Earlier this year, on 10 June 2025,¹ a new statutory tort for serious invasions of privacy came into effect.

The new tort enhances the ability of plaintiffs to protect their privacy and to seek compensation, including for invasions to their physical privacy and misuse of information that relates to them.²

Prior to this reform, the Privacy Act 1988 (Cth) (Privacy Act) did not provide plaintiffs with a direct cause of action in respect of acts that interfered with their privacy. Instead, a plaintiff’s recourse for any interference was limited to relying on the Office of the Australian Information Commissioner (OAIC) to take steps on their behalf via the OAIC’s complaints, investigation and enforcement processes.

The new tort signifies a major legal development in Australian privacy law. However, whilst it introduces stronger protections for plaintiffs, it also creates new risks and challenges for journalists and media organisations.

Overview of the tort

The new tort provides an individual (referred to as the ‘plaintiff’ in this article) with a right to commence proceedings in Court for serious invasions of privacy.

To succeed in any proceedings, a plaintiff must satisfy five different elements.³

Invasion of Privacy

Firstly, a plaintiff must establish that there has been an invasion of privacy.⁴

The new tort is confined to two types of privacy invasion, being:

1. an intrusion upon a plaintiff’s seclusion which includes, but is not limited to:
   1. physically intruding into a plaintiff’s private space (for example, accessing private premises without permission or spying on a plaintiff in their home); and/or
   2. watching, listening to, or recording the private activities or affairs of the plaintiff; and/or
2. misusing information that relates to the plaintiff (regardless of whether that information is true or not). This includes, but is not limited to, collecting, using or disclosing information about the plaintiff (for example, maliciously releasing a plaintiff’s sensitive personal or financial information online without their consent (ie doxxing)).⁵

Reasonable expectation of privacy

Secondly, a plaintiff must demonstrate that a person in their position would have had a reasonable expectation of privacy in all the circumstances.⁶ The Privacy Act sets out a non-exhaustive list of matters that may be relevant to consider when determining whether a reasonable expectation exists, including, but not limited to:⁷

1. the means used to invade the plaintiff’s privacy (including the use of any device or technology);
2. the purpose of the invasion of privacy;
3. the attributes of the plaintiff, such as their age, occupation or cultural background (for example, children may have a greater expectation of privacy than an adult);
4. the conduct of the plaintiff, including whether the plaintiff invited publicity or manifested a desire for privacy;
5. the place where the invasion occurred (for example, a person will generally have a greater expectation of privacy in their home than in a public place); and/or
6. the nature of the information relating to the plaintiff (for example, a person will have a greater expectation of privacy in respect of intimate, health or family information).

Fault

Thirdly, a plaintiff must prove that the defendant intentionally or recklessly invaded the plaintiff’s privacy.⁸ Proof of negligence is not sufficient to establish the fault element of the new tort.

The requirement for recklessness covers situations where a person is aware of a substantial risk and – having regard to the circumstances known to them – it is unjustifiable for the person to take the risk.⁹

To establish an intentional invasion, the defendant’s intention must relate to the invasion of the plaintiff’s privacy by intrusion upon seclusion or misuse of information. The focus is on the invasion itself – not the act that led to the invasion. For example, if a photographer takes a photograph of a public event that inadvertently captures a private activity in the background, that photographer would not be committing an intentional or reckless invasion of privacy.¹⁰

Seriousness of the invasion

Fourthly, a plaintiff must prove that the invasion of privacy was serious.¹¹ The requirement of seriousness is intended to deter plaintiffs from bringing trivial claims before the Court.¹²

Whether an invasion of privacy is ‘serious’ is an objective test having regard to the non-exhaustive list of factors set out in the Privacy Act.¹³ Relevant factors include the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause to a person of ordinary sensibilities in the position of the plaintiff and/or whether the defendant knew or ought to have known that the invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff.

