AskUs

What does highly offensive mean?

There is an exception in the Privacy Act which says that the general rules around how agencies should deal with personal information do not apply if the information is collected by a private individual in relation to their personal affairs. However this exception will not apply if the information is collected, used or disclosed in a way which is highly offensive to the reasonable person.

The term ‘highly offensive to an ordinary reasonable person’ can apply to a range of situations.

The test is whether an ordinary reasonable person would think that what has happened is a breach of an individual’s reasonable expectations of privacy.

The test is designed to eliminate trivial, fleeting or slight offences. It focuses on actions that are truly humiliating and distressing. It also considers what people of ordinary sensitivities would think, not people who are unusually sensitive.

Factors that are relevant include:

  • The sensitivity of the information;
  • The harm to the individual (or sometimes to their family);
  • How intimate or personal the information is; 
  • Whether the information was in the public domain or the action occurred in a public place;
  • The relationship between the parties (for example, does this involve a substantial breach of trust and confidence?); and
  • How vulnerable the individual is and whether the person collecting, using or disclosing the information was aware of this.

The standard is equivalent to that used by the Broadcasting Standards Authority(external link), and the test is also used by judges in privacy law cases.

We’ve carried out research that showed people tend to view information about health and mental health as particularly sensitive.

Children are also seen as entitled to particular protection (from CCTV cameras overlooking play or changing areas, for example, or from publishing of photos on strangers’ social media pages).

In contrast, photographs taken of celebrities or protesters in public places are usually not seen as offensive, even with children included.