The High Court's spotlight on a tort of privacy in Smethurst v Commissioner of Police

What you need to know

• On 15 April 2020, the High Court delivered judgment in Smethurst v Commissioner of Police [2020] HCA 14,¹ in which the Court found unanimously that a search warrant relied on by the Australian Federal Police (AFP) in carrying out a raid on journalist Annika Smethurst's home was invalid.
• The Court refused (4:3) to grant either an injunction requiring the destruction or delivery up of the information taken from Ms Smethurst's mobile phone during the search, or an injunction restraining the AFP from making that information available to the prosecuting authority.
• In considering the basis for granting an injunction, the Court demonstrated a willingness to consider the question of whether Australian courts should recognise a tort of privacy as a basis for relief for individuals. In doing so, the High Court has kept the door ajar for future plaintiffs to potentially rely upon such a tort to prevent the retention and use of unlawfully obtained material that is considered "private".
• The High Court's non-binding commentary on this issue suggests that any development of a tort of privacy in the near future is likely to be in the form of an extension of the existing protection afforded to confidential information, rather than a standalone wrong expressed at a high level of generality.

Background

On 29 April 2018, The Sunday Telegraph published a series of articles in its newspaper and on its website, authored by journalist Annika Smethurst. The articles reported on proposed amendments to existing legislation, which would extend the powers of the Australian Signals Directorate to enable it to covertly access data relating to foreigners and Australian citizens.

On 4 June 2019, the AFP executed a search warrant at Ms Smethurst's residence. The basis for the raid included alleged offences by Ms Smethurst in publishing the above articles, which were alleged to contain classified information "leaked" from government sources.

During the search, AFP officers required Ms Smethurst to provide the passcode to her personal mobile. The data from the mobile phone was copied onto the AFP's forensic computer and documents that were identified by the AFP officers as falling within the scope of the warrant were copied onto a USB drive, which the officers took with them when they left the property.

Following these events, Ms Smethurst (joined by her employer, Nationwide News Pty Limited) commenced proceedings in the High Court challenging the validity of the search warrant. 

The High Court's consideration of whether an injunction should be granted

The High Court unanimously found that the search warrant was invalid on the basis that it "substantially misstate[d]" a criminal offence found in s 79(3) of the Crimes Act 1914 (Cth) (relating to official secrets). It followed that entry into Ms Smethurst's home by AFP officers was unlawful.

Ms Smethurst sought relief in the form of either a mandatory injunction requiring the destruction or delivery up of the information on the USB drive or an injunction restraining the AFP from making the information available to the prosecuting authority.

She contended that an injunction should be granted to reverse or protect her from the effects of the trespass committed as a result of the search warrant being invalid. Those effects were that the information may be used to further the investigation as to whether offences against s 79(3) of the Crimes Act have been committed and, if charges are laid, as evidence of the commission of those offences.

The plurality of Kiefel CJ, Bell and Keane JJ recognised three bases for an injunction to issue:

• First, to protect a private law legal or equitable right, for example a right of ownership, Ms Smethurst had in the things which had been seized and now held by the AFP. The plurality held there was no "property" in the information that the AFP recorded from Ms Smethurst's phone, so there was no present legal or equitable property right in the information and therefore no basis for an injunction. The outcome would be different if the AFP had taken hard copy documents from Ms Smethurst's possession, since there is "property" in such documents, which would have been interfered with until the documents were returned to her possession. Consideration of this issue led the plurality to explore the possibility of recognising a tort of privacy (as discussed further below).
• Second, to enforce a public right created by statute. The plurality found there was no implied prohibition on the AFP using illegally obtained information  under the legislation governing the issue of the warrants and conferring powers and functions on the AFP.
• Third, to remedy the consequence of a past but spent tort (in this case the initial trespass to land and conversion of the mobile phone during the unlawful raid). The plurality said that this was possible where the effect of the ongoing tort was "serious" but that the circumstances of this case did not satisfy this threshold.

