I’m not sure I agree with Nicole on the civil aspects.

I agree that “just because a bunch of people in a bar happened to see two people having sex, doesn’t mean it’s okay to film them and post the clip on YouTube.” Agreed on the offensiveness part too.

But – just because you can have a reasonable expectation of privacy even if you did a thing in public, that doesn’t mean this particular couple's expectation was reasonable. The fact the publication was “offensive” should only count towards the second limb of the test and it seems that popular opinion is conflating the two. Surely the first limb can be failed through reckless disregard for one’s own privacy. I find it hard to believe the couple involved wouldn’t lose on the “reasonableness” requirement when they left the lights on, knowing there was a bar next door. I accept given they were allegedly having an affair, they probably did not intend to be viewed – but surely they were so reckless about being seen that any expectation was not “reasonable”.

On a separate point, is there law on whether a person has a reasonable expectation of privacy in the fact they are having an affair (as opposed to the recording of said affair)? Would the analysis be different?