By: Richard Leder and Isabelle Ferrali

Introduction

For decades, Australian privacy law was characterised as much by what it did not protect as by what it did. Unlike the United Kingdom, Australia had no generally recognised cause of action allowing an individual to sue simply because another person had invaded their privacy or misused their private information.

That changed on 10 June 2025.

The commencement of the statutory tort for serious invasions of privacy under Schedule 2 of the Privacy Act 1988 (Cth) represented a significant recalibration of Australian privacy law. Individuals can now bring proceedings where a defendant intentionally or recklessly intrudes upon their seclusion or misuses information relating to them, provided the invasion is serious, there was a reasonable expectation of privacy and the public interest in protecting the plaintiff’s privacy outweighs any countervailing public interest.

More than a year later, however, there remains remarkably little judicial guidance about how those concepts will operate in practice. Until the courts have the opportunity to consider the tort more comprehensively, questions remain about concepts at the heart of the new cause of action. For example, when does information attract a ‘reasonable’ expectation of privacy? What amounts to ‘misuse’? When is an invasion sufficiently ‘serious’? How will courts balance privacy against freedom of expression and freedom of the media? Critically for media organisations, how broadly will the journalist exemption operate?

As Australian courts begin answering those questions, there is an obvious source of comparative guidance. The United Kingdom has spent more than two decades developing a substantial body of law around the tort of misuse of private information. For example, Campbell v MGN Ltd [2004] UKHL 22 is a foundational authority for the UK privacy action. More recently, the decision in Lawrence & Others v Associated Newspapers Ltd [2026] EWHC 1637, involving Prince Harry and six other high-profile claimants, provides the latest example of how similar principles might operate domestically.

New cause of action

Australia’s new tort followed decades of debate about whether the common law should recognise privacy as an independently actionable right. The reform is deliberately broader than the existing framework under the Privacy Act. It creates a stand-alone cause of action and can apply to persons and organisations that may not otherwise be subject to Australian privacy principles.

There are two forms of the new cause of action:

• The first is an intrusion upon seclusion, directed principally to interference with a person’s physical privacy. It can include watching, listening to or recording a person’s private activities or affairs.
• The second, and potentially the more significant development for media organisations and publishers, is the misuse of information. Misuse can include collecting, using or disclosing private information about an individual.

A plaintiff must then establish that a person in their position would have had a reasonable expectation of privacy in all the circumstances. In assessing that question, an Australian court may consider matters including the means used to invade privacy, the purpose of the invasion, and the plaintiff’s attributes and conduct. In circumstances where the information was allegedly misused, the nature of the information and the extent to which it was already in the public domain may also be relevant. Intimate and family matters, medical information and financial matters are expressly identified as relevant considerations.

The conduct must also be intentional or reckless rather than merely negligent, and the invasion itself must be serious. In determining seriousness, a court may consider the likely offence, distress or harm to dignity caused to a person of ordinary sensibilities in the plaintiff’s position, together with the defendant’s knowledge and, in cases of intentional invasion, whether the defendant was motivated by malice.

Perhaps most significantly, the plaintiff must establish that the public interest in protecting their privacy outweighs any countervailing public interest. Those countervailing interests can include freedom of expression, freedom of the media, open justice, public health and safety, and the protection and detection of crime and fraud.

Therefore, the central question before the courts is: where does legitimate public scrutiny end and actionable intrusion into one’s private life begin?

A slow start in the Australian courts

Despite the significance attached to the reform, the anticipated flood of privacy litigation has not materialised.

One of the first matters that appeared likely to provide substantive guidance involved then Victorian Liberal MP and former professional tennis player Sam Groth and his wife, Brittany. In July 2025, the Herald Sun published a series of reports concerning when the couple’s relationship began. The Groths disputed the reports. Sam Groth pursued defamation claims, while Brittany Groth sued for serious invasion of privacy, common law breach of privacy and breach of confidence. This dispute raised precisely the sort of issues the new tort was expected to confront.

On one side was an asserted interest in privacy concerning intensely personal information about a woman’s teenage life and sexual relationship. On the other was the publisher’s contention that the reporting concerned a matter of public interest involving a senior politician with leadership ambitions. Sue Chrysanthou SC, senior counsel for the Groths, said there was no dispute Brittany Groth was not a public figure, and her life had been reported to everyone through the front page of the Herald Sun. Ms Chrysanthou added, “It is not something that should ever have been spoken publicly, let alone published on the front page of Melbourne’s most-read newspaper.” Matt Collins KC, on behalf of the Herald Sun, sought the early determination of the journalism exemption. The argument over that exemption was itself significant during the interlocutory hearing on 6 November 2025. The legislation exempts certain invasions involving the collection, preparation for publication or publication of “journalistic material” by journalists and specified associated persons. Journalistic material is defined broadly to include material having the character of news or current affairs, as well as commentary, opinion, analysis and editorial content relating to those matters.

Being famous, politically prominent or commercially influential plainly does not extinguish privacy. But public prominence can affect the balance. Before Australian courts reach that balancing exercise in many media cases, however, another question may arise: does the journalism exemption prevent the claim from proceeding at all? The Groth proceedings therefore presented an early opportunity for the Federal Court to consider the boundaries of that protection. When does reporting about the private life of a politician retain the character of journalism protected by the exemption? Does the political significance attributed to information transform otherwise private material into legitimate news? And to what extent should a court scrutinise the process by which a journalist verified the information before publication? Those questions were never answered.

The proceedings settled in November 2025. The Herald Sun published an apology acknowledging the toll the articles had taken on the Groth family and stating that it did not intend to suggest, and did not suggest, that Sam or Brittany Groth had engaged in wrongdoing. The offending articles were also removed. The settlement meant that a case widely regarded as an early test of the statutory tort disappeared before the Court could provide substantive guidance on its operation.

