By Katy Barnett

“Many of the problems for privacy which were identified in the 1980s are now enlarged, or altered, by the development of the Internet. The speed, power, accessibility and storage capacity for personal information identifying an individual are now greatly increased. Some of the chief protections for privacy in the past arose from the sheer costs of retrieving personal information; the impermanency of the forms in which that information was stored; and the inconvenience experienced in procuring access (assuming that its existence was known). …These practical safeguards for privacy largely disappear in the digital age.”

Michael Kirby, ‘Privacy in Cyberspace’ (1998) 21 University of New South Wales Law Journal 323

1. The Tyler Clementi case

The tragic case of Tyler Clementi raises questions about online technologies and the reach of privacy law. Briefly, Tyler Clementi was a freshman at Rutgers University in New Jersey. In September this year, his roommate, Dharun Ravi, and another dormmate, Molly Wei, were alleged to have placed a hidden camera in Clementi and Ravi’s room. They then proceeded to film Clementi’s sexual encounter with a man and stream it on the web, and attempted to film and stream another encounter.

Ravi allegedly publicised the streaming on his Twitter account, and invited friends to watch the footage on iChat. Posts by Clementi indicate that he reported Ravi to a dorm adviser when he discovered what had happened. Tragically, on 22 September 2010, Clementi threw himself off George Washington Bridge in an apparent suicide.

Ravi and Wei have been charged with invasion of privacy. However, there are questions as to whether the law is up to dealing with this kind of case, as CNN reports:

New Jersey prosecutors were determining Friday whether additional charges, including bias, may be brought against Ravi and Wei.

”The initial focus of this investigation has been to determine who was responsible for remotely activating the camera in the dormitory room of the student and then transmitting the encounter on the internet,” Middlesex County Prosecutor Bruce J. Kaplan said.

”Now that two individuals have been charged with invasion of privacy, we will be making every effort to assess whether bias played a role in the incident, and, if so, we will bring appropriate charges,” Kaplan said in a statement.

What is clear, though, is that the Rutgers case has reignited debate over cyber incivility and whether tougher privacy laws are needed in a technologically advanced age when anyone can instantly disseminate information about another person with relative ease.

Newark attorney Henry Klingeman, who used to be a federal prosecutor, said that in many cases, it’s unlikely that anyone would serve significant jail time on invasion of privacy charges like Ravi and Wei are facing. He said federal laws are stronger, but most cases are tried in state courts.

Gathering or viewing sexual pictures without consent is a fourth-degree crime, and broadcasting them is a third-degree crime.

“State laws treat it like a nuisance, like graffiti on a street,” Klingeman said.

Bias laws deal with hate-crimes on the basis of race, sexual orientation and the like. The New York Times notes:

Though bias charges are generally hard to prove, lawyers and civil rights experts said that New Jersey has one of the toughest state laws on hate crimes. Its so-called bias intimidation law allows prosecutors to lodge separate charges and seek greater penalties against anyone who commits a crime against someone because of the victim’s sexual orientation. The law does not specify that the crime be violent.

Instead, these lawyers said, it was more likely that prosecutors would pursue bias charges.

Robert A. Mintz, a criminal defense lawyer in Newark and a former federal prosecutor, said, “What prosecutors will be looking at is whether this is a prank that had gone horribly wrong, or whether this was an orchestrated scheme to intimidate the victim based on his sexual orientation.”

Mr. Mintz said that prosecutors would likely review the students’ e-mail and Twitter messages, read any essays or blog entries, and interview friends about what they might have said. “If there’s an accumulation of circumstantial evidence, that can be very powerful,” he said.

If the students are charged and convicted of a hate crime, they could face up to 10 years in prison, instead of 5 years for the privacy charge alone. …

However, I want to focus on Australian law in this post. Specifically, I want to consider how the law would deal with this if a similar event occurred in Australia. There are three things I want to look at: whether the conduct would be tortious under Australian law, whether it would be a crime, and whether there would be any ‘hate crime’ additions to sentence. I will address each of these questions in turn.

