In what may be a landmark case in Australian privacy law, Sam Groth, the deputy leader of the Victorian Liberal Party and former tennis star, and his wife Brittany Groth have commenced legal proceedings against the Herald Sun, its editor and a reporter alleging, alongside defamation, a serious invasion of privacy.
The case is likely to involve the first judicial consideration of Australia’s new statutory tort for serious invasions of privacy, which came into effect on 10 June 2025.
The dispute spotlights one of the underlying tensions at the core of the new protection between an individual’s right to privacy and a purported media public interest.
Background to the Groths’ Claims
The Groths’ claims relate to a series of articles published by the Herald Sun in late July 2025 which suggest that Mr Groth began a sexual relationship with Mrs Groth when she was under 18. This would constitute a criminal offence, as it was alleged to have occurred at a time when Mr Groth had a duty of care over Brittany Groth as her tennis coach.
These allegations have been strongly rebuked by the Groths, particularly as they relate to the privacy of Mrs Groth as an alleged child victim of sexual assault. The Herald Sun’s failure to seek a response from Mrs Groth before publishing the article is likely to form a key component of the Groths’ argument that the alleged invasion of her privacy was intentional or reckless. This was emphasised in a public statement issued by Mr Groth on 30 July 2025 in which he said:
“It was a serious act of misconduct for a newspaper to name and shame an alleged victim without her prior knowledge or consent. It is shocking that a media company would behave in this way in 2025 – taking away a woman’s privacy and agency and causing her extreme distress as a mother.”
Statutory Tort for Serious Invasions of Privacy
As summarised in our earlier Insight, the statutory tort for serious invasions of privacy, contained in Schedule 2 of the Privacy Act, protects against the invasion of a person’s privacy occasioned either by intrusions upon the person’s seclusion or the misuse of information that relates to the person. To succeed in a claim, the Groths will need to prove:
- they had a reasonable expectation of privacy; and
- the invasion of privacy was intentional or reckless; and
- the invasion of privacy was serious; and
- the public interest in Mrs Groth’s privacy outweighed the public interest in the information (including freedom of the media) given Mr Groth’s prominent role in Victorian politics.
It is not a requirement to establish any proof of damage.
The Herald Sun is likely to rely on the public interest in their articles, as well as the broad exemption available to professional journalists where the invasion of privacy involves the collection, preparation for publication or publication of ‘journalistic material’ (which is defined, among other things, to include material that has the character of news, current affairs or a documentary).
Significance
The implications of the Federal Court’s approach to the Groth v Herald Sun dispute are potentially very significant. The scope and application of the statutory tort for serious invasions of privacy remain to be defined, including key concepts like the “seriousness” of an invasion and a “reasonable expectation of privacy”. Liability for an invasion of privacy is high (for non-economic loss plus any exemplary or punitive damages it must not exceed the greater of $478,550 and the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings under an Australian law). The Court’s interpretation, particularly as it relates to the exemption for journalists, is likely to inform the conduct of media organisations in an age of increasing privacy protection.
The first case management hearing for the dispute is scheduled for 30 October 2025, and we will be monitoring for any updates. Please contact Addisons’ media or privacy teams if you have any questions about the statutory tort for serious invasions of privacy.