The inclusion of likely harm to dignity as a consideration recognises that an invasion of privacy may be serious even if it does not cause material harm or offence.¹⁴

Public interest balancing

The final element that a plaintiff must establish is that the public interest in protecting the plaintiff’s privacy outweighs any countervailing public interests that are raised by the defendant.¹⁵

This balancing exercise recognises that while privacy interests are important, they are not absolute.¹⁶

The Privacy Act provides a non-exhaustive list of countervailing public interest considerations that a court may consider when assessing whether an invasion of privacy is in the public interest.¹⁷ In the context of the media, the public interest matters that may conflict with privacy interests listed in the Privacy Act include:

1. freedom of expression, including political communication and artistic expression (ie the public interest in discussing and debating political matters and expressing opinions about the various facets of public life); and
2. freedom of the media (ie the public interest in responsible investigation and reporting of matters of public concern and importance).

Defences

The Privacy Act sets out a series of defences to the cause of action for serious invasions of privacy.¹⁸ A defendant will bear the onus of proving their conduct is subject to a defence. Several of these defences are particularly relevant to media and journalists including:

1. where the conduct was required or authorised by Australian law or a court/tribunal (for example, where the conduct was in compliance with a court order or statutory duty);¹⁹ and/or
2. where a plaintiff gave their consent to the conduct.²⁰

Separately, where the alleged invasion of privacy occurred through the ‘publication’ of information that relates to the plaintiff (as that term is understood in defamation law (ie the communication of information to at least one person other than the plaintiff)), it will also be a defence if the defendant can establish that they would be entitled to rely on the following defences available to them under defamation law:²¹

1. the defence of absolute privilege;
2. the defence for publication of public documents; and/or
3. the defence of fair report of proceedings of public concern.

These defences were included because they protect a wide range of matters where there is an inherent public interest in free expression.²² Other defamation defences were not included because they are not relevant in the context of the statutory tort.²³ For example, the defence of justification/truth is not relevant for the tort because where information is misused, it does not matter if the misused information is true or not.²⁴

Exemption for professional journalists

This new tort carves out a specific exemption to journalists. The new tort will not apply to invasions of privacy by a journalist, their employer, persons engaging them, and/or certain persons assisting them in their professional capacity where the invasion of privacy involves the collection, preparation for publication or publication of ‘journalistic material’.²⁵

The exemption recognises the importance of journalism to a free and democratic society, and that the prospect of litigation could have a chilling effect on public interest reporting.²⁶

A ‘journalist’ for the purpose of this exemption is defined as a person who works as a journalist in a professional capacity and is subject to standards of professional conduct or a code of conduct of practice that apply to journalists.²⁷ The emphasis on journalists working in a ‘professional capacity’ means that the exemption is unlikely to extend to those without professional journalism qualifications or who are not employed by a mainstream news outlet/platform, such as citizen journalists, freelancers, bloggers and/or podcasters.

‘Journalistic material’ for the purpose of this exemption is material that:

1. has character of ‘news, current affairs or a documentary‘;
2. consists of commentary or opinion on, or analysis of news, current affairs or a documentary; and/or
3. consists of editorial content relating to news, current affairs or a documentary.²⁸

The phrase ‘news, current affairs or a documentary’ is not defined for the purpose of the exemption. However, it is expected that the ordinary meaning of the term ‘news’ will apply.

The exemption operates in addition to the requirement that the court balance the public interest in the plaintiff’s privacy with other public interests as part of the cause of action (discussed earlier in this article).²⁹ Accordingly, even if a person cannot rely on the exemption, they may still be able to establish that their activities engage the public interest in freedom of the media or the freedom of expression.

Remedies

The new tort is intended to protect intangible interests and the dignity of the plaintiff. Accordingly, a plaintiff does not need to prove that they have suffered loss or damage in order to take action.³⁰

A plaintiff can pursue a broad range of remedies for a breach of the statutory tort, including:

1. an interim injunction restraining an invasion of privacy at any stage of proceedings;³¹
2. an order requiring the defendant to apologise to the plaintiff;³²
3. a correction order;³³
4. an order for the destruction or delivery up of material in a defendant’s possession that was obtained or made as a result of the invasion of privacy, or was misused during the invasion of privacy;³⁴
5. damages (noting a claim for damages is currently capped at $478,550);³⁵ and/or
6. an account of profits.

