NSW privacy law and the new tort of serious invasion of privacy
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Professor Emerita, University of Sydney Law School
This paper explains and contextualises the operation of the new statutory tort for invasions of privacy. It explains the different dimensions of privacy, outlines the limits of existing common law and statutory protections, and presents the new tort’s elements, defences, remedies and exemptions. The paper analyses the extent to which the new action provides relief for breaches of an individual’s privacy, examining remedies under existing laws and the new tort. It considers how the new tort may apply to current privacy challenges such as data breaches, facial recognition and AI deepfakes, discussing implications for the development and operation of laws relating to privacy and data protection in NSW. Barbara McDonald is a Professor Emerita at the University of Sydney Law School. Barbara has written and spoken extensively on tort law, equity, remedies, media law and privacy law. She previously served as a Commissioner of the Australian Law Reform Commission, leading the Inquiry into Serious Invasions of Privacy in the Digital Era. She is a Fellow of the Australian Academy of Law and is an appointed member of the Judicial Commission of NSW. |
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Key points
- In 2025, the Australian Parliament introduced a new statutory tort enabling individuals to sue for serious invasions of privacy. The new tort will provide greater protection of individual privacy under Australian law and bring Australian law closer to that in other jurisdictions.
- The concept of privacy is multifaceted and encompasses personal privacy, information privacy, and communication privacy. Rights to privacy are rarely absolute and must be balanced against other rights and interests, such as freedom of speech and protection of the public.
- The common law, statutory data protection and criminal laws all play a role in protecting aspects of privacy, often incidentally to the protection of other interests, but previously there was no general civil right of action for invasions of privacy.
- The new tort is specifically targeted at serious and deliberate misuse of private information or intrusion into an individual’s seclusion, in situations where there is a reasonable expectation of privacy and where there is no countervailing public interest to justify the conduct.
- Exemptions for journalists engaged in collecting and publishing news and current affairs reduce the protection that the new law provides for individuals. Exemptions for law enforcement and other government agencies also prevent the new law protecting individuals from excessive or unlawful use of their powers.
- New technologies have enabled new ways for privacy to be invaded: hacking of databases; appropriation and use of images, including ‘deepfake’ images; facial recognition software; sophisticated surveillance devices. While previous laws and the new tort may remedy some of this conduct, lawmakers may also consider specifically targeted new laws.
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