The plurality further noted that while damages may not have been an adequate remedy, that fact alone was not a sufficient basis to grant an injunction and it considered that strong discretionary considerations would deny a grant of injunction, including because to do so may prevent the disclosure of criminality which would be in the public interest to reveal.

Nettle J agreed with the plurality that an injunction should not be granted, noting that his finding on whether there was a jurisdictional basis to issue the injunction may have been different if the search was not a bona fide attempt to comply with the Crimes Act.

The effect of the majority's decision was to leave it to the trial judge in any criminal case to determine whether the evidence should be excluded because it was illegally obtained.

Gageler, Gordon and Edelman JJ each found that a mandatory injunction should be granted, primarily on the basis that Ms Smethurst was not required to demonstrate some "recognisable legal right" to obtain an injunction. In particular:

• Gageler J found the Court had discretion under s 75(v) of the Constitution to restore Ms Smethurst to the position she would have been in had her common law rights to control access to her personal property not been invaded;
• Gordon J similarly found that an injunction goes to undo the wrong that has been done and that the excess of power in this case founded the grant of injunction under s 75(v) not to use what has been taken; and
• Edelman J accepted Ms Smethurst's argument that an injunction was required to reverse the consequential effect, on her privacy, of the tort of trespass.

The AFP announced on 27 May 2020 that it would not be pursuing charges against Ms Smethurst or anyone else involved in her articles, citing insufficient evidence.

The High Court has kept the door ajar for future plaintiffs

In considering whether Ms Smethurst had a legal basis for her claim, some members of the Court turned their attention to whether a plaintiff in Ms Smethurst's position could rely on a right to privacy to establish that the retention of her information by the AFP was an ongoing tort, so as to form a basis for injunctive relief.

The plaintiffs did not contend the High Court should recognise a tort of privacy as a basis for relief in this case. As such, the Court was not asked to continue the debate, left open by the decision in ABC v Lenah Game Meats,² as to whether such a tort should be recognised by Australian courts. The Court did, however, offer some non-binding commentary on the issue, which provides insight into how it may be dealt with in future cases.

The plurality indicated that the question of whether a tort of privacy to protect individuals should exist at common law remains a live issue, remarking that "without determining whether the common law of tort may recognise a tort of privacy, it cannot be said that there is no prospect of a remedy, at least for [Ms Smethurst]".

Their Honours cited Lenah Game Meats, in which the High Court held that a corporation does not have an actionable right to privacy, but that the debate about the tort should not be regarded as foreclosed for individuals. In considering the potential expansion of law in this area, Gummow and Hayne JJ suggested that rather than searching for a wrong, such as an intrusion of privacy, which would be expressed at a high level of generality, the better course would be to "look to the development and adaptation of recognised forms of action to meet new situations and circumstances".

In submissions, counsel for Ms Smethurst touched on the development of the rights of individuals in this manner, relying upon the judgment in Lincoln Hunt v Willesee,³ in which Young J noted that the courts have power to grant an injunction "if the circumstances are such to make publication [of material obtained through a trespass] unconscionable". The plurality in Smethurst found it "noteworthy" that in Lenah Game Meats, Gleeson CJ considered the question of whether publication was unconscionable in the circumstances could be answered in the affirmative "provided the activities filmed were private".

Edelman J expanded upon the consideration of Lincoln Hunt, indicating that the underlying reasoning in that case was based upon an extension of the protection of confidential information to also protect private information. His Honour noted that counsel for Ms Smethurst appeared to build upon such reasoning when describing the execution of the warrant as involving "sift[ing] through [Ms Smethurst's] private materials". He noted that the question of whether the law concerning confidential information should be extended to encompass the "intrusion" into a plaintiff's private affairs remains an issue requiring further consideration.

A tort of privacy as an extension of the protection afforded to confidential information?

