A new kind of drama is set to unfold with changed privacy laws

An Australian scandal is like a sudden southerly on a clear summer’s day – unexpected, jarring and liable to leave everyone shivering in its wake. From political pitfalls to celebrity slip-ups and the ever-rumbling corridors of Parliament House, we are a nation that guards privacy with one hand and refreshes newsfeeds with the other.

Little wonder, then, that a show like Bridgerton – with its heaving corsets, whispered secrets and illicit entanglements – has a devoted fan base here. It’s not just the drama that captivates us, but the tension between the private and the public, discretion and spectacle.

Bridgerton captivates Australian audiences with the tension between private and public, discretion and spectacle.Credit: Liam Daniel/Netflix

While fans must wait until 2026 for the next episode, take heart “dearest gentle reader”: whispers among case-starved defamation lawyers suggest a new kind of drama is set to unfold. From Tuesday, a new statutory tort of privacy makes its debut on the Australian legal stage – and it’s expected to dance to a familiar tune.

Australians who suffer a serious invasion of privacy may claim up to $478,000 in damages and seek remedies including injunctions. As the age of unchecked intrusion draws to a genteel close, Lady Whistledown herself might remark that society’s most prominent figures will breathe easier behind their velvet curtains. Or so they may think.

As far back as 1960, US professor William Prosser identified four privacy torts: intrusion upon seclusion; public disclosure of private facts; false light portrayal; and appropriation of likeness. By 1977, all four were recorded in the US Restatement of Torts, a treatise issued by the American Law Institute. While not uniformly adopted there, intrusion and disclosure are well established – especially in celebrity-laden California.

Britain took longer to get there. In 1991, two Sunday Sport photographers posed as doctors to snap a British actor in his hospital bed. The Court of Appeal famously declared: “In English law, there is no right to privacy”. By 2000, however, the House of Lords changed course in Naomi Campbell v Mirror Group Newspapers. The action for “misuse of private information” was born. By 2014, it was recognised as a tort, and today, privacy suits in London have become de rigueur.

A lawsuit brought by British model Naomi Campbell created a legal precedent. Credit: AP

New Zealand recognised a general tort of privacy in 2004. By 2012 it recognised intrusion into seclusion as a standalone tort when a young woman was secretly filmed in the shower and awarded damages. That same year, Canada did likewise when a bank employee whose financial data had been improperly accessed received damages.

Australia, by contrast, wasn’t even at the races. It relied on defamation and breach of confidence – a patchy and much-criticised regime. This nearly changed a quarter-century ago in the Lenah Game Meats case. The chief justice urged better protection for privacy; the Australian Law Reform Commission echoed this in 2014. Lawyers even tried to open cracks left by the Lenah case, but these mostly faltered. In 2016, former High Court judge Michael Kirby said the inertia made Australia a “laughing stock”.

Only after numerous high-profile data breaches did the prime minister say: “hold my beer”! The new tort comprises a “greatest hits” compilation of international law – part American, part Commonwealth.

The Australian tort explicitly protects intrusion upon seclusion and misuse of private information – aligning with US, Canadian and New Zealand law. But it is unlike Britain. There, intrusion may inform a reasonable expectation of privacy and questions of relief, but it isn’t a standalone tort.

Here, plaintiffs must prove the defendant acted intentionally or recklessly – a fault standard from the US, echoed in NZ and parts of Canada. This contrasts with Britain’s human rights-influenced approach, which allows for unintentional “misuse” provided there’s been positive action by a defendant.

Australian plaintiffs must also show a reasonable expectation of privacy, meet a seriousness threshold, and prove privacy interests outweigh countervailing ones such as free expression. Unlike in the US or NZ, the conduct need not be “highly offensive”.

Courts will shape this new tort by drawing on overseas precedents while adapting them to Australia – a form of “progressive patriotism” perhaps. But it won’t be easy. Unlike Britain, Canada or NZ, Australia lacks a constitutional or statutory rights framework. The new tort might reflect our international obligations, but they are not directly enforceable as they are in Britain. Australian courts aren’t bound to act compatibly with the International Covenant on Civil and Political Rights. The contrary is true in Britain.

Complicating matters is Australia’s implied constitutional freedom of political communication, which may yet clash with the new tort. A High Court challenge remains a live possibility.

Will the new law open the floodgates? Possibly. Defamation claims have slowed due to reforms and high-profile losses. Britain experienced this after similar reforms to its defamation laws. There, libel went up in smoke and privacy suits rose from its ashes – fuelled in part by the tabloid culture there. Australia, lacking in that culture, may follow a more subdued path as in NZ or Canada.

One major factor in this will be the controversial exemption for journalists. If gathering or publishing private information for news, current affairs or documentaries, both journalist and media-employer are exempt from the new law. This carve-out – not recommended by the Australian Law Reform Commission and unprecedented in other common law systems – raises significant questions. In the US, although “newsworthiness” is a legitimate defence in a case concerning public disclosure of private facts, it is unlikely to be a defence in an intrusion case.

Then comes the question of whether this law is already playing catch-up. New threats – such as deepfakes and AI-generated content – can cause reputational harm without revealing real facts. These “false privacy” issues weren’t on the ALRC’s radar in 2014 and technically fall outside the tort’s scope. They may be better addressed by the other (neglected) Prosser torts: false light and appropriation of likeness. Whether they will be covered by the new law will depend on the circumstances – and, of course, the ingenuity of lawyers.

Matt Lewis SC is a barrister who specialises in media and privacy law in Australia and the UK. He has acted for and advised plaintiffs and defendants, including the publisher of this masthead.