6.1 This chapter concerns the third element of the new tort. The ALRC proposes that, to have an action, a plaintiff must prove that a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances.

6.2 This is an objective test. The subjective expectation of the plaintiff may be a relevant consideration, but it is not the focus of the inquiry.

6.3 The ALRC also proposes that the new Act include a non-exhaustive list of factors which a court may consider when determining whether a person would have had a reasonable expectation of privacy. This is designed to provide guidance and assistance to the parties and the court.

6.4 The proposed factors include, among other factors, the nature of any information disclosed; the means used to obtain private information or intrude upon the plaintiff’s seclusion; whether private information was already in the public domain; and the place where an intrusion occurred.

6.5 Two related issues—the defendant’s interest in freedom of expression, and the public interest in the defendant’s conduct—are considered together in Chapter 8.