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Privacy Compensation and Damages Claims

What the statutory tort can deliver, what it cannot, and what a realistic claim looks like.

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What Compensation Is Available for Invasion of Privacy in Australia?

Since 10 June 2025, Australian law has provided a civil right of action for serious invasion of privacy under Schedule 2 of the Privacy Act 1988 (Cth). If you are looking for a privacy compensation lawyer in Australia, the starting point is understanding what the court can actually award.

The statutory tort provides three categories of monetary remedy: compensatory damages for non-economic loss and exemplary damages (which are together capped at approximately $478,550), and an account of profits where the defendant profited from the invasion. The tort is actionable per se, meaning no proof of financial loss or other damage is required. This is a significant departure from most civil claims, and it reflects Parliament's recognition that the harm caused by privacy invasion is often intangible: distress, humiliation, loss of dignity, anxiety.

As the statutory tort is a relatively recent development, the body of Australian case law regarding the assessment of damages is still emerging. It is not a promise of any particular outcome.

This page provides general information only. It does not constitute legal advice. You should obtain advice specific to your circumstances before acting.

The clock is ticking. You may have as little as 12 months to act.

Limitation periods under the statutory tort are strict: one year from when you became aware of the invasion, or three years from when it occurred, whichever is earlier. Do not delay.

The Three Pillars of Privacy Compensation

Schedule 2 provides distinct categories of remedy. Each serves a different purpose and has different thresholds.

Financial compensation for privacy invasion claims

Compensatory and Exemplary Damages (Capped at ~$478,550)

<p>The primary remedy is an award of damages for harm suffered. The cap of approximately $478,550 applies to the combined total of non-economic loss (which includes distress, humiliation, anxiety, and loss of dignity) and any exemplary damages awarded. This cap mirrors the approach in Australian defamation law under the <em>Defamation Act 2005</em>, and the figure is indexed annually.</p><p>Economic loss (actual financial loss caused by the invasion) is recoverable on top of the cap, where it can be proved. Examples include lost income following publication of private health information, costs of relocating after doxxing, or expenses incurred in removing surveillance devices.</p><p>The court does not require proof of any damage at all. The invasion itself is sufficient to found a claim. But the quantum of any award will depend on the seriousness, duration, and consequences of the invasion.</p>

Exemplary damages for serious privacy breaches

Exemplary Damages (Exceptional Cases Only)

<p>Exemplary damages (sometimes called punitive damages) are available under Schedule 2, but only where the defendant's conduct was so egregious that the court considers an additional award necessary to punish and deter. These are not routine. They are subject to the same statutory cap as non-economic loss.</p><p>In comparable jurisdictions, courts have awarded significant compensatory damages where a defendant deliberately and maliciously invaded privacy. The English courts in cases such as <em>Gulati v MGN Ltd</em> [2015] EWCA Civ 1291 awarded substantial compensatory damages against a media organisation for systematic phone hacking. Australian courts are likely to look at this line of authority.</p><p>A claim for exemplary damages under the privacy tort requires evidence of conduct that goes well beyond the threshold for the tort itself. Recklessness alone may not be sufficient. The conduct must be calculated, deliberate, or contumelious.</p>

Account of profits from privacy invasion

Account of Profits

<p>Where a defendant has profited from the invasion, the court may order an account of profits as an alternative to compensatory damages. This strips the defendant of any financial gain made through the invasion of the plaintiff's privacy.</p><p>This remedy is most relevant where private information was misused for commercial purposes: sale of private images, publication of confidential details to generate advertising revenue, or commercial exploitation of a person's private affairs. It may also arise in cases involving media organisations where the application of the journalist exemption to bloggers, influencers, and social media accounts remains untested.</p><p>An account of profits and compensatory damages are generally alternative remedies. The plaintiff elects one or the other, not both. The appropriate election depends on the facts: if the defendant made more money from the invasion than the plaintiff suffered in loss, an account of profits may yield a larger award.</p>

What Damages Are Realistic? A Practical Analysis

No Australian Precedent Yet

As the statutory tort for serious invasion of privacy is a relatively recent development, there is limited Australian case law specifically addressing the assessment of damages under Schedule 2. Any figure quoted by any lawyer (including us) is an estimate based on analogy. We are forthright about this because you deserve accurate information, not inflated expectations.

