The Tort of Invasion of Privacy
In June 2025, a tort of invasion of privacy commenced under Schedule 2 of the Privacy Act 1988. This page outlines the tort of invasion of privacy, the defences that are available and the exemptions that apply.
Legislation
The tort of invasion of privacy is set out in Schedule 2 of the Privacy Act 1988.
What is the tort of invasion of privacy?
Under the Schedule, a person has a cause of action if another person invaded their privacy by:
- intruding on their seclusion or misusing their information; and
- it happened in circumstances where the person had a reasonable expectation of privacy; and
- it was intentional or reckless; and
- it was serious; and
- the public interest in the person’s privacy outweighs any opposing public interest.
A person has a cause of action for this tort regardless of whether they have proof of damage.
What is seclusion?
Intruding upon a person’s seclusion means entering their space (physical or digital) in a context where they have a reasonable expectation of privacy. Examples include secretly recording someone in a bedroom, bathroom, or private office; accessing a person’s private messages or emails; or using a drone to film someone through their window.
What is a reasonable expectation?
The legislation states that the factors the court may consider in determining whether the plaintiff had a reasonable expectation of privacy in all the circumstances include the following matters:
- How their privacy was invaded
- For what purpose their privacy was invaded
- The plaintiff’s personal attributes such as age, occupation or cultural background
- The plaintiff’s behaviour, such as whether they invited publicity or showed the desire for privacy
- If there is an intrusion upon the plaintiff’s seclusion alleged, where this intrusion occurred
- If the misuse of information relating to the plaintiff is alleged, the nature of that information, how it was held or communicated, and whether and what extent it was already in the public domain
What is serious?
When determining whether the alleged tort was serious, the court may consider the following factors:
- How much offence, distress or harm to dignity the invasion of privacy was likely to cause to the plaintiff.
- Whether the defendant knew or ought to have known that the invasion of privacy was likely to cause offence, distress or harm to dignity.
- If the invasion of privacy was intentional, whether it was malicious.
Opposing public interest concerns
A court may find that the public interest in the plaintiff’s privacy is outweighed by the public interest in other matters including freedom of expression, the proper administration of government, freedom of the media, national security, open justice, the prevention and detection of crime or public health and safety.
Defences
If action is taken against a person for serious invasion of privacy, there are a number of defences the person can rely on. These are set out in section 8 of the Schedule, and summarised below.
Lawful authority
It is a defence if the invasion of privacy was required or authorised under law or under an order of a court or tribunal.
Consent
It is a defence if the invasion of privacy was consented to by the plaintiff or somebody who had lawful authority to consent on their behalf.
Necessity
There is a defence available if the defendant reasonably believed that their actions were necessary to avert or lessen a serious threat to the life, Health or safety of a person.
Defence of persons or property
It is a defence if the invasion of privacy occurred in the exercise of a lawful right of defence of a person or property and was proportionate, necessary and reasonable.
Justification
If the invasion of privacy involved publishing information related to the plaintiff, it is a defence if the publication was justifiable on the basis of absolute privilege, publication of public documents, or fair report of proceedings of public concern.
Exemptions
When the court is hearing a proceeding in relation to invasion of privacy, it may determine whether an exemption applies at any stage. The court might do this at its own initiative or on the application of a party.
Exemptions apply in relation to:
- journalists reporting on journalistic material
- agencies and state and territory authorities (and their staff) acting in the performance of their functions and the exercise of their powers
- law enforcement bodies
- intelligence agencies
- persons under 18
Remedies
If the court finds that the defendant is guilty of invasion of privacy, it may order any of the following remedies:
- Damages for non-economic loss or aggravated damages of up to the statutory cap (currently $478,550), or the maximum amount of damages that would be affordable in defamation proceedings
- An injunction
- An order requiring the defendant to give an apology to the plaintiff
- A correction order
- An order that any material in the defendant’s possession that is related to the invasion of privacy be destroyed or be delivered to the plaintiff
- A declaration stating that there has been a serious invasion of privacy.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.