what australia’s new privacy law means for artists

As a privacy and copyright lawyer with almost 30 years of experience under my belt, I’ve had a front-row seat to an interesting legal reality in Australia: people’s images could be used without their permission and there wasn’t much they could do about it. Until now, that is.  

The introduction of the Privacy and Other Legislation Amendment Act 2024 marks a real turning point in privacy law. For the first time in Australia, folks now have a legal right to take action for serious “invasions of privacy”.  

If you're an artist, this is an important new law to understand because the line between art and privacy has just become a little blurrier. As a lawyer who practices in this field, I’ve worked with countless creatives who have captured real people in their work – whether that be in street photography, raw portraiture or even collage – and have faced backlash when someone didn’t want their face, body or story turned into ‘art’. 

Australian law has historically had very few avenues to protect individuals in those situations – especially if the image was truthful and not defamatory. While lawyers used to have to look sideways by claiming for misleading conduct, defamation or just sending an awkward takedown email, now they have something more direct: a statutory tort of serious invasion of privacy. In simple terms, people can now sue if their privacy is “invaded” in a serious way – even if they weren’t publicly defamed, shamed or exposed on social media.  

“But what if I’m just making art?” I hear you ask. If your art features real people – especially in ways that could feel intimate, personal or exposing – this law is going to matter to you. Creatives will need to start thinking about not just creative expression, but also consent, context and consequences. 

Under the new law, someone can sue you if you intrude upon their seclusion (think: hidden camera in their home or studio), if you misuse their personal information (like using private photos or videos in a piece), if they had a reasonable expectation of privacy, if what you did was intentional or reckless, or – and most importantly – if the invasion was serious and not justified by some greater public interest (say, whistleblowing or journalism).  

An important factor to note is that the person suing an artist doesn’t need to show that they have lost money. Serious distress or embarrassment can be enough to bring a claim. There is, however, a time limit – it’s usually one year from finding out.  An important thing to note is that the law targets serious invasions – not just everyday discomfort. What qualifies as “serious” will ultimately be shaped by how the courts apply the law in real-life cases – although, if all the legal boxes are ticked, a person may be entitled to damages in the hundreds of thousands. 

A key thing to remember is that privacy depends on context. The new law doesn’t make it illegal to draw someone on a tram or photograph someone in a park. It does mean, however, that if your work crosses a line into someone’s private world – and does so without permission, you may be on thin ice. That said, the law doesn’t ignore art altogether; courts are required to consider artistic merit and public interest. That may weigh in your favour, but it’s not a free pass. For example, photographing someone through a window, even if it makes for powerful commentary? Risky. Using someone’s face in an artwork that’s critical, intimate or sexualised? Also risky. Turning private DMs or messages into text-based art without asking? Probably not the best idea. 

So, what should creatives start doing now?  
1. Get consent from anyone you’re including in your art and photographs – ideally in writing. A quick email or signed form can save a lot of trouble later.
2. Avoid working with images or footage that feel personal or sensitive, unless you’ve got permission.
3. There may be a need to blur or anonymise someone if you're drawing inspiration from real people.
4. Keep records if someone gives you permission.
5. Talk to a lawyer if you're unsure. (Yes, I had to say it!)

This new law is a reminder that we all have a right to control how we’re seen and shared – and that includes the way we appear on someone else’s canvas, camera roll or expressive work. This shift is seen to be not so much about stifling creativity but more about making space for both expression and dignity. 

If you’re unsure if your work goes too far, try asking yourself if you would be OK if someone did this to you. It’s definitely not the legal test, but it’s a helpful gut check – and probably not a bad place to start.

Sharon Givoni is the author of Owning It: A Creative’s Guide to Copyright, Contracts and the Law published by Creative Minds Publishing (2015).

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