2. Australian civil laws on observing, communicating and recording private material

The Commonwealth Privacy Act 1998 (Cth) primarily deals with obligations of privacy over information on the part of government organisations and large corporations, not individuals, and thus it does not cover a situation such as that faced by Clementi.

Similarly, the Victorian Charter of Human Rights and Responsibilities recognises a right to privacy in Article 13, stating that a person has a right not to have their personal privacy, family, home or correspondence unlawfully or arbitrarily interfered with. The Charter also prohibits unlawful attacks on a person’s reputation. However, the Charter only covers the acts of public authorities, not private persons.

Therefore, any tort of invasion of privacy must be established at common law. However, as I have noted in a previous post, Australia’s tort of invasion of privacy is at best, nascent. The High Court in ABC v Lenah Game Meats has made obiter comments concluding that Victoria Park Racing v Taylor does not preclude the development of a tort of invasion of privacy in Australia. Some lower courts have since recognised an action for invasion of privacy.

• In Grosse v Purvis, Senior Judge Skoien of the Queensland District Court used the plaintiff’s criminal action against the defendant for stalking as a peg on which to hang a civil action, stating that since Lenah Game Meats, there was “a civil action for damages based on the actionable right of an individual person to privacy”;
• In Doe v ABC & Ors, Hampel J of the County Court of Victoria found the ABC liable for equitable breach of confidence and for breach of privacy for identifying a victim of a sexual assault in a radio broadcast. (The case settled before an appeal was delivered);
• In 2008, the ALRC released a report on privacy law in which it recommended enacting laws to protect people from wrongful abuses of privacy;
• Also in 2008, in Giller v Procopets, the Victorian Court of Appeal applied breach of confidence law to a situation which bore some similarity to the present one. Neave JA (with whom Maxwell P agreed) of the Victorian Court of Appeal canvassed the possibility of a tort of breach of privacy, but did not find it necessary to decide the issue. Breach of confidence was sufficient to protect the plaintiff’s interest in that case; and
• In August 2010, the Victorian Law Reform Commission released the Surveillance in Public Places: Final Report in which it suggested that there should be two new statutory torts, one which deals with misuse of private information, and one which deals with intrusion upon seclusion (See Recommendation 22). Click here for summary.

Possibly someone in Clementi’s position could establish a cause of action based on breach of confidence, as the Clementi case bears some similarity to Giller v Procopets, where the defendant showed videos of himself and the plaintiff engaging in sexual intercourse to the plaintiff’s friends and family, and attempted to show her employer (a more detailed post on the case here).

A majority of the Victorian Court of Appeal found that he was liable for breach of confidence, and that she was entitled to aggravated damages for mental distress suffered as a result of that breach. Ashley JA dissented on a variety of issues, finding that while there was a breach of confidence, mental distress falling short of psychiatric injury was not compensible.

Giller v Procopets follows in the footsteps of English case law, which has increasingly been developing to protect privacy interests because of the operation of the European Convention on Human Rights, particularly Article 8. The disclosure of the video to others would trigger the action in breach of confidence. But it is arguable, perhaps, that the filming itself should give rise to liability for breach of privacy, regardless of whether there was disclosure.

There seems no doubt that the conduct of Ravi and Wei was a wrongful invasion of Clementi’s privacy. Indeed, applying Grosse v Purvis, an Australian judge could hang any civil action on a probable breach of various criminal provisions. The only question is whether such a tort is well-enough established to cover this kind of situation. It is precisely a case such as Clementi’s which shows the need for a tort of invasion of privacy. However, presently there is a gap in the law regarding cases where individuals breach the privacy of other individuals, and misuse private information.

