The new tort of ‘Serious Invasion of Privacy’ comes into force today

Background

A new cause of action for a serious invasion of privacy will be available to plaintiffs starting today, 10 June 2025. The long-awaited tort aims to protect a plaintiff either where their seclusion (physical privacy) has been intruded upon, or where personal information relating to them has been misused.

The new tort is provided by the Privacy and Other Legislation Amendment Bill 2024 (Cth) which inserts Schedule 2 into the Privacy Act 1988 (Cth) (the Act). Schedule 2 is intended to operate independently and outside the scope of the rest of the Act.

These changes come following years of advocacy from the Australian Law Reform Commission for a statutory cause of action which fills the gap for serious invasions of a plaintiff’s privacy, which have become an increasingly common occurrence in the digital age.[1]

Elements of the Tort

Overview

The elements for an invasion of privacy under the new tort are as follows:

  1. A defendant will be taken to have invaded a plaintiff’s privacy where there is:
  2. An intrusion by the defendant into the seclusion of the plaintiff; or
  3. A misuse of the plaintiff’s personal information by the defendant; and
  4. a person in the position of the plaintiff would have a reasonable expectation of privacy; and
  5. the invasion of privacy was intentional or reckless; and
  6. the invasion of privacy was ‘serious’; and
  7. the public interest in the plaintiff’s privacy outweighs any opposing public interest.[2]

Breakdown of Elements

Intruding upon the seclusion of an individual is taken to include physical intrusions of a person’s space; or the unauthorised watching, listening, or recording of a person’s private activities or affairs.[3]

Misusing information broadly relates to the collection, use, or disclosure of information relevant to an individual.[4]

A reasonable expectation of privacy encompasses various considerations by the Court, including but not limited to:

  • The technology used in the invasion of privacy;
  • The purpose of the invasion of privacy;
  • The attributes of the plaintiff (e.g., age, background, or occupation);
  • The conduct of the plaintiff, and whether they “manifested” the desire for privacy;
  • Where the intrusion occurred; and
  • The nature of the information, how the information was held, and whether the information was already within the public domain.[5]

Reckless behaviour is an action taken by a person where they are aware that a substantial risk exists or will exist in circumstances where the taking of such risk is unjustifiable. Therefore, mere negligence will not suffice.

In finding a ‘serious’ invasion of privacy, the Court can consider:

  • The degree of any offence, distress or harm to the dignity of the plaintiff that was likely to occur;
  • Whether the defendant knew that the invasion was likely to offend, distress, or harm the plaintiff; or
  • If the invasion of privacy was intentional and/or motivated by malice.[6]

Opposing public interests to be considered by the Court include:

  • Freedom of expression;
  • Freedom of the media;
  • The proper administration of government;
  • Open justice;
  • Public health and safety;
  • National security; and
  • The prevention of crime and fraud.

Defences & Exemptions

The Act also introduces a variety of defences and exemptions available for a cause of action for invasion of privacy.

The available defences include:

  • The invasion of privacy was required by law;
  • The plaintiff or a person with their authority consented to the invasion of privacy;
  • The invasion of privacy was necessary for the safety of a person; or
  • The invasion of privacy was incidental in exercising the right to defend a person or property.[7]

Key persons and agencies will also be exempt from this new tort. This includes government agencies (if acting in good faith), law enforcement bodies, intelligence agencies, and people under the age of 18.[8]

There also exists a broad exemption for journalists that will provide protection where the invasion of privacy is done for the collection, preparation or publication of journalistic material.[9]

Intersection of Defamation

Alongside the standard defences, the Act also provides additional defences that apply to serious invasions of a plaintiff’s privacy in the form of a publication – which have their genesis in defamation law.

These defences include absolute privilege, the publication of public documents, and the fair reporting of proceedings of public concern.[10]

Although these defences overlap with those used in defamation law, there should not be any contradictions since the new tort is concerned with breaches of a plaintiff’s personal privacy, rather than their reputation.

Other Key Considerations

Limitation Period

A plaintiff looking to commence proceedings for an invasion of privacy must do so within one year of becoming aware of the invasion of privacy, or within three years of the date it occurred.[11]

Alternatively, if the Court is satisfied that it was unreasonable for the plaintiff to commence proceedings within the timeframe, then the Court can order that the plaintiff may commence proceedings outside the standard timeframe.[12]

Remedies

Whilst serious harm is not required to establish a breach of the new tort (a requirement in defamation actions) – if successful in a cause of action pursuant to the new tort, a plaintiff will be entitled to a remedy relative to the damage that was caused to them. This can include injunctive relief, damages, an order requiring that any private material be destroyed, or an account of profits.[13]

Although the Court cannot award aggravated damages, an order can include awards for emotional distress caused to the plaintiff as a result of the invasion of privacy. The Court can also award punitive or exemplary damages in exceptional circumstances.

Regardless, the sum of damages for non-economic loss combined with any punitive or exemplary damages cannot exceed $478,550[14] being the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings.

[1] Australian Law Reform Commission, ‘Serious Invasions of Privacy in the Digital Era’ (Final Report, June 2014).

[2] Privacy Act 1988 (Cth) Sch 2 (the Act).

