Australia now recognises a legal action for serious invasions of privacy. In some circumstances, if your privacy has been seriously invaded, you may be entitled to seek compensation and other remedies.
The amendment to the Privacy Act has introduced Schedule 2 to the Privacy Act (Cth), which creates a cause of action where an individual’s privacy has been invaded, either by physical intrusion or by misuse of private or sensitive information
To pursue this cause of action, you must establish that:
- an invasion of privacy by either physical intrusion into your private space, recording your private activities or misusing your sensitive personal information.
- a reasonable expectation of privacy
- the invasion of privacy was intentional or reckless
- the invasion of privacy was serious; and
- the public interest outweighs your right to privacy (for example- freedom of expression or freedom of media).
So what does all this mean in simple terms?
If someone seriously invades your privacy, you can now claim compensation.
What actually counts as an invasion of privacy?
Intruding into your private life
- Surveillance
- Hacking your accounts
- Being present when or where you expect privacy
Misusing your private information
- Sharing private photos
- Revealing your sensitive personal details
- Publishing private or sensitive information that you did not consent to being shared
You don’t need to prove financial loss
You may still be entitled to compensation even if you have not suffered financial loss.
What remedies may be available if your privacy is seriously invaded?
Compensation
- Emotional distress
- Humiliation
- Loss of dignity
The cap on damages for non-economic loss is $478,550.
Other remedies the court may order
In addition, the following orders can be sought:
- Injunction (stop publication order)
- Apology/correction
- Deletion/destruction of the material
Are there defences?
A person accused of invading your privacy may have a defence if:
- There was consent
- The conduct was required or authorised by law
- There was a protection to a serious threat to safety
- The public interest outweighed the privacy interest
In short, the new privacy tort means that your privacy is no longer just a personal expectation. In some circumstances, it is a legal right that may be enforced where a serious invasion of privacy has occurred.