The VLRC’s report on surveillance is particularly pertinent. In paragraphs 7.130 – 7.134, the VLRC says:

The second cause of action should deal with what is often referred to as intrusion upon seclusion or spatial privacy. This cause of action is primarily concerned with the use of a surveillance device, often surreptitiously, to view parts of a person not open to public gaze or to monitor conduct that a person believes to be private. Although this cause of action has not yet been developed by the courts in New Zealand and the UK, it may emerge in time because there can be serious invasions of privacy without any publication of personal information.

The act of intruding upon a person’s seclusion or invading their private space is in itself objectionable conduct. Whether a person had an entitlement to seclusion is best determined by the application of an objective test rather than by relying solely on the views of the person to whom the information relates. This approach means that the tribunal should consider values and attitudes widely held throughout the community before deciding whether the plaintiff had a reasonable expectation of privacy. Examples of the sort of things about which a person could have reasonable expectations of privacy are intimate parts of their body that are clothed and conversations that appear to be taking place well out of the earshot of others.

The gist of this cause of action is the intrusion upon a person’s seclusion or private space. Whether the intrusion is unacceptable is best determined by the application of an objective test rather than by relying solely upon the views of the person seeking seclusion. Again, this approach means that the tribunal should consider values and attitudes widely held throughout the community before deciding whether the conduct was highly offensive. Examples of the sort of behaviour that could fall within this cause of action because the intrusion upon seclusion was highly offensive to a reasonable person include engaging in ‘upskirting’ on public transport or covertly listening to a conversation between people sitting on an isolated park bench.

Both examples in the previous paragraph involve criminal conduct. Although the wrongdoer may be prosecuted for a criminal offence, there is no civil cause of action open to a person harmed by conduct of this nature. An action for breach of statutory duty is not available in these cases because of the limited reach of that cause of action.

The VLRC also recommends that Victoria adopt a tort of misuse of private information. The VLRC’s suggestions should be acted upon precisely so that a Clementi-like situation would give rise to recourse in the civil law if it occurred here.

The US already has a tort specifically dealing with intrusion upon seclusion, as outlined in §652B, Restatement (Second) of the Law of Torts (1977). Similarly, it also has a tort of publicity given to private life, as outlined in §652D of the same Restatement. Presumably Ravi and Wei are likely to have breached both of these torts.

In addition to a tort of invasion of privacy, the US also has a well-established tort of intentional infliction of mental suffering. In Giller v Procopets, Neave JA also thought that such a tort was possible, but did not find it necessary to decide on the facts of the case before her. Maxwell P thought that there was nothing to preclude Australian law developing a tort of intentional infliction of mental suffering. Maxwell P noted that there is already a tort of intentional infliction of injury in Wilkinson v Downton, and thought that it was appropriate to extend that tort to mental harm. Ashley JA found that the plaintiff would not have been able to recover in tort for something less than recognised psychiatric injury. So there is a possibility that someone who deliberately films an intimate act with an intent to embarrass or humiliate a roommate may be sued for intentional infliction of mental distress if US law was to be adopted in Australia, but at the moment, it remains a mere possibility.

3. Australian criminal law on observing, communicating and recording private material

In most Australian states, it is an offence to take photos of the genital and anal region in circumstances where the person who is being photographed could not reasonably expect to have been photographed. I will use Victoria as my example. Section 41A(1) of the Summary Offences Act 1966 (Vic) provides:

A person must not, with the aid of a device, intentionally observe another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be observed.
Penalty: 3 months imprisonment.

Section 41B(1) covers visual capture of images of intimate images:

A person must not intentionally visually capture another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured.
Penalty: 2 years imprisonment.

Finally, s 41C of the same Act provides that it is an offence to distribute such images:

A person who visually captures or has visually captured an image of another person’s genital or anal region (whether or not in contravention of section 41B) must not intentionally distribute that image.
Penalty: 2 years imprisonment.

