The statutory tort for the serious invasion of privacy, which was introduced as an amendment to the Privacy Act 1988 (Cth) (‘the Act’), commenced in June 2025. The amendment follows the recommendations contained in the Privacy Act Review Report issued by the Attorney-General’s Department, and seeks to respond to the modern era of technological advancements which presents increased risks and opportunities for serious and malicious breaches to individual’s privacy.
Individuals may now be able to bring an action for breach to their privacy where there was no previous avenue to do so. By way of example, a cause of action may arise due to the release of private images, online or public embarrassment and shaming, and the misuse of private information.
Cause of Action
A person (‘plaintiff’) has a cause of action in tort against another person (‘defendant’) if the defendant invaded the plaintiff’s privacy by either (or both) intruding the plaintiff’s seclusion, or misusing information relating the plaintiff. The plaintiff must then prove that:
(1) there was a reasonable expectation of privacy in all of the circumstances;
(2) the invasion of privacy was intentional or reckless;
(3) the invasion of privacy was serious; and
(4) the public interest in the person’s privacy outweighed any countervailing public interest.
A claim is actionable without proof of damage, allowing a person to obtain an injunction to prevent the continued abuse of sensitive information. As at time of posting this blog, the legislation has capped the award of damages at $478,550.
Kurraba Group Pty Ltd & Anor v Williams [2025] NSWDC 396
Kurraba Group Pty Ltd & Anor v Williams is the first published decision in which the amendment has been tested. In this case, it was alleged by the plaintiffs that the defendant had been on a “campaign of extortion” against them, which involved, relevantly, publishing the second plaintiff’s private wedding photographs. This, alongside other concerning conduct by the defendant, occurred in the context of the defendant privately demanding $50,000 from the plaintiffs in exchange for ceasing this conduct.
The plaintiffs filed an ex parte application seeking interlocutory orders to bring an end to the alleged defamation, intimidation, and breach of privacy. After a review of the material and oral submissions, the court was satisfied that there was a serious question to be tried in relation to the tort of privacy for the second plaintiff. Notably, the court accepted that the second plaintiff’s wedding photos were never intended to be made public. The photographs were misused by the defendant, who attempted to portray a suggestion of “moral delinquency and drunkenness as opposed to the sanctity of marriage.”
The court ordered injunctions to remove the website and online content and restrain any further publications.
Where to now?
The decision of Kurraba Group Pty Ltd & Anor v Williams has demonstrated how the reform has helped address the need for stricter and more active privacy laws, and can be used to protect against the misuse of images and sensitive information online in real time. The legislation will likely encourage more individuals to bring actions to protect themselves against serious invasions of privacy.
