Impact on photography of new laws on "serious invasions of privacy"

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The Commonwealth Privacy Act has been amended to create a statutory tort for serious invasions of privacy (a tort is a non-criminal act of wrongdoing). The amendment postdated the 2024 Victorian County Court case of Waller v Barrett. It remains to be seen how higher courts will treat the case precedent, and more generally what courts will make of the statutory amendment. However, most photography should not be impacted.

New legal remedy for serious invasions of privacy

More than a decade ago, an article on photography and the law, published on our website, triggered a stream of questions. Most concerned the lawfulness of the taking, or subsequent use, of photographs (or video images).

Of these questions, substantial numbers were about the invasion of privacy which might be involved when someone takes a photograph of some other person; or of their family, friends or property.

Many responses to questions of this kind included an assertion that, in Australia, there is no specific legal remedy for invasion of privacy; and certainly not of the kind relating to the taking and use of photographs.

Prior to recent developments in the law, this was true.

However things have now changed somewhat. No longer can it be defensibly said that there is no legal remedy in Australia for someone whose privacy has been invaded.

To explain, it's necessary to examine a couple of underlying concepts.

What is "privacy"?

Whole books have probably been written about this, but Louis Brandeis, an Associate Justice of the United States Supreme Court for more than thirty years in the first half of the twentieth century, memorably described the right to privacy as "the right to be left alone". Despite its memorability, though, it's not really a definition.

This may of course be because privacy is a generally well understood notion. To paraphrase the well-worn expression "I don't know much about art, but I know what I like"; few people might be able to define "privacy" articulately; but most would know, only too well, when their own privacy has been invaded.

Couple this with that word beloved of lawyers - "reasonable" - and there is a fertile field for debate and litigation.

What is a "legal remedy"?

The two changes discussed here are quite different in nature: one is an act of a parliament; the other a decision of a court. However the stimulus for both has been the lack of a remedy for invasion of privacy in Australia.

The fact that something might be accurately described as being "against the law" does not, in and of itself, mean that an aggrieved person can march off to a court or tribunal and demand that it do something for them - that is, give them a remedy.

A remedy is a response, provided by a judicial system, to a person affected by a wrong. Some wrong conduct is criminal in nature, but these are serious wrongs. With these the state - meaning an agency of government of some kind - is the entity for dealing with criminal wrongs, or crimes, through the law enforcement and criminal justice systems.

The other kind of wrong is a civil wrong - a "tort". The common law, and legislation, recognise torts.

A person who has suffered harm in a certain kind of way - for example, physical injury because of the negligent conduct of another person (eg in a motor vehicle crash); or reputational damage because of something said or written by someone else (defamation) - can approach a court seeking a remedy which, if granted, is most commonly monetary compensation.

Until recently, however, a claimant had no right to approach a court asking for a remedy for a breach of privacy.

Privacy Act amended to create statutory tort for serious invasions of privacy

Two things have changed.

One is that the Victorian County Court recognised a new cause of action (ie a valid legal basis for taking someone to court) in its decision in Waller (A Pseudonym) v Barrett (A Pseudonym) [2024] VCC 962, although declining to say whether it was a tort, or instead arose from equity.

(The last few words of the preceding paragraph will probably make little sense to people who aren't legally trained; and full explanation is beyond the scope of this item. However both references derive from the history of the English legal system. The underpinning philosophy of the common law - essentially the law handed down by decisions of courts, including the law of torts - was that, much as in TV's X Files, the law was out there somewhere, and judges simply had to find it. In theory, they did so largely by distilling meaning from what other courts had said about comparable circumstances. "Equity" was a quite different thing, and not what that word commonly means today. The courts of equity were originally a system operating in parallel to the common law courts, originating in religious courts, and aimed at providing justice where the rigidity and deficiencies of the common law courts produced an unfair result.)

The other is that a tort has been created by legislation. The Commonwealth Privacy Act 1988 has been amended so as to create a statutory tort for "serious invasions of privacy", by adding a Schedule 2 with this title.

