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Someone Recorded You Without Permission? Here Is What the Law Allows

Since 10 June 2025, Australian law provides a civil right of action for serious invasions of privacy, including covert recording.

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Civil remedies for unauthorised recording

If someone has recorded you without your consent, you may now have a civil cause of action under Schedule 2 of the Privacy Act 1988 (Cth). The statutory tort for serious invasion of privacy commenced on 10 June 2025. It is the first general civil remedy for privacy invasion in Australian law.

Before this legislation, state surveillance laws created criminal offences but no right for the person recorded to claim compensation. You could report the conduct to police, but you could not sue the person who recorded you. That gap is now closed.

The cause of action has five elements. If all five are met, you are entitled to remedies including damages (the total of non-economic loss and any exemplary damages is capped at approximately $478,550), injunctions to restrain further recording, and orders for destruction of the recording. You do not need to prove you suffered financial loss. The tort is actionable per se.

If you want to speak with a privacy solicitor about your situation, our confidential initial assessment is available for a fixed fee of $770.

The Five Elements of the Cause of Action

Each element must be established. Here is what the court will consider.

Legal scales representing cause of action elements

Element 1: An Invasion of Privacy by Intrusion Upon Seclusion

<p>Recording someone without consent falls within the first pathway of the tort: intrusion upon seclusion. This covers conduct that physically or electronically intrudes into a person's private space or affairs. Covert audio recording, hidden video cameras, screen capture of private communications, and recording in spaces where a person has a reasonable expectation of privacy all fall within this category.</p><p>The tort also covers a second pathway, misuse of personal information, which may apply if the recording was then shared or published. Both pathways can arise from the same conduct. If someone recorded you and then distributed the recording, you may have claims under both.</p>

Various recording devices and surveillance equipment

Elements 2 and 3: Intentional or Reckless Conduct, and Reasonable Expectation of Privacy

<p>The invasion must have been intentional or reckless. An accidental recording, or recording that occurred through genuine carelessness with no awareness of the risk, is not sufficient. However, recklessness is a lower bar than many people assume. If the person recording you knew there was a substantial risk they were invading your privacy and went ahead anyway, that is reckless.</p><p>You must also show that a reasonable person in your position would have had a reasonable expectation of privacy in the circumstances. Recording inside your home, in a private office, in a bathroom, or during a confidential conversation will almost always satisfy this element. Recording in a public street is harder, though not impossible depending on the circumstances.</p>

Legal remedies and compensation representation

Elements 4 and 5: Seriousness and the Public Interest Balance

<p>Not every unwanted recording gives rise to a claim. The invasion must be serious. The court will consider factors including whether the recording was deliberate, whether it captured intimate or sensitive content, whether the person recording knew it would cause distress, and the context in which it occurred. A single brief recording in ambiguous circumstances may not meet the threshold. Sustained covert surveillance, recording in bedrooms or bathrooms, or recording private medical or legal consultations will be difficult for a defendant to characterise as anything other than serious.</p><p>Finally, the court must weigh your privacy interest against any countervailing public interest. Legitimate whistleblowing, the prevention of crime, and freedom of expression may be relevant. In most cases involving covert recording of private individuals in private settings, the balance favours the person recorded.</p>

The Clock Is Ticking

You may have as little as 12 months from the date you became aware of the recording to commence proceedings. The limitation period under the statutory tort is strict: one year from awareness or three years from occurrence, whichever is earlier. Do not delay.

Why the Statutory Tort Changes the Position

Before 10 June 2025, individuals who were recorded without consent had limited civil options. The new law fills critical gaps.

No Proof of Damage Required

The tort is actionable per se. You do not need to show financial loss, psychiatric injury, or any other form of damage. The invasion itself is the wrong.

Sue Any Person or Entity

Unlike the OAIC complaint pathway (limited to APP entities), you can bring a claim against any individual, corporation, employer, landlord, or government body that recorded you.

Truth Is Not a Defence

It does not matter that you were actually doing what the recording captured. Unlike defamation, truth provides no defence. The wrong is the recording itself, not what it shows.

