Privacy Act 1988

SCHEDULE 2 - STATUTORY TORT FOR SERIOUS INVASIONS OF PRIVACY  

Note: See section 94A .

PART 2 - SERIOUS INVASIONS OF PRIVACY  

7   Cause of action  

7(1)    
An individual (the plaintiff ) has a cause of action in tort against another person (the defendant ) if:

(a)    the defendant invaded the plaintiff ' s privacy by doing one or both of the following:

(i) intruding upon the plaintiff ' s seclusion;

(ii) misusing information that relates to the plaintiff; and

(b)    a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances; and

(c)    the invasion of privacy was intentional or reckless; and

(d)    the invasion of privacy was serious; and

(e)    the public interest in the plaintiff ' s privacy outweighed any countervailing public interest.

7(2)    
The invasion of privacy is actionable without proof of damage.

Countervailing public interest

7(3)    
Without limiting what constitutes a countervailing public interest, any of the following matters of public interest may constitute a countervailing public interest:

(a)    freedom of expression, including political communication and artistic expression;

(b)    freedom of the media;

(c)    the proper administration of government;

(d)    open justice;

(e)    public health and safety;

(f)    national security;

(g)    the prevention and detection of crime and fraud.

Reasonable expectation of privacy

7(5)    
Without limiting the matters that the court may consider in determining whether a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances, the court may consider the following:

(a)    the means, including the use of any device or technology, used to invade the plaintiff ' s privacy;

(b)    the purpose of the invasion of privacy;

(c)    attributes of the plaintiff including the plaintiff ' s age, occupation or cultural background;

(d)    the conduct of the plaintiff, including whether the plaintiff invited publicity or manifested a desire for privacy;

(e)    if the defendant invaded the plaintiff ' s privacy by intruding upon the plaintiff ' s seclusion - the place where the intrusion occurred;

(f)    if the defendant invaded the plaintiff ' s privacy by misusing information that relates to the plaintiff - the following:

(i) the nature of the information, including whether the information related to intimate or family matters, health or medical matters or financial matters;

(ii) how the information was held or communicated by the plaintiff;

(iii) whether and to what extent the information was already in the public domain.

Seriousness

7(6)    
Without limiting the matters that the court may consider in determining whether the invasion of privacy was serious, the court may consider the following:

(a)    the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause to a person of ordinary sensibilities in the position of the plaintiff;

(b)    whether the defendant knew or ought to have known that the invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff;

(c)    if the invasion of privacy was intentional - whether the defendant was motivated by malice.

Untrue information

7(7)    
If the defendant invaded the plaintiff ' s privacy by misusing information that relates to the plaintiff, it is immaterial whether the information was true.