Media, Defamation & Reputation ManagementAustralia’s New Tort of Privacy

On 10 June a new tort of privacy came into effect in Australia pursuant to the Privacy and Other Legislation Amendment Act 2024.

What that means is that a person may potentially be able to sue over published matter (such as an article, photograph or video)  if the effect of the publication of the matter is to invade the person’s privacy by intruding upon their seclusion or misusing their information.

The tort provides that a person can sue for invasion of privacy where:

1. the person’s seclusion has been intruded upon – for example, intruding upon the person when he or she were in a private location using a telephoto lens whilst undertaking a private function such as a family gathering;
2. information that relates to the person has been misused. This is the primary issue in relation to privacy, and may include circumstances where matter has been published about a person’s sexual activities, matter published about children, and matter published about a person’s health or medical condition.
3. the person has a reasonable expectation of privacy. In relation to this issue, a Court may consider matters including;
   1. the means used to invade the person’s privacy – for example the use of a telescopic lens;
   2. the purpose of the invasion of privacy;
   3. the attributes of the person, including the person’s age, occupation or cultural background. For example, if the person was a child, one would expect there to be a greater expectation of privacy.
   4. the conduct of the person, including whether the person invited publicity, or sought privacy. For example, if a celebrity posts matter about the person’s personal and family life online, it may be argued that the person can then hardly complain if similar matter is then published about the person’s personal or private life;
   5. if the person’s privacy was invaded by intrusion upon the person’s seclusion, the place where the intrusion occurred. For example the use of a drone over a celebrity’s house to film a private function;
   6. if the person’s privacy was intruded by misusing information that relates to the person, a court may take into account:
      1. the nature of the information, including whether the information relates to intimate or family matters, health or medical matters, or financial matters;
      2. how the information was held or communicated by the person. For example, a relevant factor could be if photos were uploaded onto the person’s Facebook account and the settings were private, and a third person then sought to publicly publish those photos;
      3. whether and to what extent the information was already in the public domain.
4. the invasion of privacy was intentional or reckless;
5. the invasion of privacy was serious. Clearly, if the claimed invasion of privacy was not serious, for example, it was about a trivial aspect about a person, then there is no cause of action.  In assessing seriousness, a court can take into account:
   1. the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause to a person;
   2. whether the publisher knew or ought to have known that the invasion of privacy was likely to offend, distress or harm the dignity of the person;
   3. if the invasion of privacy was intentional, whether the publisher was motivated by malice.
6. the public interest in the person’s privacy outweighs any of the countervailing public interest. In assessing the countervailing public interest, amongst others the following may constitute such an interest:
   1. freedom of the media;
   2. open justice
   3. public health;
   4. prevention and detection of crime and fraud.

   Clearly, some of the above factors may tie into whether the matter constitutes news or current affairs, noting that if it constitutes news, there will be no cause of action for breach of privacy available.

There are a number of defences available to a breach of privacy action, including;

1. that the person had expressly or impliedly consented to the invasion of privacy. For example, if the person was a celebrity who in interviews regularly discussed in detail that person’s personal or private life, and similar matters were then proposed to be published by a third person;
2. the matter as published constitutes a fair report of Court or Parliamentary proceedings.

If a person institutes proceedings for breach of privacy, the person may seek relief including:

1. an injunction;
2. damages
3. an apology and/or correction order.

Although there are limited exceptions, there is a 12-month limitation period for the brining of any action.  Further, the new law is not retrospective in nature from the date of its commencement.

The cause of action however does not apply where matter has the character of news, current affairs or of a documentary.  This exemption will generally only apply where the matter was published or distributed by a journalist, or a person assisting a journalist, and where the journalist is subject to standards of professional conduct or of a code of practice.

Dictionary meanings are not binding on a Court, but as an example, the Macquarie Dictionary defines news as:

“1. a report of any recent event, situation, etc 2. the report of events published in a newspaper, journal, radio, television, or any other medium 3. Information, events etc., considered as suitable for reporting: its very interesting but its not news; 4. Information not previously known:  that’s news to me”

Despite the definition, it is obviously doubtful that merely because “events” are reported in a newspaper, that such reporting will thereby make the events reported on “news”, noting that pursuant to the provisions of the legislation, the report has to have the “character of news”.

There have been few court proceedings which define what is meant by the word “news”. In past legal proceedings brought over alleged infringements of copyright, the issue of what is “news” has been looked at, with such decisions variously holding that:

1. news can be account of recent events of interest to the general public, or particular sections of the general public;
2. the fact that humour is used, or that news had entertainment value, did not stop it being news;

It could be arguable that the more that information relates to matters of public interest (crime, fraud, dishonesty, politics) and the less it resembles pure gossip, then the more likely it is to constitute news. There will be grey areas – for example, a celebrity does something that is of interest to the public – is that news, or it that gossip? The phrase “what’s news today is tomorrow’s fish and chips wrapper” may also be apt, especially where what is proposed to be published has only a marginal quality of news about it.

With “current affairs”, as far as we are aware, there have been no court decisions as to what is meant by current affairs. The phrase could however potentially include issues that may be topical, but not necessarily news – for example, neighbourhood disputes.

From 10 June 2025, if you publish matter that may potentially invade a person’s privacy by intruding on their seclusion or misusing their information, then you may be exposed to a claim against you pursuant to the new tort of privacy. You therefore should consider the provisions of the legislation carefully prior to any publication. Conversely, if you have been subject of a publication that may have breached your privacy, whether by mass media or social media or otherwise, you may potentially have available a remedy and recourse pursuant to the new legislation.

This information is not intended to be a comprehensive review of the law of privacy, does not cover all aspects of the law of privacy, and does not constitute legal advice. Readers should obtain their own legal advice before applying it to specific issues or potential claims.