Peter A Clarke

It is well established that individuals have actionable claims for breach of privacy, in the form of misuse of private information, for photographs or videos taken in public.  The two significant cases are Campbell v MGM Ltd [2004] UKHL 22 and Murray v Big Pictures [2008] EWCA 446. Campbell’s case involved MGN photographing Naomi Campbell on a street leaving a Narcotics Anonymous Meeting.  In Murray the young child of J K Rowlings was photographed in a pram in Edinburgh.  The leading New Zealand case of Hosking v Runting [2003] 3 NZLR 385 which formally recognised a stand alone tort of privacy involved publication of private information, involved Runting photographing the Hoskings’ 18-month-old twin daughters in a public shopping street in Auckland without the mother’s knowledge or consent.

The Victorian Court of Appeal decision of  Giller v Procopets (2008) 24 VR 1 recognised the equitable cause of action of misuse of private information and cited with approval the Campbell and others.  The Court also found that damages for emotional distress could be awarded for such a breach of confidence.

The Brisbane City Council has banned the “non consensual” use of AI smart glasses.  use of smart glasses.  Actually it is more expansive, being a blanket ban on all camera enabled devices including wearable technology, phones and action cameras.  Patrons can bring smart glasses into the pool.  They just can’t be used to film without permission.  This is a policy that will be quite difficult to effectively enforce.

On 7 August 2026 the Commonwealth Attorney General wrote to the Privacy Commissioner about the privacy implications of the use of smart glasses.  On 28 August The New Zealand Privacy Commissioner has already issued a statement, almost a guidance, on the use of smart glasses stating:

• because the devices look like ordinary eyewear, people can covertly film others, making it harder for those being filmed to object.
• the Commissioner’s concerns would grow if manufacturers integrate facial recognition technology into smart glasses in the future
• there is uncertainty around how companies collect, use, and store the data these devices gather.
• that people who use smart glasses in a personal capacity should tell people they are recording, even though most smart glasses flash a light while recording.
• while the New Zealand Privacy Act permits individuals to collect and use personal information for personal or domestic purposes providing that use, or sharing does not become highly offensive. Factors relevant in determining whether the filming highly offensive, include:

• • how the information is filmed;

• • how sensitive it is; and

• • how vulnerable the person being filmed is.

•  filming children, or capturing someone’s health or mental state, calls for extra care, and disabling the warning light on smart glasses can make the filming more offensive.
• regarding the filming with smart glasses without consent while someone can request that the filming cease, the act may not be illegal.  In some situations, this could lead to criminal offenses, particularly if shared online under the New Zealand Harmful Digital Communications Act
• care should be taken against assuming that all smart glasses users are acting improperly.  There can be legitimate use in assisting the visually impaired.
• organisations providing smart glasses must adhere to the Privacy Act.  Personal information must be collected only for lawful business purposes.
• companies should adopt policies to prevent misuse and insisted on transparency in data collection in line with privacy principles.  Employers should establish workplace policies on appropriate use.

The Greens have called for banning “pervert glasses” in a hyperbolic reaction. That is not practical. Today Tanya Plibersek, a Government Minister, said the Federal Government is considering a moritorium on the import of smart glasses. That is a very short term problem to a larger problem of surveillance and protection of privacy.

On the same day the Commonwealth Attorney General writes to the Privacy Commissioner she posts a blog titled Surveillance wearables – are we through the looking glass(es)? It is a very general overview which pegs out some relevant factors but not much more.  The comparison with the New Zealand Privacy Commissioner’s statement is stark.

While the call for reform is loud it is relevant to point out that a person aggrieved may have recourse under the Statutory Tort for Serious Invasions of Privacy.It is Schedule 2 of the Commonwealth Privacy Act 1988.

These responses are quite knee jerk to a rapidly changing developments.  They are unlikely to provide a coherent solution.  One reason for the quite emotional response is that the legislation is so inadequate.  It did not have to be.  Law Reform Commissions have been recommending more effective and robust legislation for many years.  In 2008 the Australian Law Reform Commission issued a 3 volume report whose recommendations would have resulted in a much more effective Privacy Act.

Section 7(1) provides:

(1)   An individual (the plaintiff ) has a cause of action in tort against another person (the defendant ) if:

  (a)   the defendant invaded the plaintiff’s privacy by doing one or both of the following:

  (i)   intruding upon the plaintiff’s seclusion;

  (ii)   misusing information that relates to the plaintiff; and

  (b)   a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances; and

  (c)   the invasion of privacy was intentional or reckless; and

  (d)   the invasion of privacy was serious; and

  (e)   the public interest in the plaintiff’s privacy outweighed any countervailing public interest.

