The Art of Consent: Navigating Australia’s New Privacy Tort

The Art of Consent: Navigating Australia’s New Privacy Tort

Australia’s New Privacy Law: A Game-Changer for Creatives

This article expands on Sharon Givoni’s original piece for Frankie magazine, diving deeper into how Australia’s new statutory tort of privacy affects artists, photographers and creatives.

Until recently, Australia was one of the few Western countries where there was no standalone legal right to sue someone for seriously invading your privacy. That changed with the Privacy and Other Legislation Amendment Act 2024, which introduces a new cause of action for “serious invasion of privacy.” The law came into effect on 10 June 2025, and it’s a big deal — especially for creatives.

Until recently, Australia was one of the few Western countries where there was no standalone legal right to sue someone for seriously invading your privacy. That changed with the Privacy and Other Legislation Amendment Act 2024, which introduces a new cause of action for “serious invasion of privacy.” The law came into effect on 10 June 2025, and it’s a big deal — especially for creatives.

Artists, designers, filmmakers and photographers often work with real people. Their art may include portraits, private moments, personal messages or likenesses of others. But under this new tort, even well-intentioned art can result in litigation.

At Sharon Givoni Consulting, we work closely with creatives and small businesses to help them navigate the law without stifling their creativity. Our motto is “Turning Legalese into Legal Ease®”, and in that spirit, here’s what you need to know.

What Is this New Tort all about?

This new statutory tort, added as Schedule 2 to the Privacy Act 1988 (Cth), allows individuals to sue if their privacy is seriously invaded. It recognises two forms of invasion:

• Intrusion upon seclusion: This includes physical intrusion into someone’s private space or the recording of their private activities (e.g. secret filming).
• Misuse of private information: This covers the unauthorised use or disclosure of private data, such as text messages, personal photographs, or sensitive content.

To succeed in a claim, five key elements must be proven:

• The plaintiff had a reasonable expectation of privacy.
• The invasion was intentional or reckless (not merely negligent).
• The invasion was serious.

The public interest in the plaintiff’s privacy outweighs competing interests such as freedom of expression.

The defendant was not exempt under the Act.

Significantly, no financial loss is required. Emotional distress alone can justify a claim.

Real-World Examples for Creatives

Case Study 1: The Street Photographer
A Melbourne-based street photographer exhibits a photo of a man sitting alone in a park, his face full of raw emotion. The work is praised. However, the man recognises himself and says the image was taken during a deeply private moment following the death of a loved one. He sues.

Could a court find that, despite being in public, the subject had a reasonable expectation of privacy given the emotional context? And if so, what does that mean for the photographer, especially if no consent was obtained?

Case Study 2: The Textile Designer
A textile designer draws inspiration from candid beach photos and incorporates a stranger’s silhouette into a printed fabric range. Though the figure is abstract, the original photo was taken from a private, low-traffic bay and includes distinctive tattoos. A friend of the person in the image recognises them. The design is later featured on swimwear sold online.

Could a court find this to be a misuse of private information, even though the person wasn’t named? Does artistic transformation offer enough protection if the source image was obtained or used without consent?

How is this different from the old way that things worked?

Previously, creatives had to rely on defamation, misleading conduct, or breach of confidence law. The new tort fills the gap where the use of true but private material was not otherwise actionable.

Some of the main points about this new law

In defamation law, the focus is on false statements. But does this new tort require the information to be untrue?

Breach of confidence typically depends on whether the information was shared in confidence. Could this new cause of action apply even when the information was never confidential?

Copyright protects creative works. But is this new law more about safeguarding personal dignity, rather than just creative expression?

And if things go wrong?

Courts now have broad powers to:

• Award damages for emotional harm, capped at $478,550 (or the defamation cap, whichever is higher)
• Issue injunctions to stop the publication or display of the work
• Order the artist to apologise or destroy/delete the material

This means creatives could face serious consequences if a work is found to violate someone’s privacy.

Can you defend yourself?

Yes. Key defences include:

• Consent: The person agreed to the use
• Public interest: The work contributes meaningfully to public discourse
• Legal authority: The act was authorised by law (less likely in creative fields)
• Exemptions: Journalists, government agencies, law enforcement bodies, and individuals under 18 have specific carve-outs

But remember: artistic merit alone may not be enough. Courts will consider it, but it must outweigh the privacy interest.

Next step for designers to take

Here are 5 tips to reduce your legal risk:

1. Get Clear Consent: If your work includes someone’s face, voice, personal data, or image—especially in a sensitive context—get it in writing. An email, release form, or text is fine.
2. Think Context: Was the subject in a vulnerable state? Was the moment obviously private? Use your empathy—courts will.
3. Blur or Anonymise: Even if you use someone as inspiration, blur features or change key details unless you have permission.
4. Avoid Recklessness: If you know someone might object, don’t just “hope they don’t see it.” Recklessness can trigger liability even without bad intent.
5. Talk to a Lawyer: Especially before exhibiting, publishing, or going viral. We can review your content and provide peace of mind.

We expect early cases in 2025 and 2026 will define the boundaries. Until then, designers and artists must tread carefully.

At Sharon Givoni Consulting, we offer:

• Consent and release templates
• Legal reviews of artwork
• Risk advice tailored for creatives
• Representation if things go wrong
• Training for staff

As always, we believe you can be creative and legally protected. That’s the balance we help you strike.

Turning Legalese into Legal Ease®.

For the original version of this article in Frankie Magazine, click here.

Further Reading

Do our laws on photography in public spaces need to be changed?
https://www.australianphotography.com/news/do-our-laws-on-photography-in-public-spaces-need-to-be-changed – While Australian use to permit taking and publishing images of people in public spaces without their permission, this is now different because of the statutory tort of serious invasion of privacy. The new law, now in force lets individuals to sue for intentional or reckless privacy invasions—marking a significant shift in how consent, dignity, and artistic or public expression are legally balanced in Australia.

---

Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.