7.1 This chapter is concerned with the fourth element of the new tort—the threshold of seriousness. Two distinct but related questions are considered. The first question is whether the new tort should only be actionable where the invasion of privacy was serious, and if so, how this threshold of seriousness should be set out in the new Act.
7.2 The ALRC proposes that there should be a threshold, and that it be set in the new Act using the word ‘serious’.
7.3 The new Act should also provide that, in determining whether an invasion of privacy is ‘serious’, a court may consider whether the invasion was likely to be highly offensive, distressing or harmful to a person of ordinary sensibilities in the position of the plaintiff. These factors would provide a greater degree of certainty about the meaning of ‘serious’, while also establishing the ways in which a serious invasion of privacy may affect the plaintiff.
7.4 The second question is whether the plaintiff should be required to prove that he or she suffered ‘actual damage’ due to the defendant’s act or conduct. The ALRC proposes that the plaintiff should not be required to prove ‘actual damage’; that is, the tort should be actionable per se.
7.5 This second proposal recognises that in most 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.