It is a recurring feature of media litigation: the cases capable of making the most interesting law are often precisely those with the strongest commercial and personal incentives to settle. That makes the recently commenced proceedings involving Bondi restaurateur Maurice Terzini particularly significant.

In July 2026, Terzini commenced proceedings against Nine and his former wife following reporting concerning his family and personal life. The litigation has been described as another potential test of Australia’s new privacy laws. The underlying reporting followed extensive media attention concerning allegations made against Terzini’s son, which his son denied, and questions about what Maurice Terzini knew of those allegations. Terzini himself was not accused of the alleged sexual assaults and had publicly disputed suggestions that he intentionally ignored violent behaviour or covered up issues within his businesses.

The proceedings again illustrate the terrain on which the new tort may ultimately be tested: the intersection between information that is undoubtedly personal, reporting said to concern matters of legitimate public interest, and the question of how far publishers can go in obtaining and disclosing information about people connected with the subject of an investigation.

If the matter progresses to a substantive judgment, it may provide considerably more guidance about how Australian courts will approach misuse of private information in a media context.

For the moment, however, the position remains untested. Australia has enacted a potentially powerful new privacy right, but there is still very little authority telling plaintiffs, publishers and practitioners how its most important concepts will be applied at trial.

Looking at other jurisdictions

That vacuum makes comparative jurisprudence particularly interesting.

The Australian cause of action is not identical to the UK’s tort of misuse of private information and UK authorities cannot simply be transplanted into Schedule 2. Australia’s statutory requirements, including seriousness, intentional or reckless conduct, the express public-interest element and the journalist exemption, must be applied according to the Australian legislation.

Nevertheless, there are obvious similarities. The established UK approach asks, first, whether the claimant had a reasonable expectation of privacy in the relevant information. If so, the court proceeds to balance the claimant’s privacy rights against the publisher’s freedom of expression. The similarity to the Australian framework is striking, particularly in relation to reasonable expectation of privacy and the balancing of privacy against competing interests.

In Campbell v MGN Ltd [2004] UKHL 22, supermodel Naomi Campbell brought proceedings against the publisher of the Daily Mirror after it revealed that she was receiving treatment for drug addiction through Narcotics Anonymous and published photographs of her leaving a meeting. Campbell accepted that the newspaper was entitled to reveal her drug addiction because she had previously publicly denied taking drugs, but argued that the additional details about her treatment and the accompanying photographs were private. By a 3–2 majority, the House of Lords agreed, finding that the publication went beyond what was necessary to correct Campbell’s public statements and amounted to a misuse of private information. The case became a foundational authority for the modern UK privacy action, establishing that the key question is whether a person had a reasonable expectation of privacy in the circumstances.

The most recent major decision provides an especially interesting lesson. On 7 July 2026, Mr Justice Nicklin delivered judgment in Lawrence & Others v Associated Newspapers Ltd [2026] EWHC 1637 (KB). The proceedings were brought by seven claimants: Baroness Doreen Lawrence, Elizabeth Hurley, Sir Elton John, David Furnish, Sir Simon Hughes, Prince Harry, the Duke of Sussex, and Sadie Frost. Their claims concerned alleged misuse of private information and, in some instances, breach of confidence arising from allegations of unlawful information gathering by Associated Newspapers, publisher of the Daily Mail and Mail on Sunday. The allegations concerned practices including the alleged use of private investigators and other forms of unlawful information gathering. Prince Harry’s claims concerned numerous articles about his private life, including reports about his relationships with Chelsy Davy and other women.

After an extensive trial, the claims failed. But the significance of the decision for privacy lawyers lies in why they failed. Nicklin J observed at [158]: “Largely, the parties’ dispute does not concern whether information alleged to have been obtained unlawfully was private or intrusive”. In other words, privacy was not the real battleground. Instead, the focus was the manner in which the information had been obtained. In particular, whether that information was the product of unlawful information gathering. Significantly, the court’s conclusion was that private information does not establish, in and of itself, that the information was obtained unlawfully. The broader principle emerging from the judgment: the private character of information and the means by which it was obtained are separate evidential questions.

Privacy and defamation

The new tort is likely to develop alongside defamation law, particularly in claims against publishers. But the interests protected by the two causes of action are fundamentally different. Defamation protects the truth. Privacy, as the name suggests, protects private information. That distinction produces an important practical consequence: truth is not a defence to a claim under the privacy tort. Indeed, the legislation expressly provides that where privacy is invaded by misuse of information, it is immaterial whether that information is true.

The interplay between defamation and privacy law will be particularly significant in high-profile disputes involving public figures and publishers. As canvassed above, not all publications are defamatory even if there is a serious invasion of privacy. Conversely, where reputational damage is weak, the new tort provides a valuable alternative. Where plaintiffs seek to claim both causes of action, it is worth noting that public interest from a privacy perspective may be disadvantageous from a defamation perspective (and vice versa). For example, in the context of sexual assault allegations where there has never been a successful prosecution, one might argue that from a privacy perspective, there is a public interest in exposing the behaviour. However, from a defamation perspective, where truth is a consideration, the fact that there has never been a prosecution (therefore the accused was not found guilty) may impact the available defences.

Waiting final judgment

The statutory tort has now existed for more than a year. Its architecture is detailed yet its practical boundaries remain largely untested. The first major trial will therefore matter enormously.

When it comes time, Australian courts will have to develop a body of principles suited to the language and structure of Schedule 2. Although, they will not be writing entirely on a blank page. The legislation itself invites a contextual inquiry into reasonable expectations of privacy, the nature of information, the conduct of the parties and competing public interests.

Until then, Australia’s new privacy tort remains a cause of action waiting, with bated breath, for its defining case.

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