The judges' commentary in Smethurst makes it clear that the High Court has a degree of interest in furthering the debate on whether Australian courts should recognise a tort of privacy as a basis for relief for individuals. Accordingly, the door remains ajar for future individual plaintiffs to argue that the existing categories of protection should be extended to protect the disclosure of private information, with the High Court's comments suggesting this is most likely to evolve in the form of an extension of the existing protection afforded to confidential information.

The High Court's comments in Smethurst bear similarity to the remarks made recently in Glencore International AG v Commissioner of Taxation [2019] HCA 26 (Glencore), where the Court suggested that, in order to restrain the misuse of confidential information that has already become part of the public domain, there may be scope to develop the equitable doctrine of breach of confidence to provide plaintiffs with a cause of action for an unjustified invasion of privacy.

The High Court's renewed interest in a common law tort of privacy coincides with the recent release of the ACCC's report on its Digital Platforms Inquiry in September 2019. That report proposes a cause of action to provide protection for individuals against serious invasions of privacy that may not be captured within the scope of the Privacy Act 1988 (Cth), in order to address the limited recourse currently available to individuals against digital platforms or other firms to seek compensation for mishandling of their user data or personal information. The ACCC proposes that this new cause of action be balanced against other public interests, such as freedom of expression and freedom of the media.

Media organisations will be keen to keep a close eye on these ongoing developments in the law of privacy, particularly in light of the development of case law in the United Kingdom, where actions have been brought against the media for breach of privacy.

The UK tort of privacy arises in the context of the Human Rights Act 1998 (UK), which incorporates into UK law the rights set out in the European Convention on Human Rights (ECHR). Applying the principles set out in the ECHR the majority of the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457 held that the claimant, model Naomi Campbell, had a cause of action for the invasion of her privacy.  Developed from the existing law of confidence, they UK tort requires that the following questions be answered:

1. Did the claimant have a legitimate expectation of privacy in relation to the information that was published?
2. If so, was the respondent justified for breaching that legitimate expectation by virtue of its right to freedom of expression?

Recent case law suggests that UK Courts are applying this protection broadly. For example, in the 2018 judgment Richard v British Broadcasting Corporation [2018] EWHC 1837 (BBC), Mann J held that the plaintiff, Sir Cliff Richard, had a legitimate expectation of privacy in relation to the fact that he was being investigated in relation to an historic sex offence and the fact that his home had been searched by police in connection with that investigation. It was subsequently announced that there would be no charges brought against Sir Cliff relating to the investigation. 

His Honour found that the BBC was not justified in breaching that legitimate expectation of privacy by broadcasting stories which identified that Sir Cliff was the subject of a criminal investigation, awarding him substantial damages.

In coming to this view, Mann J found that as a general principle, the subject of a criminal investigation has a reasonable expectation of privacy in relation to the investigation. Whether a breach of that expectation by media publication is justified will depend on the circumstances including, for example, the extent to which the publication contributes to a debate of general interest, how well-known the person concerned is and their prior conduct, the method of obtaining the information and its veracity, the content, form and consequences of the publication, and the severity of the sanction which can be imposed.

As the decision in Richard v BBC is based on the UK's tort of privacy, which arises in the context of the Human Rights Act 1998 (UK) and the ECHR, it is unlikely to provide a direct template for the development of the law in Australia.  As the UK's current legislative framework in this area is based on the ECHR, there is also a question as to whether the framework will be subject to reform following Brexit.

The applicability of similar principles in Australian law will largely depend on the precise formulation of any tort in Australia and how the tort is subsequently interpreted by the Courts. From the media's perspective, this underlines the importance of ensuring that any right to privacy recognised under Australian law is adequately balanced against the public interest in maintaining freedom of the press, so that the tort does not have a chilling effect on the reporting of issues in the public interest.

Authors: Robert Todd, Partner; Jason Strachan, Counsel; Nick Perkins, Senior Associate; and Stephen Klimis, Lawyer.

End notes

_{1 Ashurst acted for Ms Smethurst and Nationwide News Pty Limited in the proceeding. The views expressed in this article are our own.}

_{2 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199}

_{3 Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457}