Snapshot
- The new statutory tort for serious invasion of privacy will come into force in a matter of months and will generate a new breed of civil suits in Australia.
- As foreshadowed in the Explanatory Memorandum, courts will look to other common law jurisdictions’ case law on similar causes of action to guide their application of the new tort.
- This article, the first of a two-part series, unpacks key cases from the UK that are likely to heavily influence how the tort’s many elements are characterised in Australia.
Australia’s new privacy tort is in force from 10 June 2025. It is contained within Schedule 2 of the Privacy and Other Legislation Amendment Act 2024.
Lawyers will be accustomed to all sorts of clients complaining about breaches of their privacy. These may include poisonous posts on social media (often anonymous); malicious emails or messages; websites created to attack and humiliate; old-school leaflet drops; and approaches to journalists. Culprits might commonly be former partners in life or business: embittered relatives, neighbours, colleagues and friends. The material might be in video, photographic or written form; sexual or salacious; or concern a person’s health or finances. It might just incorporate private accounts of love, loss, joy or despair.
Until now, in terms of avenues provided by the civil law, an old-school equitable breach of confidence action was the best option for such complaints. That action is often not well equipped to accommodate these sorts of disputes, not least because of the requirements to prove information is ‘confidential’ as well an actual or threatened use of the information without consent (as opposed to the actual gathering of the information), and the limited ability to recover damages for distress.
The new tort covers intentional or reckless breaches of privacy that meet a threshold of seriousness. It is actionable without proof of damage. It will now be easier for individuals to apply for injunctive relief to stop publication of private information or photographs online. That is perhaps the most obvious application of the new tort, although there will be other developments, including for actions against the mass media and class actions (most obviously concerning data releases and data harvesting).
