Important Changes to Privacy Laws in Australia
by Geoff Lloyd | Jan 30, 2025| Latest News
Until recently, the authority from Australia’s highest Court, the High Court, was that there was no civil wrong of ‘invasion of privacy’ in Australia. Interestingly, a recent case in the Victorian County Court did recognise an invasion of privacy in a case where a woman successfully obtained compensation of tens of thousands of dollars against her father, arguing that he had breached her privacy in a series of media interviews he gave after he survived a murder attempt which had been organised by her mother. Her father had co-authored a true crime book and given interviews to journalists about the matter.
Owing to the judicial system in Australia, however, a decision by the County Court in Victoria is not binding on Courts in other states. However, there have been further developments and the Commonwealth Government has recently passed a new statutory regime for serious invasions of privacy. Under the new law, which has not yet commenced, anybody affected by a ‘serious invasion of privacy’ will have access to a claim for damages and other legal remedies including injunctions. To succeed, a Plaintiff under the new law must prove that the Defendant invaded their privacy, and that the invasion was by ‘intrusion upon the Plaintiff’s seclusion’ or ‘misuse of information’ or both. The first category would usually involve someone watching, listening or recording someone’s private activities or affairs. The second category would involve misuse of the personal information of the victim.
A Plaintiff in such a case must prove that they had a reasonable expectation of privacy. The Court will also consider the circumstances in which the alleged breach of privacy took place, and it is believed that a breach occurring in a home will be regarded more seriously than one occurring in a public place.
The Plaintiff will have to prove that the Defendant intentionally or recklessly invaded their privacy; negligence or carelessness will not be sufficient. It will be what is known as an intentional tort.
There are short limitation periods that apply and normally the claim must be brought within 12 months of the event, as is the case with defamation law, or within 12 months of the Plaintiff becoming aware of it provided that is still within 3 years of the invasion of privacy occurring. There are further special provisions for a Plaintiff under the age of 18.
A Defendant has access to a series of defences, including:
- that the disclosure was required or authorised by law
- the Plaintiff consented
- the breach was necessary
- any breach was incidental to lawful defence of people or property
Defences relevant to the law of defamation may also apply, for example, actions by journalists.
Once again, similar to defamation law, the damages a Court may award will be reduced if the Defendant has apologised or published a correction. The Court also may increase damages if the Defendant has engaged in later conduct that has been unreasonable. A Court can also consider whether the Plaintiff had been subject to particular embarrassment, harm, distress, or humiliation.
Early commentary on the matter has raised the issue of companies breaching the law by using data collected by them for an incorrect purpose.
The legislation is likely to come into force sometime this year and will certainly create another interesting area of possible legal actions. Our firm will be monitoring the new legislation and will be able to offer assistance in the area as the Courts begin to interpret the new law. Contact Geoff Lloyd at our Camden office on 4651 4800.