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

Sydney Morning Herald

3 hours ago

An Australian scandal is a 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.
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.
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 '.