Injunctions to Stop Ongoing Recording

If the recording is continuing, or if there is a threat of further recording or publication, the court can grant an injunction. When considering an injunction, the court must have particular regard to the public interest in the publication, which a defendant may rely upon to resist the application.

Fixed-Fee Entry Points

A confidential initial assessment is $770. A pre-action demand letter is $990. You can establish your legal position and put the other party on notice at a known cost before committing to litigation.

Federal Jurisdiction, Australia-Wide

The statutory tort operates under Commonwealth law. It applies uniformly across all states and territories, regardless of the gaps and inconsistencies in state surveillance legislation.

Common Recording Scenarios and the State of the Law

What Types of Recording Are Covered

The statutory tort for serious invasion of privacy covers all forms of recording that constitute intrusion upon seclusion. This includes audio recording (whether by phone, hidden device, or interception of calls), video recording (hidden cameras, doorbell cameras directed at private areas, covert filming in homes, workplaces, or rental properties), screen recording of private communications, and recording of private conversations using smart home devices. The tort does not distinguish between analogue and digital recording. Any technology used to capture information about a person in circumstances where they had a reasonable expectation of privacy is potentially within scope.

Why State Surveillance Laws Were Not Enough

Each state has its own surveillance devices legislation, but these laws create criminal offences rather than civil rights of action. You could not sue someone for recording you under the Surveillance Devices Act 1999 (Vic), the Surveillance Devices Act 2007 (NSW), or the Invasion of Privacy Act 1971 (Qld). You could report the conduct to police, but a criminal prosecution was at the discretion of the DPP and would not result in compensation to you.

The gaps in state legislation are significant. In Victoria, the optical surveillance offence under the Surveillance Devices Act 1999 excludes activities carried on outside a building. A neighbour who points a camera at your backyard commits no criminal offence under Victorian law. In NSW, the optical surveillance offence under the Surveillance Devices Act 2007 requires the use of a device installed on or in premises without the occupier's consent, or the use involving entry onto premises without consent. Surveillance conducted from the defendant's own property, directed at yours, generally falls outside the offence. In Queensland, the Invasion of Privacy Act 1971 covers only listening devices. There is no regulation of cameras, GPS trackers, or data surveillance in the civilian context. The Commonwealth statutory tort now provides a civil remedy across all of these scenarios.

Who Can You Sue

Under the statutory tort, only individuals (natural persons) can bring a claim. Corporations cannot sue. However, the defendant pool is broad. You can bring proceedings against any person, corporation, employer, landlord, property manager, private investigator, media organisation, or government body. This is a critical distinction from the OAIC complaint pathway, which only applies to APP entities (organisations with an annual turnover above $3 million, or health service providers, and certain other entities). If you were recorded by a neighbour, an ex-partner, a small business operator, or a private individual, the OAIC cannot assist you. The statutory tort can. For more on the difference, see our page on the OAIC complaint pathway compared to the statutory tort.

What the Defendant May Argue

A defendant facing a privacy tort recording claim has access to defences under Part 2 of Schedule 2, including lawful authority, consent (express or implied), necessity, defence of persons or property, and certain defamation-related defences where the conduct involved publication. Separately, exemptions under Part 3 may apply to journalists, law enforcement bodies, intelligence agencies, government entities acting in good faith, and persons under 18. A defendant can apply for a pre-trial determination that an exemption applies, which may resolve the matter before trial. Additionally, in considering whether to grant an injunction, the court must have particular regard to the public interest in the publication, and defendants may resist an injunction by arguing the public interest in publication. We act for both plaintiffs and defendants in these proceedings. If you are a defendant, see our page on surveillance and recording claims for information on defence strategy.

Where Defamation and Privacy Overlap

If the recording was published or shared, and the content damages your reputation, you may also have a cause of action in defamation. The statutory tort borrows concepts from defamation law, including its damages cap and certain defences. However, defamation and the privacy tort are separate causes of action with different elements. Importantly, truth is a defence to defamation but not to the privacy tort. Where both claims are available, the choice of cause of action (or whether to pursue both) requires careful analysis. Our practice also maintains defamationlawyer.au, and we regularly advise on overlapping claims.

