Accused of Invasion of Privacy? What to Do in the First 72 Hours

Being accused of invasion of privacy is disorienting, particularly if you believe your conduct was lawful, proportionate, or simply ordinary. Since 10 June 2025, when the statutory tort for serious invasion of privacy commenced under Schedule 2 of the Privacy Act 1988 (Cth), a single individual can bring court proceedings against you over surveillance, tracking, or the publication of private information. If you have been accused of invasion of privacy, what you do in the next 72 hours will shape the entire matter.

This is general information, not legal advice. Every claim turns on its own facts, and the early decisions are best made with a lawyer who understands the new tort and the defamation concepts it borrows from.

First: Understand What You Are Actually Facing

The statutory tort is separate from the Australian Privacy Principles and from the Office of the Australian Information Commissioner complaint pathway. The new tort allows an individual to sue any person, corporation, or government body, whether or not that defendant is an APP entity. The plaintiff does not need to prove financial loss, and truth is not a defence. Those features make early, careful handling more important, not less.

Two pathways are alleged: intrusion upon seclusion (surveillance, tracking, hidden cameras, eavesdropping, physical intrusion) and misuse of personal information (doxxing, disclosure of private health or financial records, non-consensual sharing of images). Identify which pathway the accusation concerns. It determines which defences and exemptions may apply.

Days One to Three: A Defendant's Checklist

Preserve everything, delete nothing

Do not wipe devices, cameras, message threads, or cloud backups. Do not "tidy up" footage, emails, or logs. Evidence that disappears, even innocently, invites an inference that it was unfavourable. Preserve the material in its original form and record who had access to it. If surveillance footage exists, secure it and note when it was captured and why.

Do not contact the complainant directly

Apologies, explanations, and denials sent directly to the person who has accused you can be quoted back at you. Under Schedule 2, an apology does not amount to an admission of fault or liability. Any communication should be routed through your lawyer. This is also true of social media. Do not post about the dispute, and do not respond to posts about it.

Identify your potential exemption or defence early

Exemptions and defences operate differently, and the distinction matters. Exemptions sit in Part 3 of Schedule 2 and can be determined before trial on application, which may resolve the matter without the cost of full proceedings. Defences sit in Part 2 and are raised and determined at trial. Possible exemptions include journalists and their employers, government agencies acting in good faith, law enforcement and intelligence bodies, and persons under 18. Possible defences include lawful authority, consent, necessity, defence of persons or property, and certain defamation-related defences where publication is involved. Ask your lawyer whether you have a pre-trial exemption application available, because it may end the claim early.

Prepare for an urgent injunction

If the complaint concerns publication or ongoing surveillance, the plaintiff may seek an injunction to restrain it. Where an injunction would restrain publication, the court must have particular regard to the public interest in publication. If you have evidence of a countervailing public interest, gather it now. Delay in responding to an injunction application can be costly.

Assess the seriousness threshold

Not every invasion is actionable. Clause 7(1)(d) requires the invasion to be serious. Whether the conduct was intentional, whether you knew or ought to have known it would offend or distress the plaintiff, and whether the plaintiff suffered damage are all relevant. If the conduct was minor, incidental, or proportionate, that is a line of challenge worth raising early.

Check your calendar

Limitation periods are strict: one year from the plaintiff's awareness of the invasion, or three years from when it occurred, whichever is earlier, with a maximum extension to six years. The clock is ticking for the plaintiff and it may have effectively run out.

Common Defendants

The defendant pool is broad. Employers facing claims about workplace monitoring should note that the statutory tort applies to the handling of employee records, unlike the Australian Privacy Principles, which contain an employee records exemption. Monitoring that is disclosed, proportionate, and conducted for a legitimate business purpose may be defended on grounds of implied consent, lawful authority, or because the plaintiff had no reasonable expectation of privacy. Our article on employer privacy risk sets out the practical implications.

Landlords and property managers accused of failing to remove or disclose surveillance devices face a different analysis. Individuals accused of surveillance by a former partner or neighbour, where the conduct occurred from their own property or on a reasonable basis, may have strong arguments. Private investigators and security professionals conducting lawful surveillance should document their authority and scope immediately. Media organisations, bloggers, and content creators should check whether the journalist exemption applies, because it is narrow and only covers professional journalists subject to a code of practice. Social media users, influencers, and citizen journalists are not covered. More detail is available in our guide to privacy tort exemptions.

Where State Surveillance Law Fits

State surveillance legislation creates criminal offences, not civil remedies. You cannot be sued under the Surveillance Devices Act, but a breach of state law may support or strengthen a tort claim against you. In Victoria, optical surveillance offences exclude activities carried on outside a building. In NSW, the optical surveillance offence generally requires trespass or interference with property, and penalties reach five years imprisonment. In Queensland, the Invasion of Privacy Act 1971 covers listening devices only, leaving camera, tracking, and data surveillance unregulated in the civilian context. If the accusation touches on state law, your lawyer needs to assess both regimes together.

Get Advice Before You Respond

The first 72 hours are about preservation, not persuasion. Resist the urge to explain yourself to the complainant, and put a lawyer between you and the dispute. A confidential initial assessment can identify whether you have a pre-trial exemption, a statutory defence, or a basis to negotiate an early resolution, including an offer of apology that does not constitute an admission of fault.

If you have been accused of invasion of privacy, or you have received an injunction application, contact Sutton Laurence King Lawyers or call to arrange an urgent assessment. We act for defendants as well as plaintiffs, and we can respond to injunction applications at short notice. Where the claim also involves reputational harm through publication, our colleagues at defamationlawyer.au can advise on the overlap.

This article provides general information only and is not legal advice. It does not create a solicitor-client relationship. You should obtain advice about your own circumstances before taking or refraining from any action.