5.1 In this chapter, the ALRC proposes two of the five elements of a new tort for serious invasion of privacy.

5.2 Firstly, the ALRC proposes that the new tort be confined to two types of invasion of privacy. The plaintiff must prove that the invasion of privacy occurred either 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.

5.3 These two types of invasion of privacy are widely considered to be the core of a right to privacy—and the chief mischief that needs to be addressed by a new action. Confining the tort to these two types of invasion of privacy will also make the scope of the tort more certain and predictable.

5.4 Secondly, this chapter considers the fault element of the new tort. The ALRC proposes that, for an action under the tort to succeed, the invasion of privacy must be either intentional or reckless. These fault elements are common to existing torts of trespass, such as assault and battery. The ALRC considers that other possible fault elements (such as negligence or strict liability) may make the scope of the new tort too broad.