Victoria Privacy Laws: Victorian Court Recognises Right To Privacy

In a landmark decision, Judge My Anh Tran recognised a new legal avenue for Victorians which will allow individuals to seek justice for invasions of privacy. This historic ruling awarded $30,000 in damages to the plaintiff, marking a significant shift in Australian privacy law. With increasing public awareness and debate on laws, breaches and a pending national bill, this case sets an important precedent for Victoria privacy laws.

Victoria Privacy Laws: The Case In Question

Lynn Waller (a pseudonym) filed a case against her father, Romy Barrett (a pseudonym), in the Victorian County Court. Lynn alleged that her father disclosed sensitive information about her mental health – information she had only shared during confidential counselling sessions and in private emails.

Traditionally, the only available legal remedy for privacy breaches was through the tort of "breach of confidence." However, as Judge Tran pointed out, this action primarily protects business and trade secrets and is ineffective in addressing the indignities suffered by individuals who have suffered serious privacy breaches.

Australian privacy law, prior to this case, was rooted in a 2001 High Court Case, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, where the question of a legal right to privacy was left open, sparking over a decade of debate.

Privacy vs Confidentiality: A Key Distinction

Judge Tran highlighted a critical difference between privacy and confidentiality stating that they are "inherently different concepts". While confidentiality involves trusting someone not to reveal sensitive information, privacy has now been defined as an individual's right to control their personal information. If someone discloses information about your life without permission, it's a direct violation of that control, regardless of whether the information disclosed is true or not.

Victoria Takes a Stand as Privacy Protections Expand Globally

Legal actions for privacy breaches exist in other similar legal jurisdictions such as New Zealand, the United Kingdom, Canada and the United States, making Judge Tran's decision a much-anticipated development in Australia.

Her ruling, whilst not going so far as to create a whole new tort, makes 'invasion of privacy' a distinct legal action under the overarching umbrella of the tort of breach of confidence. Judge Tran has additionally refused to provide elements for this action in order to allow courts to adapt these protections based on individual circumstances.

Peter O'Brien's, our Principal Solicitor's, thoughts on Victoria Privacy Laws:

Peter O'Brien

This decision represents a positive move in the law, and a growing awareness that people should be able to litigate when their right to privacy is infringed. I have advised and represented many people who have had their privacy seriously invaded, including for commercial gain by big corporate operations and media companies. It is clear that there has been both very limited redress available - including with both state and federal privacy commissions - and the uncertainty in the recovery of legal costs makes litigation for the individual against big corporations extremely risky. This decision represents a shift and an acceptance that the invasion of a person's privacy, and the obvious harm it causes is now recognised in the common law, even if it is not enacted upon by the legislators.

Pending Federal Privacy Legislation: A Potential Legal Milestone for Victoria Privacy Laws

This County Court ruling is even more notable in light of the proposed Privacy and Other Legislation Amendment Bill 2024.

If passed, this bill would create a new civil wrongdoing for serious invasions of privacy and provide Australians with the ability to sue for such actions.

Attorney-General, Mark Dreyfus KC, emphasised that the bill aims to give individuals "a clear right to seek legal remedy against people or entities who seriously invade their privacy" and ensure that the law is reflective of the challenges raised in an incredibly digital age.

Judge Tran and Mr. Dreyfus both stressed that technological advances heighten the need for privacy protections, making reference to breaches involving public figures like Taylor Swift and Meghan Markle.

Importantly, this new legislation, if passed, would enable individuals to seek justice without having to prove that they faced damage as a result of the privacy invasion. They only need to show that a serious invasion occurred, making it more accessible for individuals to defend their privacy rights.

Protections and Exemptions: Safeguarding Both Privacy and Public Interest

The proposed legislation on Victoria privacy laws includes exemptions for journalists, law enforcement and intelligence agencies. It strikes a crucial balance between privacy rights and press freedom.Notably, it was only on October 9th that the bill's second reading speech was agreed to.

Professor Edward Santow of UTS Law believes that Judge Tran's decision should drive Parliament to act swiftly, advocating that " Australians deserve justice for serious invasions of privacy."

Advocating for your Privacy Rights

If you believe your privacy has been seriously violated, the Civil Team at O'Brien Criminal and Civil Solicitors is ready to help. We're committed to defending the rights of Victorians facing privacy invasions and working tirelessly to hold those responsible, accountable. Contact us at (02) 9261 4281 or via email at info@obriensolicitors.com.au to discuss your case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.