7.1 There are essentially three types of liability to consider when designing a cause of action for serious invasion of privacy: liability based on intention; liability based on negligence; and strict liability.
7.2 The ALRC recommends that, for an action under the tort to succeed, the invasion of privacy must be either intentional or reckless. Confining the tort in this way will ensure that the new tort applies to the most objectionable types of invasion of privacy.
7.3 Analogous torts protecting fundamental personal rights, such as assault and false imprisonment, also require proof of intent.
7.4 In addition, confining the tort to intentional or reckless conduct is critical to the justification for the tort being actionable without proof of damage. Not requiring proof of actual damage—essentially, allowing actions where there is ‘only’ emotional distress—will provide an important level of protection and vindication for victims of intentional or reckless invasions of privacy, and will enhance the tort’s deterrent and normative influence.
7.5 The cause of action should not extend to negligent invasions of privacy, and should not attract strict liability. Negligence or strict liability would make the scope of the tort too broad.
7.6 This chapter also recommends that an apology should not be admissible as evidence of an admission of fault or liability.