What is the federal statutory tort for serious invasions of privacy and how does it apply to smart glasses?

Australia’s statutory tort for serious invasions of privacy commenced on 10 June 2025, introduced by the Privacy and Other Legislation Amendment Act 2024 (Cth) and inserted as Schedule 2 to the Privacy Act 1988 (Cth). It is the most significant expansion of privacy law in Australia in decades and applies to every person in Australia, not just businesses or government agencies.

1. What Must Be Proved

To succeed in a claim under the tort, a plaintiff must establish all of the following:

1. The defendant intruded on the plaintiff’s seclusion or misused information relating to the plaintiff;
2. A reasonable person in the plaintiff’s position would have expected privacy in those circumstances;
3. The invasion was intentional or reckless (not merely negligent);
4. The invasion was serious; and
5. The public interest in the plaintiff’s privacy outweighs any countervailing public interest, for example freedom of expression or the public interest in information.

2. The Two Limbs: Seclusion and Misuse of Information

The tort covers two distinct forms of privacy invasion:

• Intrusion on seclusion: Observing, recording, or monitoring a person in circumstances where they have a reasonable expectation of privacy. This limb is most relevant to filming a person in a private place without consent.
• Misuse of private information: Using or disclosing information about a person in a way that violates a reasonable expectation of privacy. This limb is most relevant to using smart glasses to identify a stranger and then research or track them.

3. How It Applies to Smart Glasses

Ordinary, incidental capture of a passer-by in a public place is unlikely to meet the “serious” threshold on its own. The tort’s real significance for smart glasses arises in four situations:

• AI identification of strangers: Using glasses to identify an individual through facial recognition and then surface personal information about them to the wearer is a strong candidate for the misuse of information limb;
• Tracking movements: Using continuous footage to track a person across locations or over time;
• Recording in quasi-private settings: Cafes, changerooms, private medical facilities, or other spaces where a reasonable expectation of privacy is stronger than a busy public street; and
• Deliberate concealment: Disabling the recording indicator light or otherwise deliberately concealing that recording is occurring substantially strengthens a finding of recklessness or intent.

4. Remedies Available

The tort provides a civil cause of action. Available remedies include:

• Damages, including for emotional distress and reputational harm;
• Injunctions to prevent ongoing or threatened conduct; and
• Account of profits where the defendant has profited from the invasion.

5. The Recording LED and Recklessness

A wearer who keeps the manufacturer’s recording indicator light functional has a stronger argument that any resulting invasion was not reckless. A wearer who disables it faces a much more difficult argument. However, the indicator is not a complete defence: a bystander who notices the light and says nothing has not thereby consented to being identified, researched, or tracked by an AI agent. The tort does not require the defendant to have obtained consent; it requires proof of reasonable expectation of privacy, intentional or reckless conduct, and seriousness.

6. The Republication Problem

The tort treats republication as a separate wrong from original capture. A wearer who lawfully filmed a person in a public place can still commit a serious invasion of privacy purely through what they subsequently do with that footage: publishing it alongside false information, sharing it to identify the subject, or using it to enable a third party to track or harass them. Each of those subsequent acts is independently actionable.

Related Topics

• Smart Glasses, Cameras and the Death of Ambient Privacy
• Are smart glasses legal to use in Queensland?
• Can a business ban smart glasses on their premises?
• Smart glasses, facial recognition and the Privacy Act
• Who is liable when an AI agent causes harm in Australia?
• AI Defamation and Search Summaries: When the Machine Gets It Wrong

Need advice on the new privacy tort, smart glasses compliance, or a potential privacy claim? Call Bell & Senior Lawyers at (07) 5532 8777 or contact us online .