Australia, your privacy starts now

Until now and unlike those in many other comparable nations, Australians did not have an enforceable right against breaches of their privacy. Amendments to the Privacy Act 1988 (Cth) in force today are meant to enable individuals to seek redress, including compensation, for instances of serious invasions of privacy.

What does the new law protect?

The new statutory tort protects against the invasion of a person’s privacy occasioned either by intrusions upon the person’s seclusion (eg surreptitiously capturing personal information or images) or the misuse of information that relates to the person (eg disclosing personal information without consent, including photographs and sensitive or other intimate details such as health and financial data). To make a claim, a plaintiff needs to prove:

1. they had a reasonable expectation of privacy; and
2. the invasion of privacy was intentional or reckless; and
3. the invasion of privacy was serious; and
4. the public interest in the person’s privacy outweighed the public interest in the information.

Defences and exemptions

There are several defences available, including where:

• The invasion of privacy was required or authorised by or under an Australian law or court order;
• The plaintiff expressly or impliedly consented to the invasion of privacy;
• The defendant reasonably believed that the invasion of privacy was necessary to prevent or lessen a serious threat to the life, health or safety of a person.

There is also a broad exemption available to professional journalists to the extent that the invasion of privacy involves the collection, preparation for publication or publication of journalistic material. Material is ‘journalistic material’ if it:

1. has the character of news, current affairs or a documentary; or
2. consists of commentary or opinion on, or analysis of, news, current affairs or a documentary; or
3. consists of editorial content relating to news, current affairs or a documentary.

Remedies

The court has the power to grant injunctions; award damages; order an apology or correction be made; order that material be destroyed; or make a declaration that the defendant seriously invaded the plaintiff’s privacy. Damages for non-economic loss are currently capped at $478,550.

Please contact Addisons if you have any questions about the new privacy laws or need help with an invasion of privacy claim.