A tort is a civil wrong wherein one party causes loss or harm to another. A cause of action in tort allows the affected party to sue the wrongdoer for damages or other relief.  Whether an action in tort for invasion of privacy exists in Australia has been a topic of contention since the early 2000s.

A new suite of privacy law reforms, contained in the Privacy and Other Legislation Amendment Act 2024 (Cth) (the Act) is being rolled out across the year and brings an end to this uncertainty. On 10 June 2025 a new statutory tort for serious invasions of privacy came into effect.

The Act states that the purpose of these provisions is to:

• establish a cause of action for serious invasions of privacy;
• provide for defences, remedies and exemptions;
• recognise that the protection of privacy is a public interest to be balanced with other public interests; and
• implement Australia’s international obligations in relation to privacy, specifically under the International Covenant on Civil and Political Rights.

Cause of Action

Under the Act, an individual now has a cause of action in tort against another person where:

(a)        their privacy has been invaded by:
          (i) an intrusion into their seclusion; or
          (ii) the misuse of information relating to them; and

(b)        a person in their position would reasonably have expected privacy in all 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 individual’s privacy outweighed any countervailing public interest.

It is not necessary to prove damage for an invasion of privacy to be actionable.

Defences

Some defences include:

Remedies

If it finds that a serious invasion of privacy has occurred, a court may grant one or more of the following remedies:

Exemptions

Notably, an exemption is provided for journalists and other related parties if the invasion of privacy occurs in the collection, preparation for publication or publication of journalistic material.

Application in Other Jurisdictions

Similar torts of privacy have been recognised to varying degrees in the USA, UK and New Zealand, and provide insight into the types of claims that may arise under this new statutory tort. ALRC Report 123 –Serious Invasions of Privacy in the Digital Era, published 15 July 2014 (Report), discusses several cases where plaintiffs have successfully sued for invasion of privacy in those jurisdictions.  

In the New Zealand case of C v Holland [2012] 3 NZLR 672, the courts first recognised the existence of a tort of invasion of privacy in New Zealand.  The case involved a man who secretly installed a video camera and recorded his flatmate while she was showering.

According to the Report, intrusion upon seclusion has been found to include not only entry into physical spaces but also ‘watching, listening to, or recording someone’s private activities or private affairs.’ Specific examples include ‘taking a photo of someone in a change room, reading their bank statements, tapping their phone calls, or hacking into their computer.’

The Report notes that, in the USA intrusion upon seclusion cases have typically focused on how private information is obtained, rather than the publication of that information.

Examples of misuse of information, as identified in the Report, include ‘publishing a person’s medical records in a newspaper or posting sexually explicit photographs of someone on the internet, without their permission.’

Conclusion

This new statutory cause of action ends longstanding uncertainty about the existence of a tort for serious invasion of privacy in Australia. It will be important to watch how the case law develops, and we will continue to provide updates as it does.

If you are unsure about your obligations under the new privacy reforms – or your privacy obligations broadly – please contact Craig Hong or John Davies on 07 3220 1144 or craig@hillhouse.com.au.

---