Waller v Barrett gives rise to legal remedy for serious invasions of privacy

This case is unlikely to have any bearing on the situations faced by the overwhelming majority of people who submit questions about photography and the law and, more to the point, photography and privacy.

In Waller, deeply intimate details of an estrangement between a father and a daughter were published in major print media outlets, on TV, and in a book. The estrangement was the end result of events triggered by a brutal attack on the father by his then wife, as a consequence of which she was convicted of attempted murder.

True it is that this case is a precedent providing a basis for someone asking a court for a remedy for invasion of privacy arising out of the publication and/or distribution of a photograph; but while there may have been some publication of photographs, the privacy issue was, obviously, based on details of a familial estrangement stemming from seriously traumatic events.

Elements a court needs to establish

The notion of seriousness is indeed to be found in the statutory tort. Briefly, under clause 7 of Schedule 2 referred to above, the "elements" of the tort (the things which need to be established for a court to find in favour of a claimant) are that:

the claimant had a reasonable expectation of privacy,
the invasion of privacy was intentional or reckless,
the invasion of privacy was serious, and
the public interest in the claimant's right to privacy outweighed any other kind of public interest.

(As a matter of general legal usage, an act is "reckless" if the person knows of a possible risk but is indifferent to it. The word is defined slightly differently in Commonwealth legislation, to mean the taking of a risk despite the person knowing that taking the risk is unjustifiable.)

Impact of new laws yet to be tested in higher courts

First, and most importantly, it's hard to know at this point what these two developments actually mean for anyone, not simply people who take photographs, or those of whom photographs are taken.

Almost all legislative enactments and amendments contain wording which is susceptible of interpretation in different ways. Here, most obviously, these include "reasonable expectation" and "serious".

As has been pointed out, "privacy" itself is hard to define. The fact that the Privacy Act has been around for over thirty-five years doesn't mean much: it's in fact concerned mainly with a fairly narrow aspect of privacy, namely the use and security of personal information.

Lawyers generally take the view that it is difficult, immediately following the enactment of a provision containing key words which might be interpreted in differing ways, to say with confidence what the impact of the provision might be, until the words or phrases have been interpreted by courts in cases that have come before them.

As to the tort recognised in Waller, this decision was made by the Victorian County Court, which, with no disrespect to it, is not near the top of the hierarchy of courts.

There are earlier decisions of more senior courts that have delicately avoided pronouncing on the possible emergence of a new tort, so the question remains as to how courts higher in the hierarchy will treat Waller.

This may be complicated by the possibility that, by contrast with the situation when Waller was argued, in future cases the statutory tort will be available.

Possible consequences for photography of new laws on serious invasions of privacy

While most questions received by our website (including those involving privacy issues) do not contain a lot of detail, the bulk of situations described probably would not pass the "seriousness" test.

This is of course not universally true: one question which comes to mind involved an ex-partner of the enquirer, in the aftermath of the break-up, taking photos of dirty dishes in the kitchen during a contact visit.

In the view of the enquirer, the partner intended to use the photographs to her detriment in proceedings about custody of the children, to portray her as an unfit carer.

This example underlines what has been frequently said, in answering questions, namely that the important issue in relation to photographs is not the circumstances of their taking, but the use to which they are put.

Most photography unaffected by new laws on serious invasions of privacy

Answers to questions which have been asked over a decade or more would not be changed much by the two developments in the law discussed in this item. The possibility of a remedy for an invasion of privacy does change things; but it doesn't change the fact that, if you take a photograph, you should think about where you are; whether any permission is required; and what you plan to do with the photo.

If you are in any doubt, remember that answers given here are not legal advice. Apart from anything else, a lawyer will need much more detail to provide proper legal advice than can be included in a brief question.

However it's clear that there is a lot of interest in the way the law treats an activity in which, even before the advent of mobile phones with cameras, almost everyone in the community has engaged.

And although the law is typically slow in responding to changing community circumstances and expectations, the way in which the law does, eventually, respond can be seen in the developments discussed in this item, and its predecessors.