On the other hand, media organisations or journalist defendants facing proceedings can apply for summary judgment on the basis that a plaintiff has no reasonable prospect of successfully prosecuting the proceedings. For example, this may be the case if it is apparent that the journalist exemption applies, or another defence is clearly available.³⁶

Consideration of the new tort by Australian Courts

In New South Wales, the District Court recently considered the first application for relief under new tort.

In Kurraba Group Pty Ltd & Anor v Williams [2025] NSWDC 396, the second plaintiff (the Chief Executive Officer of the first plaintiff, Kurraba Group Pty Ltd (Kurraba)) made an application seeking, among other things, orders for injunctive relief that were designed to stop a ‘campaign of extortion’ engaged in by the defendant.

In doing so, the second plaintiff successfully relied on the new tort.

For context, the defendant was the sole director of a company that entered into a short term, six-month lease on a property that was the subject of an existing development application made by Kurraba.

Towards the end of the lease, the defendant sent a text message to the first plaintiff in which he (in effect) foreshadowed an intention to oppose Kurraba’s development application. The defendant subsequently met with the second plaintiff in person on 11 November 2024, during which the defendant (in effect) told the second plaintiff that he would lodge an objection to the development application unless the first plaintiff paid him $50,000. The second plaintiff refused to pay the defendant $50,000.

After the first plaintiff’s refusal, the defendant embarked on a campaign against the plaintiffs, which included:

1. lodging 64 pages of written submissions opposing the development and calling on the council to terminate the development;
2. publishing a one-star google review of the first plaintiff (and, by inference, the second plaintiff) in which he accused them of, among other things, being incompetent, lacking experience and expertise and of damaging the local area;
3. making oral submissions to the planning committee which was considering the development application, which contained serious allegations about the plaintiffs;³⁷ and
4. creating a public website (‘Kurraba Group Exposed’) on which he made a series of allegations of ‘the gravest kind’ against both plaintiffs.³⁸

The plaintiffs alleged that the defendant brought the campaign of extortion for the purpose of obtaining financial benefit sought in exchange for ceasing to publish allegations about the plaintiffs.

The conduct which formed the basis for the new tort involved the defendant’s misuse of private wedding photographs of the second plaintiff and his wife. The Court observed that the defendant misused those photographs by seeking ‘to portray what they depicted as indicating moral delinquency and drunkenness as opposed to the sanctity of marriage and the ceremonial proceedings attendant thereupon’.

The judgment did not contain a comprehensive analysis of the elements of the new tort and their application to the defendant’s misuse. However, the Court observed that:

1. weddings were intended to be ‘as private as was possible’;
2. the second plaintiff and his wife were not public figures and had no intention of publishing their wedding photographs to any media or other mass publication organisation; and
3. the misuse of private photographs has long been recognised in Australia as being capable of amounting to defamation where they appear out of context as no question of consent can arise.

The Court found that the balance of convenience favoured the plaintiffs, the defendant’s conduct was not that of journalistic-style investigation, but of extortion, and there was no evidence of any other legitimate reason for the defendant’s conduct.

The Court, among other things, subsequently granted a series of injunctions which:

1. restrained the defendant from publishing any document (including, without limitation, by way of posting articles on the Internet, posting videos on the Internet, sending a text message, or sending an email) referring to or identifying the plaintiffs or the development that was the subject of the application (either expressly or by implication);
2. required the defendant to take all steps to remove from the Internet and/or any social media platform any website, article, advertisement or document referring to or identifying the plaintiffs or the development that was the subject of the application (either expressly or by implication); and
3. restrained the defendant, until the final determination of the proceedings, from repeating or continuing to publish a website, article, advertisement or document referring to or identifying the plaintiffs or the development that was the subject of the application (either expressly or by implication).

Practical consequences for media organisations and journalists

While the circumstances in Kurraba did not involve any media reports, the new tort is likely to have significant practical consequences on the way that media organisations and journalists conduct their day-to-day reporting.

