The Significance of the Privacy and Other Legislation Amendment Bill 2024 and the Tort for Serious Invasion of Privacy
The Privacy and Other Legislation Amendment Bill 2024
As we continue to navigate an increasingly digital and globalised world, protecting personal information has become more important than ever. In a significant step forward for data protection, the Australian Government has introduced several reforms to the Privacy Act 1988 (Cth). Introduced through the Privacy and Other Legislation Amendment Bill 2024 (“the Bill”), these changes aim to strengthen the privacy rights of individuals and enhance the way personal information is handled across Australia.
A key reform in the Bill is the establishment of a new statutory tort for serious invasions of privacy. This new statutory tort will protect the privacy of individuals with respect to their personal information to a greater extent.
Key Reform 1: A New statutory Tort for Serious Invasions of Privacy
Under Part 2, clause 7 of the Bill, anyone who is affected by a serious invasion of privacy must prove four (4) elements. Let’s break down these elements to understand how they apply to real world scenarios:
First Element: Intrusion upon seclusion or misuse of information
The Defendant must have invaded the Plaintiff’s privacy by doing one or both of the following:
(a) Intruding upon the Plaintiff’s seclusion; and/or
(b) Misusing information that relates to the Plaintiff.
Intrusion Upon Seclusion: What does it Mean?
An intrusion upon seclusion occurs when someone intentionally invades or disturbs the private space of activities of another person without their consent. The invasion of privacy must be conducted in a way that would be deemed objectionable by a reasonable person. An example of this is a situation where a person spies on a celebrity, such as Rebel Wilson, while she’s practising yoga in the privacy of her home. Even if no personal information about Rebel is shared or made public, simply observing, recording or listening to her private activities without her consent could satisfy the intrusion upon seclusion requirement.
The key factor is proving the unwelcome invasion into the Plaintiff’s personal or private activities. It is not important to prove whether the Defendant has physically trespassed on the property or used any technological means (such as surveillance cameras or listening devices).
Misuse of Information: When Personal Data Becomes a Legal Issue
The second type of invasion occur when a Defendant misuses information that relates to the Plaintiff. This can happen when personal details, private acts of the individual, or sensitive data are disclosed, used or shared without the individual’s permission or in a way that harm their privacy interests. For instance, if an individual or entity gather personal information about another person and uses it for an unauthorised purpose – such as selling it to third parties or using it to embarrass the person publicly – this would constitute a misuse of that information. Notwithstanding this, the value of seclusion and private space do not depend on whether the private activities are eventually exposed to the public.
A Real-World Scenario: Rebel Wilson and the Right to Seclusion
Imagine a situation where someone has secretly recorded Rebel Wilson performing yoga in the privacy of her home without her knowledge or consent. Even if no footage is ever released to the public, the mere act of watching or recording her private moments could qualify as an intrusion upon her seclusion. In such a case, Rebel Wilson could have a valid cause of action in tort for the invasion of her privacy.
Element Two: A reasonable Expectation of Privacy
The second element of the statutory tort of privacy is that a reasonable person in the position of the Plaintiff would have had a reasonable expectation of privacy in the circumstances. This means that, in order to claim an invasion of privacy, the Plaintiff must show that he or she had a legitimate expectation of privacy under the circumstances where the invasion of privacy have occurred. For instance, if you are engaging in personal activities such as practising yoga at home, then you can reasonably expect that no one is watching or recording you without your permission. The law recognises that certain spaces – like your home – are inherently private and being spied on or recorded without consent in these contexts would be deemed as an unreasonable violation of your privacy.
Element Three: The invasion of privacy was Intentional or Reckless
The third element of a serious invasion of privacy claim require the Plaintiff to prove that the Defendant’s actions were intentional or reckless. This means the person who has invaded your privacy must have consciously chosen to do so or has acted recklessly, with a disregard for the likely consequences. According to section 5.4 of the Criminal Code 1995 (Cth), recklessness occurs when an individual is aware that their actions will pose a substantial risk to someone’s privacy but chooses to proceed anyway. In the case of Rebel Wilson, imagine someone who is deliberately spying on her as she practices yoga at home. If this person was aware that their actions would likely cause distress or harm to Rebel, but chose to continue filming her anyway, then this would be considered reckless. The invasion was not a careless mistake but a conscious or reckless disregard for her right to seclusion. Whether the Defendant has acted with the intent to harm or recklessly ignored the risks to Rebel’s privacy, the law holds such actions accountable.
Element Four: The invasion of privacy Was Serious
The fourth element of a serious invasion of privacy claim require that the invasion was serious in nature. Not every breach of privacy qualifies for legal action; the invasion must be significant enough to warrant redress. This may include highly intrusive actions, such as the release of unauthorised personal information that cause substantial emotional or reputational damage. In the case of Rebel Wilson, even if the footage of Rebel practising yoga at her home was not made public, the invasion could still be considered serious due to the extreme violation of privacy space. The law recognises that being watched or recorded in such an intimate setting, without consent, constitutes more than just an inconvenience – it can cause distress, anxiety and a breach of trust. Therefore, in this example, the invasion of Rebel’s privacy will be deemed serious because the breach violates her personal boundaries in a way that goes beyond what is acceptable in society.
It is also worth noting the defences of the serious invasion of privacy, which include the following:
1. Lawful authority;
2. Consent;
3. Incidental to the exercise of a lawful right of defence of persons or property;
4. Necessity;
5. Absolute privilege;
6. Publication of public documents; and
7. Minors who are under the age of 18.
The purpose of these four elements is to strike a balance between protecting individual privacy and their freedom. By requiring Plaintiffs to meet these criteria, only serious and significant invasions of privacy are addressed through legal action to prevent frivolous or exaggerated claims.
Revised Remedies
Under the proposed changes, State Courts will have the authority to award a variety of remedies in privacy invasion cases, including damages for non-economic loss such as emotional distress. In exceptional circumstances, exemplary or punitive damages may also be awarded to punish the Defendant for particularly egregious behaviour. However, it is important to note that the claim must be filed within one year of the Plaintiff becoming aware of the privacy breach, and no more than three years after the invasion occurred. For claims involving non-economic loss or exemplary damages, the maximum amount that can be awarded is fixed at $478,550.00, providing a clear limit on the potential compensation. Other statutory bodies also have powers to respond to complaints about invasion of privacy.
What will DML do for you?
At De Marco Lawyers, our experienced lawyers understand the complexities of privacy law in Australia. We can provide you with legal guidance on data protection and privacy laws in Australia. With data breaches on the rise, we will ensure that your rights are being protected.
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