Media release: New Australian privacy laws come into force, with exemptions for media and increased relevance for online and data breach cases

The changes under Schedule 2 of the Privacy Act 1988 (Cth) enables individuals to sue for intentional or reckless invasions of privacy that are "serious" and breach a reasonable expectation of privacy, where the public interest in the individual's privacy outweighs any countervailing public interest. As with traditional tort claims based on trespass to the person, no damage needs to be established.

However, the reach of the new tort has limitations, with exemptions carved out for media. The legislation includes a broad exemption for news publications, current affairs or documentaries, as well as commentary or opinion on those topics. The tort also does not arise where the public interest in freedom of expression outweighs the interest in privacy — creating a high bar for plaintiffs challenging media conduct.

Commercial Litigation Partner Douglas Bishop said the changes do not reflect a replacement for defamation. “The media will retain significant protections, and plaintiffs alleging harm from public reporting will still need to pursue defamation, which has itself become more difficult after successive statutory reforms," Mr Bishop said.

"Prior to the introduction of uniform defamation laws in 2005, the truth defence in some jurisdictions had an additional element which required media defendants to prove both truth and public benefit to successfully defend a publication. Since the 2005 reforms that public benefit requirement no longer applies."

Commercial Litigation Partner Lindsey Cregan said the tort’s utility would have to emerge in matters outside mainstream media, particularly in relation to online misconduct and data privacy failures.

“This tort is likely to be significant in personal disputes involving the non-consensual publication of private information — think online harassment, doxxing, or revenge content,” Ms Cregan said. “It may also have implications for private sector organisations where data breaches or disclosures occur in circumstances amounting to recklessness.”

Ms Cregan said that unlike defamation, truth is not a defence under the privacy tort, potentially giving claimants a pathway to relief where defamation law would offer none.

"These changes are unlikely to reduce the overall volume of defamation litigation,  obviously not against media entities. We anticipate a growing body of privacy-related litigation, especially in digital and consumer contexts."

“There's scope for dual pleading in some cases, but more importantly, we're likely to see the courts develop a new body of jurisprudence around this tort quite quickly,” Ms Cregan said. “Particularly in areas where privacy harm is real, but reputational harm — in the defamation sense — is not the primary issue.”