One of the six relevant factors that the court must consider in determining whether there was a reasonable expectation of privacy is, at section 7(5)(e):

(e)   if the defendant invaded the plaintiff’s privacy by intruding upon the plaintiff’s seclusion–the place where the intrusion occurred;

The Privacy Commissioner’s post provides:

In his 2013 dystopian novel The Circle, author Dave Eggers describes a fictional future dominated by “all-seeing, all-knowing” tech companies who promote the mainstream use of wearable surveillance technologies – pins that contain cameras, health and biometrics bracelets, and microchip trackers for young children. Consumer uptake is encouraged through the deployment to the catchy slogan, “Secrets are lies. Sharing is caring. Privacy is theft”.

Reading the book at the time it was published, I was captivated by the dark future it projected. Today, I am concerned how closely it aligns with the reality we see emerging around us. And I am vitally interested in how our privacy laws can meet the challenge – and where they may not.

A decade after Google’s failed attempt to launch Google Glass – futuristic spectacles that an enabled a user to record photos and videos, issue voice commands and view data overlaid on a transparent screen – we are seeing the growth of surveillance wearables available on the consumer market. This time it is Meta leading the charge with its Meta Glasses, but others will soon follow their lead – Google plans to launch Android XR smart glasses later this year, with Apple’s own product launching in 2027. Cut price versions are beginning to be offered by mainstream retailers such as Kmart and Amazon. OpenAI has its own secretive plans to launch a wearable device to facilitate the ambient collection of data to power AI assistants.

Just as when Google launched its original version, the public conversation is quickly turning to the implications for personal privacy of a new spate of wearables that permit a wearer to record images, video and sound in any environment, from a public bathroom to the local pub. There are those who will say that the prevalence of smart phones, Go-Pros, dash cams and other recording devices, not to mention facial recognition technology, means that this time round smart glasses will land in a society much more used to being recorded, in which online and offline surveillance has already become normalised, and therefore individuals should no longer have a reasonable expectation that they can live private or anonymous lives.

But the Australian community is likely to disagree. More than 85% of them recently told us in a privacy attitudes survey that their concerns about privacy have only increased in the last five years. Across the board, Australians are discontent with practices such as online tracking, targeted advertising, and biometrics technologies, and indicate that they have almost no trust in social media and AI companies.

In my view, there is a meaningful difference between place-based surveillance, such as that we find in airports and in certain retail spaces which have been able to meet the relevant thresholds to justify its deployment, and surveillance wearables in the hands of every roving individual, designed for discretion (or even concealment). Privacy does not mean an absolute ability to hide oneself at all times, but it does mean the ability to make choices and control the conditions upon which you move about the world. The proliferation of smart glasses – and their future peers, such as wearable pins or advanced earbuds – would fundamentally alter our experience of interpersonal interactions, in both private and public spaces, and undermine our ability to make some of those choices. Without knowing, we could be filmed, recorded or photographed at any time.

For the most part, the implications of being so recorded would be few, and mild – our images and opinions would take up space in a data centre somewhere but would be unlikely to be used or analysed in any way that materially affects us. There may even be benefits that flow from the use of surveillance wearables in certain sectors, the way bodycams are aiding retail security objectives. But there will be exceptions to benign usage – where smart glasses users are able to use the tech in harmful ways to exploit or surveil vulnerable groups, such as children or victims of domestic violence, or for other untoward ends, such as corporate espionage, data theft, extortion or bribery. Beyond safety concerns, there is also the impact on community values and the public interest in privacy. In aggregate, the effects of mainstreamed surveillance wearables would be the emergence of new privacy risks, new safety concerns, and new societal norms.

It would also require consideration of whether we need new laws. Australia’s Privacy Act only applies to businesses and government agencies, not to individuals, and it only applies when those entities collect personal information.

In circumstances where a tech company is receiving and storing personal information collected by surveillance wearables, they’ll have to make sure they’re complying with privacy law. And there are real questions as to whether they will be able to do so – how will they notify individuals that their images or voice has been recorded? If they’re making facial recognition features available, how will they ensure that they have the consent of the people whose faces the tech is analysing?

The Australian government is currently in the process of developing the Tranche 2 reforms to the Privacy Act, which are likely to include expanding the scope of application of privacy law in ways that create additional hurdles for the developers of surveillance wearables. Under the proposed reforms, for example, entities will need to be able to demonstrate that their collection and use of personal information, including to train AI models, is both fair and reasonable. Higher standards around consent, more protections on geolocation data and an expanded definition of personal information are also likely to strengthen my hand as Australia’s privacy regulator in scrutinising these tools.

