8.1 This chapter considers the fifth element of the new tort. The ALRC proposes that in order for a plaintiff to have a cause of action, 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.

8.2 This proposal recognises that privacy is not an absolute right, and that other interests may, in some cases, outweigh a plaintiff’s interest in privacy.

8.3 The ALRC also proposes that the new Act should provide guidance on the meaning of ‘public interest’, through the inclusion of a list of public interest matters including, but not limited to, freedom of expression, freedom of the media, public health and safety, and national security.

8.4 Since the weighing of privacy interests against other interests is an element of the cause of action, a separate public interest defence is not required.