5.1 The ALRC recommends that for an action under the new tort, a plaintiff must prove that their privacy was invaded in one of the following ways:

(a) intrusion upon seclusion; or

(b) misuse of private information.

5.2 Intrusion upon seclusion will usually involve watching, listening to, or recording someone’s private activities or private affairs. It can also involve unwanted physical intrusion into someone’s private space. Examples might include taking a photo of someone in a change room, reading their bank statements, tapping their phone calls, or hacking into their computer.

5.3 Misuse of private information will usually involve collecting or disclosing someone’s private information. Examples might include publishing a person’s medical records in a newspaper or posting sexually explicit photographs of someone on the internet, without their permission.

5.4 These two categories 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 cause of action.

5.5 The two types of invasion may sometimes overlap: taking a photo of a person in the bathroom may be both an intrusion into their seclusion, as well as a wrongful collection of private information. Perhaps more often, a misuse of private information will follow an intrusion upon seclusion: a photo will be wrongly published, after it was wrongly taken.

5.6 Confining the tort to these two types of invasion of privacy will make the scope of the tort more certain and predictable. Invasions of privacy that do not fall into one of these two categories of invasion will not be actionable under this statutory tort.

5.7 This first element of the tort cannot be considered in isolation, because much turns on the question of what is ‘private’. To determine what is private in a particular case, the second element of the tort must be considered, namely, whether a person in the position of the plaintiff would have a reasonable expectation of privacy. This is discussed in Chapter 6.

5.8 In other chapters of this Report, the ALRC recommends that the invasion of privacy must be committed intentionally or recklessly, must be found to be serious, and must not be justified by broader public interest considerations, such as freedom of speech.