8.1 The tort designed in this Report is concerned with providing civil redress for serious invasions of privacy. The ALRC recommends that this should be made clear in the Act, by including a separate and discrete element of the tort requiring a court to consider whether the invasion of privacy was ‘serious’. This will help deter people from bringing trivial privacy claims before the courts.
8.2 Guidance on the meaning of serious should be provided in the statute. The relevant Act should provide that a court may consider the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause a person of ordinary sensibilities in the position of the plaintiff. The Act should also provide that courts may consider whether the defendant was motivated by malice or knew the invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff.
8.3 Other matters may also be relevant, but the ALRC considers these to be the most important. Including them will provide some certainty about the meaning of ‘serious’.
8.4 The second question discussed in this chapter is whether the plaintiff should be required to prove that they suffered ‘actual damage’—more than emotional distress—from the invasion of privacy. Given the invasion of privacy must not only be serious, but the defendant must have invaded the plaintiff’s privacy intentionally or recklessly, the ALRC considers the plaintiff should not also have to prove that they suffered actual damage. The tort should be actionable per se.
8.5 Further, in many cases a serious invasion of privacy will cause emotional distress, rather than a type of harm traditionally treated by the law as ‘actual damage’. Making the tort actionable per se, like an action in trespass, will enable the plaintiff to be compensated for emotional distress caused by the defendant’s intentional or reckless conduct.