4.42 In the following chapters, the ALRC proposes the elements of a new tort for serious invasion of privacy. There are five elements, and each of them must be satisfied for the plaintiff to have a cause of action. There are significant interactions between the elements, and the ALRC’s reasons for proposing the content of one proposal will often depend on the proposals for the other elements. It is therefore important to consider these elements together.
First element: The invasion of privacy must occur by:
(a) intrusion into the plaintiff’s seclusion or private affairs (including by unlawful surveillance); or
(b) misuse or disclosure of private information about the plaintiff.
Second element: The invasion of privacy must be either intentional or reckless.
Third element: A person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances.
Fourth element: The court must consider that the invasion of privacy was ‘serious’, in all the circumstances, having regard to, among other things, whether the invasion was likely to be highly offensive, distressing or harmful to a person of ordinary sensibilities in the position of the plaintiff.
Fifth element: The court must be satisfied that the plaintiff’s interest in privacy outweighs the defendant’s interest in freedom of expression and any broader public interest in the defendant’s conduct.