Go on, admit it – we all love a scandal.

Whether it’s Miley Cyrus, one of those ever-present Kardashians, or yet another rugby league player (it’s great to bash rugby league from an AFL state, isn’t it?), we get caught up in the latest photos leaked online, or in some cases deliberately tweeted by the celebrity in question, the headlines, the chatter and the gossip.

But what happens if you’re a South Australian who’s not interested in having private photos or video of yourself splashed all over the internet?  What if material has been recorded about you – personal, private, even intimate material – either with or without your permission, but then shared or published for the world to see without your permission?

So far in South Australia, as in other states, the answer has been: too bad.  There’s not much you can do about it.

But what if the person who’s publishing this material is an ex-partner and it’s their way of getting back at you?  Or if they’re using it to perpetuate a form of domestic violence against you – but they’re now doing it from afar and, technically, within the bounds of the law?

These are just some of the real-life examples that have been considered by the South Australian Law Reform Institute, which has now released its report, A Statutory Tort of Invasion of Privacy.

Based at the University of Adelaide, the institute is an independent body that can be asked to investigate areas of law reform for South Australia, or to act of its own accord to determine an important area of reform.  We thought the issue of privacy was well overdue to be revisited for a number of reasons, not least of which is the fact that today’s technology puts incredible power in the hands of private individuals, with an enormous and ever-threatening potential for serious breaches of privacy.

Our final report recommends the establishment in South Australia of a statutory tort (civil law) for serious invasion of privacy, having concluded that the current laws protecting personal privacy are inadequate. In reality, privacy laws right across Australia are an incomplete mishmash of poorly constructed, poorly considered laws, many of which deal with criminal matters but most of which don’t allow for the kinds of civil remedies our society really needs.

There is currently no right to privacy recognised in Australian law and there is no cause of action available in Australia which offers a direct and complete remedy to an individual for breach of personal privacy by another.

The report makes recommendations as to how the proposed law would work.  One of the biggest issues we’ve grappled with is to strike an appropriate balance between competing public interests.  The intention behind our reforms is not to have a detrimental effect, as is sometimes feared, on important freedoms such as freedom of expression or freedom of the press.  The model we propose will cement and respect those freedoms while providing practical and effective remedies for South Australians who are aggrieved by a serious invasion or threatened serious invasion of their personal privacy.

The debate has moved well beyond the age-old discussion about freedom of the press; the media technology available to anyone today puts private individuals in a position of enormous power.  Effectively, anyone can become a journalist of sorts, but private individuals are not bound by the same codes of conduct under which professional media operate.

The consequences of serious invasions of privacy can be devastating.  So we need to consider: what is in the “public interest” versus what is the public merely interested in?

Under the laws proposed in our report, a test for matters that are in the public interest would be a crucial part of any privacy case brought before the courts.  For example, footage secretly obtained for a television program that exposes animal cruelty will arguably be in the public interest, because animal welfare is an important issue for our community. But intimate footage leaked to a revenge porn website, or a man who flies his remote-controlled video camera drone over the back fence to film the neighbour’s wife sunbathing… is this in the public interest?  Or are these blatant and potentially serious breaches of personal privacy?

There is currently no right to privacy recognised in Australian law and there is no cause of action available in Australia which offers a direct and complete remedy to an individual for breach of personal privacy by another.

Despite multiple reform recommendations over many decades, no legislature in Australia, including South Australia, has succeeded in establishing a statutory cause of action for invasion of personal privacy.  As early as 1973, the former South Australian Law Reform Committee recommended the creation of a general right of privacy. Bills attempting to create a cause of action were introduced into the South Australian Parliament in 1974 and again in 1991 and were subject to lengthy debate and were ultimately defeated.

Such a law is unlikely to come from either the Federal Government or the courts. But the impetus for reform is now even stronger than it was in the 1990s, and not just in South Australia.  As recently as March 3 this year, the Standing Committee on Law and Justice of the NSW Parliament also recommended that a statutory cause of action be introduced in NSW that would enable people who have suffered a serious invasion of privacy to commence civil action. The NSW committee also found that the existing statutory and common law framework does not provide adequate remedies for serious invasions of privacy, particularly to people who are victims of the distribution (or threatened distribution) of intimate images without the subject’s consent.

Our institute believes such reform in the 21st century is both necessary and overdue. So whether we all enjoy a scandal or not, it’s time for us to ask: what’s in the public interest?

The institute’s report on privacy is now with the South Australian Government for its consideration.

To obtain a copy of the report either visit the Institute’s website or email: [email protected]

Professor John Williams is Director of the South Australian Law Reform Institute at the University of Adelaide.