Guidance from Defamation Awards

The damages cap under the statutory tort was deliberately aligned with the cap in Australian defamation law. This is not a coincidence. The drafters intended courts to look at defamation damages as a reference point for assessing non-economic loss in privacy claims. In Australian defamation, awards for non-economic loss typically range from modest sums (under $30,000 for relatively contained publications with limited distress) up to the maximum cap in the most serious cases involving sustained, high-profile damage to reputation. Mid-range defamation awards, for matters involving real but not catastrophic harm, tend to fall between $80,000 and $200,000. If you have a claim that also involves damage to reputation, the relationship between defamation and privacy remedies is something to discuss with your solicitor. See our page on invasion of privacy vs defamation.

Overseas Privacy Awards as Persuasive Authority

Australian courts are likely to consider overseas privacy tort jurisprudence when assessing quantum, particularly from the United Kingdom, New Zealand, and Canada. In the UK, awards under the equitable action for misuse of private information have ranged from £2,500 for minor intrusions to £260,250 per claimant in the Gulati v MGN Ltd [2015] EWCA Civ 1291 phone-hacking litigation. New Zealand courts, applying the tort of intrusion upon seclusion recognised in C v Holland [2012] NZHC 2155, have awarded damages for covert filming. Canadian courts have similarly awarded damages for privacy torts at common law. These figures do not bind Australian courts, but they indicate the range that developed privacy jurisdictions have considered appropriate.

Factors the Court Will Consider

Clause 11 of Schedule 2 directs the court to consider a range of factors when assessing damages for privacy breach compensation. These include the nature and seriousness of the invasion, the conduct of the defendant (including whether it was deliberate, sustained, or motivated by malice), the effect on the plaintiff (distress, anxiety, fear, loss of autonomy), any steps taken by the defendant to mitigate the harm (including an apology, which under clause 13 does not constitute an admission), and the relationship between the parties. A single incident of disclosure to a small audience will attract a lower award than a sustained campaign of surveillance or a publication to thousands of people online.

What Is Not Available

Aggravated damages are not available under the statutory tort. This distinguishes it from defamation, where aggravated damages can significantly increase the total award. The absence of aggravated damages means the court cannot increase compensatory damages based on the defendant's conduct during the proceedings (for example, by running a defence known to be false). However, exemplary damages may perform a similar function in exceptional cases.

Injunctive Relief as an Alternative or Complement

Compensation is only one remedy. In many cases, what the plaintiff wants most urgently is for the invasion to stop. Urgent privacy injunctions can restrain ongoing surveillance, prevent publication of private information, or require the deletion of material. Injunctions and damages can be sought together. For ongoing invasions, an injunction is often the first priority.

This page provides general information only and does not constitute legal advice. You should obtain advice specific to your circumstances before acting.

Fixed-Fee Confidential Assessment: $770

A frank, private evaluation of your claim, the likely range of compensation, and whether court proceedings are warranted. No obligation to proceed further.

Why the Damages Framework Matters

Understanding the structure of compensation under Schedule 2 is essential to making informed decisions about your claim.

No Proof of Damage Required

The statutory tort is actionable per se. You do not need to demonstrate financial loss, psychological injury, or any other damage to succeed. The invasion itself is the wrong.

Truth Is Not a Defence

Unlike defamation, it does not matter whether the information published about you was true. Privacy protects the right to control your own information, regardless of its accuracy.

Broad Defendant Pool

You can bring a claim against any person, corporation, or government body. The defendant does not need to be an APP entity under the Privacy Act. This is a significant advantage over the OAIC complaint pathway.

