When has Your Privacy been Breached? New Rules Bring Greater Protections, With Some Exceptions

A new cause of action for a ‘serious invasion of privacy’ is being introduced through the Federal Privacy and Other Legislation Amendment Bill 2024. This law will allow individuals to protect their private information, and seek damages where their seclusion has been breached. The main defence for this cause of action is proof that the invasion of privacy was done for the public interest.

Although these rules are a step forward for privacy protection, some of the new exceptions may create some confusion down the line. Therefore, it is important to be aware of your new rights before pursuing an invasion of privacy case.

An Invasion of Privacy

For a claim of invasion of privacy to be succesful, plaintiffs will have to prove that there has been a serious physical invasion of their private space, and that there was a reasonable expectation that this privacy would not be breached. Alternatively, a plaintiff may argue that their private information has been misused. In either case, any action will be subject to defences such as consent, lawful authority, and absolute privilege. It must also be shown that the public interest in protecting one’s privacy outweighs the public interest of releasing the information.

‘Public interest’ in this context includes freedom of expression and freedom of the media. Other freedoms that fit this rule are likely to appear as the law develops. If a plaintiff is succesful, they may receive up to the maximum award of $478,500 available for non-economic loss.

Who is Exempt?

Broad exemptions are available to law enforcement bodies, intelligence agencies, and persons under the age of 18. However, there also exists an exemption for journalists in relation to the publication of journalistic material. Although who exactly can be considered a ‘journalist’ has not yet been specifically defined, it has been made to exclude ‘citizen journalists’ (i.e., non-professional journalists). The term also likely extends to those who assist professional journalists.

The non-conditional nature of this exemption is likely to be the greatest source of growing pains for the new rules. This is because even where a plaintiff may reasonably think that a journalist who invaded their privacy should be liable for damages, these rules prevent that from being true. This becomes even more complicated for the average plaintiff since the ‘public interest’ defence should already protect journalists in the appropriate situations.

What to Consider

Before persuing any action under the new rules, it is important to consider if any of the above exemptions may be applicable. The seriousness of the breach, expectation of privacy, and any existing public interest are also factors that should be considered prior to instituting a claim for serious invasion of privacy.

At Elit Lawyers, we have over 60 years’ specialised defamation and media law experience, successfully representing individuals and companies in defamation and reputational matters.

If you have concerns about a potential breach of privacy or need expert advice on defamation, contact us personally.

Danielle Snell, Managing Partner & Co-Founder | [email protected] | 0401 812 885.

Robert McGirr, Partner & Co-Founder | [email protected] | 0413 944 023.

Article co-authored by Kieran Bull, Paralegal at Elit Lawyers.