For example:

1. Material obtained by covert methods without consent (such as video footage or photographs of a plaintiff that have been taken using a hidden camera, or information obtained via anonymous leaks) is likely to breach the new tort and should not be utilised in news stories without first obtaining legal advice.
2. The lack of clarity regarding the definition of ‘news’ for the purpose of the journalist exemption means that media organisations and journalists will need to carefully consider and seek advice regarding whether a proposed story can be considered ‘news’ for the purpose of the exemption. This will likely be relevant in the preparation of stories involving the personal lives of about high-profile celebrities or public figures.
3. We expect to see an increase in the number of plaintiffs who rely on the new tort to seek interim injunctions that prevent news stories from being aired or published (particularly where an application for an injunction based on defamation may not succeed). In circumstances where an interim injunction is successfully obtained, the media organisation and/or journalist would be restricted from running the story until such time that media organisation and/or journalist can establish that ‘the journalist exemption’, or another defence, applies to the conduct. However, even if an interim junction is successfully opposed, a journalist will still have lost the benefit of publishing a story while it is the most relevant and capable of attracting the attention of viewers/readers.

Practical tips

As a result of the new tort, media organisations and journalists can take the following steps to protect themselves from liability:

1. Ensure that editorial review processes provide for an assessment of these new privacy risks.
2. Legal teams should be involved in the publication cycle early – particularly in respect of stories that involve high profile subjects or where you are unsure as to whether a story can be characterised as ‘news’.
3. Where possible, record/document editorial rationale in those circumstances where inherently private information may be published (to support public interest arguments in the event an interim injunction is sought).
4. Put arrangements in place which allow a quick response to complaints regarding invasion of privacy or applications for interim orders.
5. Provide training for your staff on the new tort and its implications for reporting practices.

HWLE is monitoring the case law as courts begin interpreting the new tort and can provide assistance to journalists and media organisations in respect of its practical application.

This article was written by Peter Campbell, Partner, Caitlin Surman, Special Counsel and Sarthak Prashar, Law Graduate.

¹ Privacy and Other Legislation Amendment Act 2024 (Cth) s2.
² sch 2 pt 2.
³ Privacy Act, sch 2, cl 7(1).
⁴ Privacy Act, sch 2, cl 7(1)(a).
⁵ sch 2 pt 2 cl 7.
⁶ Privacy Act, sch 2, cl 7(1)(b).
⁷ Privacy Act, sch 2, cl 7(5).
⁸ Privacy Act, sch 2, cl 7(1)(c).
⁹ Explanatory Memorandum, Privacy And Other Legislation Amendment Bill 2024 (Cth), 86 (Explanatory Memorandum).
¹⁰ Explanatory Memorandum, 86 & 87.
¹¹ Privacy Act, sch 2, cl 7(1)(d).
¹² Explanatory Memorandum, 87.
¹³ Privacy Act, sch 2, cl 7(6).
¹⁴ Explanatory Memorandum, 87.
¹⁵ Privacy Act, sch 2, cl 7(1)(e).
¹⁶ Explanatory Memorandum, 87.
¹⁷ Privacy Act, sch 2, cl 7(3).
¹⁸ Privacy Act, sch 2, cl 8(1) – (3).
¹⁹ Privacy Act, sch 2, cl 8(1)(a).
²⁰ Privacy Act, sch 2, cl 8(1)(b).
²¹ Privacy Act, sch 2, cl 8(2).
²² Explanatory Memorandum, 90.
²³ Explanatory Memorandum, 91.
²⁴ Privacy Act, sch 2, cl 7(7).
²⁵ Privacy Act, sch 2, cl 15(1).
²⁶ Explanatory Memorandum, 93.
²⁷ Privacy Act, sch 2, cl 15(2).
²⁸ Privacy Act, sch 2, cl 15(3).
²⁹ Explanatory Memorandum, 94.
³⁰ Privacy Act, sch 2, cl 7(2).
³¹ Privacy Act, sch 2, cl 9.
³² Privacy Act, sch 2, cl 12.
³³ Privacy Act, sch 2, cl 12.
³⁴ Privacy Act, sch 2, cl 12.
³⁵ Privacy Act, sch 2, cl 11.
³⁶ Privacy Act, sch 2, cl 10.
³⁷ The specific allegations made by the defendant against the plaintiffs were not repeated by the Court in its judgment.
³⁸ Same as above.