Quick hit

On 12 September 2024, the Government introduced a number of proposed reforms to Australia’s privacy laws. If enacted, the Privacy and Other Legislation Amendment Bill 2024 would, amongst other proposed reforms, establish a new cause of action for serious invasions of privacy – providing individuals with the ability to seek redress directly through the courts.

Currently, individuals seeking redress for breaches of privacy are required to use other means (such as indirect action via regulatory bodies or other areas of law, such as misuse of confidential information).

The current provisions of the Privacy Act, which regulates the handling of personal information by certain entities, will remain in place, with a small number of specific reforms.

The proposed cause of action

The proposed tort will be available only to living individuals (not companies), and has the following elements:

  • An invasion of privacy: This must be by either or both (a) an intrusion on the plaintiff’s seclusion (e.g. watching, listening or recording private activities), or (b) a misuse of information that relates to the plaintiff (e.g. collecting, using and disclosing information).
  • A reasonable expectation of privacy in all the circumstances.
  • A fault element: the invasion must be intentional or reckless.
  • Seriousness: The invasion of privacy must be serious. In determining what is a “serious” invasion of privacy, a court may consider a series of non-limiting factors. These include the degree of any offence, distress or harm to an ordinary person in the position of the plaintiff, the knowledge of the defendant of that harm, and whether the invasion of privacy was intentional and motivated by malice.
  • Public interest: If there is evidence that there is a public interest in the invasion of privacy (for example, freedom of expression or freedom of the media), then the plaintiff must also show that this public interest was outweighed by the public interest in protecting the plaintiff’s privacy.

Importantly, the plaintiff does not need to prove damage.

Any action must be commenced within 1 year of becoming aware of the invasion of privacy, or 3 years after the invasion of privacy occurred, whichever is earlier.

Defences and Exemptions - Journalist exemption

A number of defences and exemptions are available, including a blanket exemption for professional journalists. Recent reports suggest this exemption may be the most contentious, with concerns being raised that the exemption is both too broad and too narrow.

The exemption means that there is no actionable tort if there is an invasion of privacy by a journalist in the collection, preparation for publication or publication of journalistic material. Journalistic material is defined to be material that has the character of news, current affairs, or a documentary, or commentary on the same.

The exemption is only available to professional journalists, being those subject to standards of professional conduct or codes of practice. The exemption is also available to the employer of a journalist, a person assisting the journalist in their professional capacity or who is also engaged by the employer. Concerns have been raised that this definition does not cover the publisher of the journalistic material, noting that journalists may be freelance.

Remedies

Under the proposal, a plaintiff may be awarded damages for a serious invasion of privacy, including damages for emotional distress and exemplary or punitive damages in exceptional circumstance. However, damages are capped at the maximum amount available for damages in defamation proceedings, currently $478,550.

The Court may also make orders, including an account of profits, an injunction, an apology, a correction order and a destruction order.

Other privacy reform proposals

In addition to the proposed tort, the Government’s bill proposes a number of other reforms to Australia’s privacy laws. These include new criminal offences addressing doxing, additional enforcement powers of the Australian Information Commissioner, the development of a Children’s Online Privacy Code and a requirement for transparency in relation to automated decision making,

The proposed reforms are a first tranche of privacy reforms. The Government has indicated that additional reforms, following its response to the Privacy Act Review Report, will follow.

Next steps

The Senate referred the Bill to a Senate Committee for inquiry and report by 14 November 2024.The closing date for any submissions to that Committee is 11 October 2024. We’ll be keeping an eye on the progress of the Bill.

For assistance with compliance with the current requirements of the Privacy Act, and future changes, please contact Adam Simpson, Ian McDonald or Anna Spies.

By Anna Spies