Businesses beware — individuals can now claim damages for a serious invasion of privacy

In late 2024, the Privacy and Other Legislation Amendment Act 2024 (Cth) introduced a new statutory tort for serious invasion of privacy. This development marks a significant evolution in the Australian privacy law legal landscape, providing individuals with a clear and actionable right to seek redress for serious breaches of their privacy. It reflects growing public concern over personal information misuse and affirms the importance and value placed on privacy protection.

In this article, we explain the elements of the new tort of the serious invasion of privacy, the defences available for defendants and the damages available to complainants.

Tort for the serious invasion of privacy

While there have been previous legal avenues for pursuing damages for breach of privacy, this new tort provides a clear right to action and elements that must be met. It provides an easier process for complainants to pursue damages and puts everyone on notice of the seriousness and public interest in privacy protection.

The elements of a claim of serious invasion of privacy are as follows:

• there has been an invasion of privacy by either intrusion on a complainant’s seclusion (i.e. physical intrusion on their private space) or the misuse of the complainant’s related information;
• the complainant has a reasonable expectation of privacy in all circumstances,
• the invasion of privacy was intentional or reckless, rather than merely negligent;
• the invasion of privacy was serious; and
• the public interest in protecting the complainant’s privacy outweighs any countervailing public interest raised by the defendant (such as freedom of expression or freedom of the media).

What defences exist?

There are defences where:

• the invasion of privacy was required or authorised by, or under, an Australian law or court/tribunal order;
• the complainant, or a person having lawful authority for the complainant, expressly or impliedly consented to the invasion of privacy;
• there was a reasonable belief that the invasion of privacy was necessary to prevent or lessen a serious threat to the life, health or safety of a person;
• the invasion of privacy was incidental to the exercise of a lawful right of defence of persons or property, and the release was proportionate, necessary and reasonable; or
• the defendant invaded the complainant’s privacy by publishing (within the meaning of defamation in Australian law) the complainant’s related information and an Australian law provides a related defence (such as absolute privilege, publication of public documents or a defence of fair report of proceedings of public concern) allowing the publication of defamatory matter that includes an invasion of privacy.

Additionally, outside of these defences, the following parties are exempt from this tort being brought against them:

• journalists;
• states agencies or authorities and their staff;
• law enforcement bodies;
• intelligence agencies; and
• children (under 18).

What damages can you be compensated for?

Damages are available to the complainant. The Court can also order damages for emotional distress, exemplary or punitive damages in exceptional circumstances and non-economic loss. These additional damages cannot exceed $478,550 and the maximum damages available in a defamation proceeding.

Additionally, if a defendant makes an apology to the complainant for the alleged invasion of privacy, this is not necessarily an admission of guilt or relevant to the determination of fault or liability for the tort. An apology may reduce the amount of damages the court awards. The purpose of this is to encourage acknowledgment and goodwill for serious invasions of privacy, and encourage early resolutions of disputes.

Contact us

If you are an Australian business or individual requiring advice on the tort of the serious invasion of privacy, please contact a member of our Privacy & Data Protection team.

For general information about the Privacy Act 1988 (Cth), Privacy and Other Legislation Amendment Act 2024 (Cth) and the Australia Privacy Principles, please see our previous article.