Exemplary Damages Subject to Cap

In exceptional cases, the court can award exemplary damages. Under the statutory tort, these are included within the same cap as non-economic loss to punish and deter egregious conduct.

Account of Profits Strips Financial Gain

Where the defendant profited from the invasion, an account of profits ensures they do not retain the benefit. This is especially relevant for commercial exploitation of private information.

Injunctions Stop the Harm Immediately

Damages compensate after the fact. An injunction prevents further harm. The court can order the defendant to cease surveillance, delete material, or refrain from publication.

Frequently Asked Questions About Privacy Compensation

The statutory cap on the combined total of non-economic loss (distress, humiliation, anxiety) and exemplary damages is approximately $478,550, indexed annually. This is the maximum. Most awards are likely to fall well below this figure. Economic loss (actual financial loss) can be recovered on top of the cap where proved. While the statutory tort is relatively new, defamation awards and overseas privacy decisions provide useful guidance on likely ranges. A realistic assessment depends on the specific facts of your matter.

No. The statutory tort is actionable per se. This means the invasion of privacy itself is sufficient to found a claim. You do not need to prove financial loss, psychological injury, or any other form of damage. The court will assess compensation based on the seriousness of the invasion, the defendant's conduct, and the effect on you, but the absence of provable loss does not prevent a successful claim.

Exemplary damages (also known as punitive damages) are an additional award designed to punish the defendant and deter similar conduct. They are not compensation for loss. They are available under Schedule 2, but only in exceptional circumstances where the defendant's conduct was so deliberate, malicious, or outrageous that compensatory damages alone are insufficient. These awards are subject to the same statutory cap as non-economic loss and should not be assumed.

An account of profits is a remedy that requires the defendant to hand over any profit they made from the invasion of your privacy. It is an alternative to compensatory damages (you choose one or the other, not both). It is most useful where the defendant commercially exploited your private information, for example by selling images, generating advertising revenue, or trading on your personal details.

No. Unlike defamation, the statutory tort does not provide for aggravated damages. This means the court cannot increase the compensatory award based on the defendant's conduct during the litigation (such as running a hopeless defence or behaving unreasonably). However, the defendant's overall conduct, including post-invasion behaviour, may be relevant to exemplary damages in an appropriate case.

The damages cap figure is the same, which is deliberate. However, there are structural differences. In defamation, aggravated damages are available and truth is a complete defence. In privacy, the cap includes exemplary damages and truth is not a defence. The overlap arises where private information is published: the same conduct may give rise to both a defamation claim and a privacy claim. These can be pursued together, although the court will not allow double recovery.

Yes. An ongoing invasion (such as continuing surveillance or material that remains published online) can support both a claim for damages and an application for an urgent injunction to stop the conduct. In many cases, the injunction is the more immediate priority. You do not need to wait until the invasion has ended before taking action.

The limitation period is one year from when you became aware (or ought reasonably to have become aware) of the invasion, or three years from when the invasion occurred, whichever is earlier. The court has a discretion to extend this to a maximum of six years in certain circumstances, but extensions are not guaranteed. You should seek advice promptly. See our page on privacy tort time limits for full details.

The Office of the Australian Information Commissioner (OAIC) operates a free complaint pathway that does not require a lawyer. However, it only covers APP entities (generally organisations with annual turnover above $3 million, along with health service providers, government agencies, and certain other bodies). It does not cover claims against individuals, small businesses, or non-APP entities. Outcomes through the OAIC are typically more modest, there is no provision for exemplary damages, and the process can be slow. For serious invasions of privacy, particularly those involving individuals or small businesses as defendants, the statutory tort provides a stronger and broader remedy. See our comparison page on OAIC complaints vs suing for invasion of privacy.

Understand What Your Claim Is Worth

A fixed-fee confidential assessment ($770) gives you a clear, honest evaluation of the likely compensation range, the strength of your claim, and the practical steps involved. Limitation periods are strict. You may have as little as 12 months to act.

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