A Common Law Tort of Interference with Privacy for Australia: Revitalising ABC v Lenah Game Meats

When the High Court decided Australian Broadcasting Corporation v Lenah Meats Pty Ltd (Lenah) in 2001, it left the door open for a common law tort of interference with privacy. However, privacy claims brought since Lenah have seen courts interpret that judgment restrictively, some holding that tortious remedies are unavailable. The importance of the High Courts decision for the development of privacy protection through tort law should, therefore, be reaffirmed. In addition to the confirmation in Lenah that a tort of interference with privacy is recognisable in Australian common law, there are good reasons why the courts should now recognise this tort. There is a sufficiently strong normative demand that the common law intervene to protect individual privacy, and tort law is the most appropriate mechanism. When courts are presented with privacy cases reflecting that normative demand and fitting within tort laws remedial capacity, they should recognise and apply a tort of interference with privacy.