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The Seriousness Threshold in Privacy Tort Claims

The statutory tort only applies to serious invasions. This section outlines the operation of the threshold and the factors the court will consider.

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The Seriousness Threshold: Not Every Privacy Intrusion Is Actionable

If you are wondering whether you can sue for invasion of privacy in Australia, the outcome depends significantly on the interpretation of serious. The statutory tort for serious invasion of privacy under Schedule 2 of the Privacy Act 1988 (Cth) does not create a right of action for every unwanted intrusion or disclosure. It requires the invasion to be serious. This is an intentional threshold. Parliament chose to exclude trivial, incidental, or fleeting interferences with privacy from the scope of the tort.

The seriousness threshold under clause 7(1)(d) is one of several matters the court must consider when determining whether a cause of action is established. It operates alongside the requirement that the invasion be intentional or reckless, and alongside the public interest balancing test. It is a question of fact and degree, assessed by reference to the circumstances of each case. There is no fixed definition of what is serious enough. But the legislation identifies factors the court may weigh, and overseas courts have addressed equivalent questions in detail.

Three Factors Courts Will Weigh

Clause 7(1)(d) directs the court to consider whether the invasion was serious. Several statutory and contextual factors inform that assessment.

Intentional surveillance representing deliberate privacy invasion

Was the Invasion Intentional or Deliberate?

The court may consider whether the defendant acted deliberately. A person who installs a hidden camera in a bathroom, places a GPS tracker on a vehicle, or systematically accesses another person's private accounts is acting with clear intent. Deliberate, planned, or repeated conduct will weigh heavily in favour of the seriousness threshold being met. A single inadvertent glimpse over a fence will not. The distinction between calculated intrusion and incidental exposure runs through the overseas case law and is likely to be central in Australian courts.

Private residential space representing reasonable expectation of privacy

Did the Defendant Know It Would Cause Offence or Distress?

The legislation directs the court to consider whether the defendant knew or ought to have known the invasion was likely to offend, humiliate, or distress the plaintiff. This is partly objective: a reasonable person would understand that publishing someone's intimate images, leaking their medical records, or disclosing their home address to hostile parties would cause real harm. Where the defendant was warned, asked to stop, or was on notice that the plaintiff objected, this factor will be met. It may also be inferred from the nature of the information or the context of the intrusion.

Person experiencing distress from privacy invasion

Did the Plaintiff Suffer Actual Harm?

Proof of damage is not required to bring a claim under the statutory tort. It is actionable per se. However, the court may consider whether the plaintiff suffered damage as one factor in assessing seriousness. Emotional distress, anxiety, loss of employment, relationship breakdown, or financial harm flowing from the invasion will all support a finding that the threshold is met. The absence of measurable harm does not defeat the claim, but the presence of harm strengthens it. This follows the approach taken in the UK under the tort of misuse of private information.

Drawing the Line: What Is Serious and What Is Not

Practical Examples

The seriousness threshold is best understood through examples. Consider a neighbour who installs a CCTV camera trained directly on your bedroom window, your backyard pool, or the interior of your living space. The surveillance is persistent, deliberate, and directed at a space where your expectation of privacy is at its highest. This is very likely to meet the serious invasion threshold. By contrast, a security camera mounted above a neighbour's front door that incidentally captures part of your driveway is unlikely to do so. The difference lies in the nature, degree, and purpose of the intrusion.

Similarly, a former partner who accesses your email, reads your private messages, and forwards your intimate photographs to third parties is engaging in conduct that is plainly serious. A person who inadvertently sees a text message on an unlocked phone left on a kitchen table is not. Publishing a person's home address, phone number, and workplace on social media with the intent to expose them to harassment (doxxing) will almost certainly be serious. Mentioning in conversation that a colleague lives in a particular suburb probably will not be.

Overseas Authority: How Other Courts Have Approached the Threshold

Since the statutory tort commenced on 10 June 2025, Australian case law applying the seriousness test is currently developing. However, the legislation was modelled in part on the torts recognised in New Zealand, the United Kingdom, and Canada. Australian courts are likely to consider the reasoning in those jurisdictions as persuasive authority.

In New Zealand, the tort of intrusion upon seclusion was recognised in C v Holland [2012] NZHC 2155. The High Court required the intrusion to be "highly offensive to an objective reasonable person." The defendant had covertly filmed the plaintiff showering. The court had no difficulty finding the threshold met. The "highly offensive" standard has been applied in subsequent New Zealand decisions to exclude minor or incidental intrusions while capturing conduct that would cause genuine affront to a reasonable person.

In the United Kingdom, the tort of misuse of private information (developed from Campbell v MGN Ltd [2004] UKHL 22 and subsequent Court of Appeal decisions) applies a two-stage test. The first stage asks whether the claimant had a reasonable expectation of privacy. The second balances that expectation against competing interests, including freedom of expression. The UK courts have consistently held that the more intimate, sensitive, or personal the information, the stronger the privacy interest, and the more readily the threshold is met. Health information, sexual conduct, financial records, and family matters attract the strongest protection.

In Canada, the tort of intrusion upon seclusion was recognised in Jones v Tsige [2012] ONCA 32. The Ontario Court of Appeal required the invasion to be one that "would be highly offensive to a reasonable person." The court suggested a range of up to $20,000 for modest conventional damages, while noting that aggravated or punitive damages could exceed this in exceptional cases, and emphasised that the tort targets deliberate, significant invasions, not trivial annoyances. The defendant had repeatedly accessed the plaintiff's banking records over a period of years. The court found the conduct clearly met the threshold despite the absence of financial loss.

