Serious invasion of privacy – new tort

The Commonwealth Parliament has recently passed legislation to create a statutory tort for serious invasion of privacy. See the Privacy and Other Legislation Amendment Act 2024 (Cth) which received assent and came into force on 10 December 2024. It amends the Privacy Act 1988 (Privacy Act) to establish a cause of action for serious invasions of privacy and to provide defences remedies and exemptions. It also amends the Criminal Code Act 1995 (Cth) (Criminal Code) to introduce a criminal offence for ‘doxxing’, or the intentional malicious exposure of an individual’s personal data online or one or more members of certain groups (refer to s 474.17C and s 474.17D of the Criminal Code, respectively).

The new cause of action provides that:

(1) An individual (the plaintiff) has a cause of action in tort against another person (the defendant) if:

 (a) the defendant invaded the plaintiff’s privacy by doing one or both of the following:

 (i) intruding upon the plaintiff’s seclusion;

 (ii) misusing information that relates to the plaintiff; and

 (b) a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances; and

 (c) the invasion of privacy was intentional or reckless; and

 (d) the invasion of privacy was serious; and

 (e) the public interest in the plaintiff’s privacy outweighed any countervailing public interest.

 (2) The invasion of privacy is actionable without proof of damage.

as set out in clause 7(1) and (2) Part 2 of the new Schedule 2, which has effect per s 94A of the Privacy Act.

The damages that may be ordered by a court under clause 11 Part 2 of Schedule 2 of the Privacy Act as a remedy for this new tort are capped at the greater of:  $478,550; and the maximum amount of damages for non-economic loss that may be awarded in defamations proceedings under an Australian law. The Court may consider whether the defendant has apologised in determining the amount of damages.

Clause 12 of Part 2 of Schedule 2 allows the court to grant other remedies in addition to, or instead of, damages awarded, including:

• an account of profits,
• an injunction,
• an order requiring the defendant to apologise to the plaintiff
• a correction order or
• an order that any materials in the defendant’s possession that was obtained or made as a result of the invasion of privacy or was misused during the course of the invasion of privacy be destroyed or delivered up to the plaintiff.

The Court can also make a declaration that the defendant has seriously invaded the plaintiff’s privacy.

There are exemptions in Part 3 of Schedule 2 for journalists, State agencies, law enforcement bodies, intelligence agencies or persons under 18.