But the coverage of the Privacy Act stops short of personal information collection by individuals themselves. So, where the data collected through wearables is processed on the device itself or is otherwise not within the control of a regulated entity, for example because the images are stored directly on the device until uploaded to a personal computer, it may not fall within the remit of the Act, necessitating the use of other legal means for redress. In such circumstances, the recently introduced tort of serious invasions of privacy would be available for claims against individuals, where a smart glasses user intentionally contravened another’s privacy and that person suffered serious distress, offence or harm as a result. And the forthcoming Digital Duty of Care will require entities – including hardware providers – to take reasonable steps to maintain processes and systems that, among other things, prevent activity that is illegal or harmful to children.

As Australia’s privacy regulator we are giving serious consideration to the issues raised by surveillance wearables and monitoring their market presence in order to understand if scrutiny and intervention is required or warranted. We have engaged with one entity on at least two occasions this year to further understand the technical specifications of surveillance wearables on offer.

But compliance with existing privacy law is likely to be only one part of the puzzle that companies developing and deploying these tools will need to consider. As long as public trust in technology companies remains extremely low, the bar for establishing a social licence for rolling out new tech will be high. We may have become more inured to the presence of surveillance in our daily lives over the past decade, but the majority of the Australian public would reject the contention that “privacy is theft”. Privacy remains a vitally important individual right and public value in Australia, and we at the OAIC will continue to promote and protect it even as surveillance wearables proliferate.

The Minister’s statement provides:

The Attorney-General has written to the Privacy Commissioner over the potential privacy implications and concerns raised by the community about the growing uptake of ‘smart glasses’.

Smart glasses, which are fitted with cameras capable of capturing images and recording video, have become increasingly accessible across Australia.

In a letter sent to the Privacy Commissioner, the Attorney-General specifically asks that this issue be given priority consideration.

Smart glasses may have significant privacy implications, especially for women and children who could be disproportionately affected by inappropriate recording, harassment, surveillance or other harmful conduct enabled by this technology.

The Office of the Australian Information Commissioner (OAIC) is an independent statutory agency with full responsibility for its own administration.

The Government believes the OAIC’s expertise and oversight will be critical in monitoring developments in this area, including identifying any new privacy risks and mitigation measures.

Quotes attributable to the Attorney-General, Hon Michelle Rowland MP:

“Privacy is an essential part of all our lives; it allows us to be who we are with dignity and without fear.

“That’s why the Albanese Government has written to the Privacy Commissioner, raising widespread community concerns about the potential impacts of ‘smart glasses’, particularly for women and children.

“Unlike other forms of technology, smart glasses may be used more discreetly, making it harder to know when you are being recorded.

“The OAIC regularly monitors the effects of new technologies on privacy – and the Government has every faith that they will identify any new privacy risks and mitigation measures.

“The Government is continuing to work on the next phase of privacy reforms to ensure our privacy laws are fit for purpose in the digital age.”

The ABC report on the banning of filming in Brisbane pools provides:

Brisbane City Council has banned the use of AI smart glasses to secretly film people in its public pools.

Today the council announced a blanket ban on the non-consensual use of all camera-enabled devices, including wearable technology, phones, and action cameras.

Under the new conditions of entry, people will still be able to bring smart glasses into the pool, but will not be able to film without permission.

The ban will apply to video recordings as well as photographs.

Under Queensland law it is legal to film people in public areas, even without their knowledge or consent.

However, the council’s new rules will allow its lifeguards to eject pool visitors who film others without their permission.

An evolving problem

Brisbane Lord Mayor Adrian Schrinner said swimmers were increasingly worried about smart glasses being used to surreptitiously film them.

He said these concerns were mounting due to the rise of Anko smart glasses, which were much cheaper than Meta Ray-Bans.

“We want everyone that uses our pools to know that they’re not secretly being recorded by other users of the pool, that their children are not being recorded,” Cr Schrinner said.

The council says the ban will be rolled out “in the coming weeks” across all 21 of its public pools.

Tom Tulston, head of policy at Digital Rights Watch, welcomed the ban.

He said the state and federal governments should also be regulating the use of this smart technology. 

“We all need to be able to go out in public without fear of being covertly recorded and having the images uploaded to the internet without our consent,” Mr Tulston said.

“We look forward to seeing not just councils following Brisbane’s lead, but also state and federal governments.”

Queensland Family and Child Commission principal commissioner Luke Twyford said the ban would safeguard children.

“Child harm and abuse can be hard to recognise, and all organisations need to ensure the services and spaces they operate are safe for children and prevent exploitation,” he said.

“I’m really glad to see Brisbane City Council considering its role in making Queensland a safe place and taking steps to reduce foreseeable risks.”