Disclaimer: This page provides general information about the law. It is not legal advice. The application of the law to your circumstances depends on the specific facts. There is no Australian case law on the statutory tort as at the date of this publication. Courts are likely to consider persuasive authority from the United Kingdom, New Zealand, and Canada, where similar privacy torts have been developed, but the weight given to that authority is a matter for the court. If you have been recorded without consent, you should obtain advice specific to your situation.

Frequently Asked Questions: Recording Without Consent

A civil cause of action is available. Since 10 June 2025, the statutory tort for serious invasion of privacy under Schedule 2 of the Privacy Act 1988 (Cth) provides a remedy for individuals who have been recorded without consent. You must establish that the recording constituted an intrusion upon your seclusion, that it was intentional or reckless, that you had a reasonable expectation of privacy, that the invasion was serious, and that your privacy interest outweighs any countervailing public interest. You do not need to prove you suffered financial loss.

No. The statutory tort is Commonwealth legislation and applies uniformly across all Australian states and territories. State surveillance laws differ considerably and contain significant gaps, but the federal tort is not affected by those gaps. Your claim is brought under Commonwealth law regardless of whether you are in Victoria, New South Wales, Queensland, or any other jurisdiction.

A reasonable expectation of privacy is harder to establish in a public place, but it is not automatically excluded. Context matters. Being recorded in a public bathroom, a doctor's waiting room, or during a private conversation in a quiet corner of a restaurant may still satisfy the reasonable expectation of privacy element. The court will assess the circumstances as a whole, including the nature of the activity recorded, the means of recording, and whether the person had taken steps to maintain privacy.

Employers are not immune from the statutory tort. The Australian Privacy Principles contain an employee records exemption, but that exemption does not apply to the statutory tort under Schedule 2. If your employer recorded you covertly without notice, justification, or legitimate business purpose, you may have a claim. However, workplace monitoring that is disclosed, proportionate, and conducted for a legitimate purpose may be defended on grounds of implied consent or absence of a reasonable expectation of privacy. The facts matter. See our page on employer monitoring for more detail.

Truth is not a defence. This is a fundamental difference from defamation law. The statutory tort protects your right to privacy, not your reputation. It does not matter whether the recording accurately captured what was happening. The wrong is the act of recording in circumstances where you had a reasonable expectation of privacy.

The total amount of damages for non-economic loss and any exemplary or punitive damages is subject to a statutory cap (approximately $478,550, indexed). You do not need to prove financial loss to recover damages. See our page on compensation for invasion of privacy for a fuller explanation.

Injunctive relief is available. The court can grant an injunction to restrain ongoing recording or to prevent publication of an existing recording. In considering such an order, the court must have particular regard to the public interest in the publication, and defendants may resist an injunction by arguing the public interest in publication. If the matter is urgent, injunctions can be sought on short notice or after hours. See our page on urgent privacy injunctions.

The limitation period is one year from the date you became aware (or ought reasonably to have become aware) of the invasion, or three years from the date of the invasion, whichever is earlier. The court may extend this to a maximum of six years in certain circumstances. Time limits are strict. If you are approaching the one-year mark, you should obtain advice promptly. See our page on time limits.

A confidential initial assessment, in which a solicitor reviews the facts and advises you on your legal position, is available for a fixed fee of $770. If a pre-action demand letter is appropriate, that is a further fixed fee of $990. These fixed-fee entry points allow you to understand your options at a known cost before deciding whether to proceed to litigation.

Yes. You can lodge a complaint with the Office of the Australian Information Commissioner (OAIC) for free and without a lawyer. However, the OAIC pathway only covers APP entities (generally organisations with turnover above $3 million, health service providers, and certain other entities). It does not cover individuals, small businesses, or most employers. Outcomes tend to be more modest and the process can be slow. If the person who recorded you is not an APP entity, the OAIC cannot assist. Our page on the OAIC complaint pathway explains the differences in detail.

Recorded Without Your Consent? Find Out Where You Stand.

A confidential initial assessment with a privacy solicitor is available for a fixed fee of $770. We act for clients in Melbourne, Sydney, and across Australia.

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