Login
New privacy laws ‘unlikely’ to reduce rate of defamation litigation
Australia has enacted its long-awaited statutory tort, allowing serious invasions of privacy to be legally actionable. However, two partners warn that the new law still contains significant limitations.
Facebook
X
LinkedIn
After decades of judicial debate over whether the right to privacy should be formally recognised and protected, Australia’s long-awaited statutory tort for serious invasions of privacy came into effect on 10 June.
The Privacy and Other Legislation Amendment Bill 2024 (Cth), which passed both houses of Parliament late last year, is contained in Schedule 2 of the Privacy Act 1988 (Cth).
The introduction of the new tort enables individuals to pursue legal action against organisations or individuals responsible for intentional or reckless invasions of their privacy.
However, the new privacy tort includes significant limitations, with broad carve-outs for the media. News outlets, current affairs programs, documentaries, and related commentary are broadly exempt from its provisions.
Additionally, the tort incorporates a public interest exception, where freedom of expression is deemed to outweigh an individual’s right to privacy.
Clayton Utz commercial litigation partner Douglas Bishop emphasised that the new privacy tort does not replace defamation law, and the media will continue to benefit from significant legal protections.
“The media will retain significant protections, and plaintiffs alleging harm from public reporting will still need to pursue defamation, which has itself become more difficult after successive statutory reforms,” he said.
“Prior to the introduction of uniform defamation laws in 2005, the truth defence in some jurisdictions had an additional element which required media defendants to prove both truth and public benefit to successfully defend a publication. Since the 2005 reforms, that public benefit requirement no longer applies.”
Despite its limitations, Clayton Utz commercial litigation partner Lindsey Cregan highlighted areas such as online harassment, doxxing, and revenge pornography as instances where the new tort could prove particularly effective.
“This tort is likely to be significant in personal disputes involving the non-consensual publication of private information – think online harassment, doxxing, or revenge content,” she said.
“It may also have implications for private sector organisations where data breaches or disclosures occur in circumstances amounting to recklessness.”
Cregan also observed that the new law is likely to fuel a growing body of privacy litigation, with courts expected to develop a distinct line of jurisprudence around the tort.
“These changes are unlikely to reduce the overall volume of defamation litigation, obviously not against media entities. We anticipate a growing body of privacy-related litigation, especially in digital and consumer contexts,” she said.
“There’s scope for dual pleading in some cases, but more importantly, we’re likely to see the courts develop a new body of jurisprudence around this tort quite quickly.”