[3] Section 6 of the Act.

[4] Ibid.

[5] Section 7(5) of the Act.

[6] Section 7(6) of the Act.

[7] Section 8(1) of the Act.

[8] Sections 16-18 of the Act.

[9] Section 15 of the Act.

[10] Section 8(3) of the Act.

[11] Section 14(1) of the Act.

[12] Section 14(2) of the Act.

[13] Sections 9 & 11-12 of the Act.

[14] Section 11(5) of the Act.

 

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

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

Aggie Vlahos Partner | [email protected] | 0405 995 057.

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Robert McGirr

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Thank you to Danielle and Mark and the Elit team for all their hard work in acting for myself and my family against a large international insurer following a fire sustained at our home. We were forced to issue legal proceedings against the insurer for a number of reasons including disagreement about the amount of money that was required to be paid out under the policy to reinstate our home. I want to express our deepest heartfelt gratitude and appreciation for all Elit did for our family throughout this matter.
The work of Danielle and Mark was professional, consistent and to the highest standard throughout this process. I was so impressed by each of the team. It wasn’t just their exceptional professional work that left the impression, but more importantly, their interactions as good, decent, kind individuals. Thank you Elit for captaining this litigation ship throughout the tiresome journey! We really appreciate everything you have done for us. I hope and pray that each one of you has a share in some of the comfort you have provided my family in your own lives.

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"Being subject to malicious false statements was very stressful, as I have always conducted myself with professionalism and integrity.  As a result of the action taken by Robert McGirr & Elit Lawyers, the false statements were retracted, I received a formal apology and was paid my legal costs. "

Defamation

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I was engaged to appear on behalf of a resident at an aged care home in a proceeding before the Tasmanian Civil and Administrative Tribunal (TASCAT). A false and defamatory email was sent by a senior executive of the home about my conduct at the hearing to a number of third parties.

The false statements contained in that email were serious and damaging to my reputation, and included amongst other things, an imputation of criminality, which if proven to be true, could have resulted in a term of imprisonment. Being subject to malicious false statements was very stressful, as I have always conducted myself with professionalism and integrity. 

As a result of the action taken by Robert McGirr and Elit Lawyers, the false statements were retracted, I received a formal apology and was paid my legal costs. I could not have achieved this outcome without the assistance of Robert. I felt informed and comforted throughout the process and am very grateful for the early result that was achieved. 

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"I was devastated when I learnt of a very serious defamatory publication made against me. I was so grateful to Danielle and the legal team who were able to obtain a pseudonym order in my favour so that I was able to advance defamation proceedings with anonymity."

Defamation

Plaintiff

I was devastated when I learnt of a very serious defamatory publication made against me.

I was concerned that bringing a Court proceeding would lead to widespread media reporting which would in turn repeat the allegations made against me and cause even more harm to my reputation because let’s face it – mud sticks.

I was so grateful to Danielle and the legal team who were able to obtain a pseudonym order in my favour so that I was able to advance defamation proceedings against the publishers with anonymity and be comforted that the defamatory content linked to my name would not be further spread.

I felt vindicated at the end of the matter and will always look back on the experience as a difficult one but knowing that issuing the court proceedings was what I had to do in order to achieve redress and restore my reputation.

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"When we were targeted by a vexatious and unfounded online attack, I turned to Robert, Danielle, and Elit for advice. As I am a lawyer myself, Elit’s ability to zone in so quickly on what was best for us really impressed me. "

Defamation

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As a lawyer and business owner, I take our professional reputation seriously.

When we were targeted by a vexatious and unfounded online attack, I turned to Robert, Danielle, and Elit for advice. Their calm, clear, and strategic guidance was exactly what we needed. They quickly understood the key issues and provided practical options that prioritised our values and professional standing.

I was impressed with their ability to get across the key issues and provide real life practical advice during this critical time which really centred around us and what was best for our business.

As I am a lawyer myself, Elit’s ability to zone in so quickly on what was best for us really impressed me.

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"My business was sued for defamation. The Eit team were able to pinpoint the weaknesses in the other side’s case and were able to resolve the proceeding on very favourable terms for us."

CEO

Medical Industry

My business was sued for defamation and my insurance company appointed Aggie, Danielle, Robert and the Elit team to act in my defence of the proceeding.

I was astounded by the fact that the Eit team were able to pinpoint the weaknesses in the other side’s case and after bringing an interlocutory application on my behalf, they were able to resolve the proceeding on very favourable terms for us.

I felt informed and comforted throughout the process and am very grateful for the early result that was achieved.

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"I felt comforted and informed throughout the legal process and was happy with the early resolution of the case which achieved my ultimate objectives."

Director

ASX Listed Company

Danielle and team acted on behalf of myself and my fellow directors of an ASX listed company in the Supreme Court of Western Australia involving repeated attacks and defamatory content being posted about us on a forum website. The third party website operator was also joined to the proceeding.

Given the personal attacks made against me and my fellow directors, it was a difficult situation over an extended period and I felt comforted and informed throughout the legal process and was happy with the early resolution of the case which achieved my ultimate objectives to have the content removed and undertakings that no future defamatory content would be published by the person involved.

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