Prof. Normann WITZLEB has published a journal article entitled “The Case for Negligence as the Mental Element of an Australian Statutory Privacy Tort” in the Tort Law Review.
Abstract: This article explores the appropriate mental element of a future statutory Australian privacy tort. While the Attorney-General’s Department proposed in its recent Privacy Act Review a new statutory tort that should be confined to intentional and reckless invasions of privacy, this article advocates a fault standard that includes negligence. The more restrictive position currently favoured by the Australian Government sets the bar too high and would exclude some deserving claimants from redress. The article argues that adopting negligence as the requisite mental element would better align the privacy tort with other wrongs that protect dignitary interests and with the Privacy Act 1998 (Cth). In support of its position, the article also engages in a detailed comparative analysis of the position in other common law jurisdictions.