Privacy Law for Artists

Privacy Law for Artists

We recently wrote an article for Frankie magazine about how Australia’s new privacy tort affects artists and photographers. In this extended version, Sharon explores real-life case studies, offers practical legal tips, and explains how creatives can protect themselves under the new law.

For the original article published in Frankie magazine, click here: what Australia’s new privacy law means for artists • strictly business • Frankie magazine • australian fashion magazine online

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.

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 the New Tort?

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:

1. The plaintiff had a reasonable expectation of privacy.
2. The invasion was intentional or reckless (not merely negligent).
3. 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 Text-Based Artist
A collage artist turns personal DMs from ex-partners into a multimedia installation. The messages are anonymised but recognisable to those involved. One ex-partner feels humiliated and distressed, and files a claim.

Could a court view this as a serious misuse of private information, even if the person isn’t named? And what risks might an artist face if the work was created or shared without regard to how it might affect those involved?

How Does This Differ From Existing Law?

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.

Key differences:

• 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?

Remedies and Penalties

Courts now have broad powers to:

1. Award damages for emotional harm, capped at $478,550 (or the defamation cap, whichever is higher)
2. Issue injunctions to stop the publication or display of the work
3. 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.

Are There Any Defences?

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.

What Should Artists and Creatives Do Now?

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, tread carefully.

In Summary

Australia’s new privacy tort is a huge shift in how the law protects individuals from having their private lives used without consent. For creatives, it doesn’t mean the end of bold art — it means a new layer of responsibility.

At Sharon Givoni Consulting, we offer:

1. Consent and release templates
2. Legal reviews of artwork
3. Risk advice tailored for creatives
4. We can help you legally if things go wrong

Yes, 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. What Australia’s new privacy law means for artists • strictly business • frankie magazine • australian fashion magazine online

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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.