9.84 The ALRC has recommended a discrete public interest balancing exercise. Another option is to have public interest matters considered when determining whether the plaintiff had a reasonable expectation of privacy.
9.85 Public interest matters will sometimes be relevant to the question of whether the plaintiff had a reasonable expectation of privacy. For example, if private information is published about a politician, the fact that the information is about a politician may be relevant both to the question of whether the politician had a reasonable expectation of privacy, and to whether the publication of the information is in the public interest.
9.86 At other times, it may be artificial to consider public interest matters when determining whether the plaintiff had a reasonable expectation of privacy.
9.87 The NSWLRC argued that the two issues of whether or not a matter is legitimately private, and the significance of competing interests, are not always clearly separable.
Thus, a competing public interest may be of such force in the circumstances that the case will focus principally on it in reaching a conclusion that no reasonable expectation of privacy arises.
9.88 However, given the importance of considering competing public interests, the ALRC considers that there should be a clear and discrete public interest element in the cause of action.