natural persons.