These decisions share a common theme. The seriousness (or "highly offensive") threshold exists to prevent the tort from becoming a vehicle for trivial grievances. It targets conduct that a reasonable person would regard as a substantial affront to dignity, autonomy, or personal security. Australian courts are likely to take a similar approach.

The Seriousness Threshold Is Not a Bar to Meritorious Claims

If you have experienced a deliberate intrusion into your private space, the targeted disclosure of sensitive personal information, or ongoing surveillance that has caused you real distress, the seriousness threshold is unlikely to be an obstacle. It is designed to filter out the trivial, not the genuine. The question of whether your particular circumstances meet the threshold is a matter we assess as part of every confidential initial assessment.

Potential claimants should also consider the alternative of a complaint to the Office of the Australian Information Commissioner (OAIC). While the OAIC pathway is free, it is limited to APP entities and is often slower than litigation, with outcomes generally restricted to modest compensation rather than the more substantial or punitive damages available under the statutory tort.

For defendants, the seriousness threshold is an important tool. If the conduct complained of was minor, incidental, or proportionate to a legitimate purpose, a strong argument may exist that the threshold is not met. This can be raised early and may avoid the need for a full trial. Read more about how the statutory tort compares with the OAIC complaint pathway, or see our page on invasion of privacy and defamation where the conduct also involves reputational harm.

What Strengthens a Claim of Serious Invasion

The following circumstances tend to support a finding that the invasion was serious under the statutory tort.

Repeated or Sustained Conduct

Ongoing surveillance, repeated access to private accounts, or a pattern of intrusive behaviour over time will carry more weight than a single isolated act.

Highly Sensitive Information

Health records, sexual conduct, intimate images, financial details, and family matters attract the strongest privacy protection under UK and NZ authority.

Vulnerability of the Plaintiff

Where the plaintiff was in a position of vulnerability, such as a patient, tenant, employee, or person experiencing domestic violence, courts are more likely to treat the invasion as serious.

No Legitimate Purpose

Invasions driven by curiosity, malice, control, or commercial gain without justification are far more likely to meet the threshold than conduct with a genuine protective or investigative purpose.

Knowledge the Conduct Was Unwelcome

Where the plaintiff asked the defendant to stop, issued a warning, or the defendant knew the plaintiff objected, the case for seriousness is strengthened.

Wide or Irreversible Disclosure

Publishing private information to a large audience or in a form that cannot be recalled (online publication, social media, forwarding to multiple recipients) supports a finding of seriousness.

Common Questions About the Seriousness Threshold

The legislation does not define "serious" with a fixed formula. It is a question of fact and degree determined by the court in each case. Clause 7(1)(d) of Schedule 2 directs the court to consider whether the invasion was serious as one of several mandatory factors. The court will look at the nature of the intrusion or disclosure, the sensitivity of the information, the defendant's intent, whether the defendant knew the conduct was likely to cause offence or distress, and whether the plaintiff suffered harm. Overseas courts applying equivalent thresholds have described it as conduct that would be "highly offensive to a reasonable person." The threshold exists to exclude trivial or incidental interferences with privacy from the scope of the tort.

No. The statutory tort is actionable per se, meaning you do not need to prove financial loss or any other form of damage to bring a claim. However, the court may consider whether you suffered damage (including emotional distress, not only financial harm) as one factor in assessing whether the invasion was serious. Many of the most serious privacy invasions cause psychological harm, damage to relationships, or loss of dignity rather than direct financial loss.

Probably not, on its own. A security camera that incidentally captures a small area of a neighbour's property, particularly a front yard visible from the street, is unlikely to meet the seriousness threshold. The expectation of privacy in a front yard is lower than in a bedroom, bathroom, or enclosed backyard. However, a camera deliberately aimed at private areas of your home, or one that forms part of a broader pattern of harassment or surveillance, may well meet the threshold. Context matters. See our detailed page on neighbour camera disputes.

A single incident can meet the seriousness threshold if the nature of the intrusion is sufficiently grave. A one-off installation of a hidden camera in a bathroom, a single act of publishing intimate images without consent, or a single disclosure of highly sensitive medical records could each be serious enough. Repeated or sustained conduct strengthens the case for seriousness, but it is not a prerequisite. The New Zealand decision in C v Holland involved a single act of covert filming and was found to meet the threshold.

Truth is not a defence to the statutory tort for serious invasion of privacy. Unlike defamation, it does not matter whether the information disclosed about you was accurate. In fact, the publication of true but private information, such as medical diagnoses, sexual orientation, or financial details, is precisely the kind of conduct the tort is designed to address. The truth of the information does not reduce the seriousness of the invasion. If anything, the disclosure of verified private facts may cause greater harm because the plaintiff cannot dispute the accuracy of what was revealed.

Yes. Defendants can argue that the conduct complained of did not meet the seriousness threshold. This is a matter for the court to determine, and it can be raised at trial as part of the defence. If the conduct was minor, incidental, proportionate, or directed at information in which the plaintiff had a low expectation of privacy, a strong argument may exist that the threshold is not satisfied. This is separate from the statutory defences (such as lawful authority, consent, or necessity) and from pre-trial exemption applications, which address different questions. We represent defendants as well as plaintiffs in these proceedings.

The most reliable way to assess whether your circumstances are likely to meet the serious invasion threshold is through a confidential initial assessment. We review the facts of your matter against the statutory criteria and the relevant overseas authority, and provide a frank opinion on the strength of the claim. The assessment is conducted on a fixed-fee basis ($770 inclusive of GST) and is protected by legal professional privilege. Time limits apply: you may have as little as 12 months from the date you became aware of the invasion to commence proceedings.

Statutory Time Limits for Privacy Claims

If you believe your privacy has been seriously invaded, or you are facing a claim and want to challenge the seriousness threshold, contact us for a confidential fixed-fee assessment.

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