Each section has a note which states ‘[t]he reasonable expectation test is an objective one-what would a reasonable person in the position of the person being observed have expected. Section 41D sets out the defences to the offences under ss 41B and 41C.

It is suggested that conduct such as Ravi and Wei’s would likely form an offence under ss 41A(1), 41B(1) and 41C, as they observed images of intimate moments between Clementi and another man with the aid of a device, they captured those images and they intentionally distributed it.

Conduct such as that undertaken by Ravi and Wei would also be a breach of  s 7(1) of the Surveillance Devices Act 1999 (Vic), which provides that person must not “knowingly install, use or maintain an optical surveillance device to record visually or observe a private activity to which the person is not a party, without the express or implied consent of each party to the activity.” Section 11(1) provides that a person must not knowingly communicate or publish a record of a private conversation or private activity that has been made as a direct or indirect result of the use of a surveillance device. Each of these offences may be penalised by, at maximum, a 2 year imprisonment sentence, a fine, or both.

The Racial and Religious Tolerance Act 2001 (Vic) also criminalises certain ‘hate crimes’. However, as the name of the Act suggests, it deals with only racial and religious intolerance. Thus, s 24 establishes that serious racial vilification is an offence, and s 25 establishes serious religious vilification is an offence. Both are punishable with imprisonment for 6 months, a fine or both. Clearly, conduct such as that which Clementi suffered would not be covered by either of these provisions. It is still unclear why Ravi and Wei allegedly undertook the actions that they did, but if it was a hate-crime, it was likely to be so on the basis of sexual orientation, not race or religion. In any case, vilification offences are never prosecuted in Australia because they occupy an uncomfortable middle ground between anti-discrimination law and criminal law.

Then the question is whether the potential sanctions imposed by the criminal law would be enough to punish conduct such as Ravi and Wei’s which resulted in a person committing suicide, and potentially constituted a hate-crime.

4. Australian hate-crime additions?

As noted above, if Ravi and Wei’s conduct is proven to be a hate-crime, then under New Jersey law this may result in an increased jail sentence. In some Australian states, there are provisions which may result in harsher penalties for hate crimes. The regimes vary from State to State (for a comprehensive survey, see Gail Mason, ‘Hate crime laws in Australia: Are they achieving their goals?‘ Paper presented at Sentencing Conference 2010, Canberra, 6 – 7 February 2010).

Victorian law now gives discretion to judges to deal with hate-crimes in sentencing (as does s 21A(2)(h) of the Crimes (Sentencing Procedure) Act (NSW) and s 6A of the Sentencing Act (NT)). Section 5(2) of the Sentencing Act 1991 (Vic) has recently been amended to insert sub-section (daaa), which states that a judge must have regard to “whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated.” As Mason notes at 6:

The power conferred on the sentencing court is discretionary and although such an aggravating factor must be taken into account, the court is not required to increase the sentence if such a motive is established…

This is in contrast with penalty enhancement regimes such as those in the US which require higher sentences if certain motives are established. Western Australia is the only Australian State to have enacted US-style penalty enhancement provisions in relation to offences of assault, serious bodily harm and the like committed “in circumstances of racial aggravation” (see eg ss 313, 317, 317A, 338B and 444, Criminal Code Act 1914 (WA). This would not cover hate-crimes on the basis of sexual orientation.

5. Conclusion

The Australian law which would deal with a Clementi-like situation is presently uncertain in the case of tort law. As the VLRC has noted, there is a gap in the law where private individuals are concerned, and the legislation is patchy, applying to some entities more than others. The criminal law provisions are scattered. There may be a chance that the sentence would be increased if the crime was hate based, but this is at the discretion of the judge. I very much hope that a situation like this does not happen in Australia, but I fear that with modern technology such invasions of privacy will only increase. The law needs to move swiftly to play catch up.

Katy Barnett is a Lecturer and PhD candidate at the University of Melbourne Law School. She also blogs at skepticlawyer.com.au

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