6.1 The ALRC recommends that, to have an action, a plaintiff must prove that a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances.

6.2 This is essentially an objective test used to answer the question ‘Is this private?’ The subjective expectation of the plaintiff may be a relevant consideration, but it is not the focus of the inquiry. The question is determined by the court, after close analysis of the particular circumstances of the case.

6.3 The ALRC also recommends that the Act include a non-exhaustive list of factors that a court may consider when determining whether a person would have had a reasonable expectation of privacy. This is intended to provide guidance and assistance to the parties and the court, without limiting the matters that might be considered in a particular case.

6.4 The recommended factors include: the nature of the private information; the means used to obtain the private information or to intrude upon seclusion; the place where the intrusion occurred; the purpose of the misuse or intrusion; how the private information was held or communicated; whether the private information was already in the public domain; the attributes of the plaintiff, such as their age; and the conduct of the plaintiff.