NZ's landmark decision on privacyby Karl du Fresne
The “peeping and prying tort” judgment in the case of a man who secretly recorded his flatmate in the bathroom sets new privacy boundaries for New Zealanders’ personal lives.
A man conceals a recording device in a ceiling cavity and secretly video tapes his female flatmate as she undresses and showers. An intolerable invasion of privacy?
Most people would unhesitatingly say yes. Yet until recently, it was one for which the victim was powerless to seek a remedy under New Zealand privacy law. Now, in what legal commentators are hailing as a significant development, a High Court judge has ruled the young woman may sue
her former flatmate for damages.
The decision, in a case known as C v Holland, breaks new ground – lawyers are referring to it as the peeping and prying tort. Previously, a person whose privacy had been invaded could take legal action only if private information had been made public, or was at risk of being made public, in a way that a reasonable person would consider highly offensive. But in the High Court at Christ church, Justice Christian Whata has ruled the mere fact someone has intruded on another person’s private affairs in an offensive manner is itself grounds for legal action. No publication, or even threat of publication, is necessary.
Wellington barrister John Edwards, who specialises in privacy law, says the decision – which is being appealed – “fills a hole” in the law. The court has recognised, he says, that intrusive conduct of the type evident in the Holland case can disturb the victim’s peace of mind and sense of personal autonomy, even though nothing has been disclosed to anyone else.
ARE CELEBRITIES FAIR GAME?
The decision comes at a time of heightened international interest in privacy issues. Paparazzi shots showing the Duchess of Cambridge sunbathing topless in France caused a furore, but this was nothing compared with the outcry after Australian radio station 2Day FM deceived London hospital staff with a hoax call and broadcast it without consent, which is being blamed for a nurse’s apparent suicide.
Closer to home, unflattering photos of former UB40 singer and New Zealand’s Got Talent judge Ali Campbell relaxing shirtless on an Auckland balcony were published in Britain’s Daily Mail and in the Herald on Sunday. Campbell said he was “gutted” by the intrusion on his privacy.
Commentators say Justice Whata’s ruling would probably have no bearing on cases like those of Campbell and the Duchess of Cambridge, since the photographs appeared to be taken from a public place and may not have crossed the “highly offensive” threshold established in New Zealand law. Nonetheless, the decision in the Holland case pushes out the boundaries established in the previous landmark privacy case, involving broadcaster Mike Hosking in 2003.
In that case, Hosking and his estranged wife, Marie, sought to prevent publication by New Idea of photographs showing Marie and their twin daughters shopping in Auckland’s Newmarket. The photos – taken by Simon Runting, the same man whose byline appeared under the Campbell photos in the Daily Mail – were taken to illustrate an article on the couple’s first Christmas apart.
In the High Court, Justice Randerson rejected the Hoskings’ application. The Court of Appeal also unanimously ruled against the Hoskings, pointing out the twins were in a public place, so there could be no reasonable expectation of privacy. But the appeal judges seized the opportunity to review privacy law generally, and in a ground-breaking majority decision recognised a new common-law right to privacy.
In what became known as the Hosking principles, the court held that people had a right to prevent unjustified public disclosure of information about their private lives in circumstances where an objective, reasonable person would consider the disclosure highly offensive. The judges explicitly left the door open for the law to be developed further – and now it has.
AN INTIMATE VISUAL RECORDING
Under the Hosking principles, the plaintiff known as “C” in the Holland case would have no claim, since her flatmate didn’t publish the clandestine videotape. But the judge held nonetheless that she had suffered “an intrusion into her seclusion” that warranted a remedy.
The court heard that C, aged 25, shared a house with her boyfriend and the 27-year-old defendant, a builder. The defendant secretly recorded two video clips before and after C showered, showing her both partially dressed and completely naked. Her back, breasts and pubic area were exposed. The two clips, which ran in total for three minutes and 46 seconds, were downloaded to an external hard drive. In an ironic twist, the video clips were discovered when the defendant allowed C and her boyfriend to watch movies on his laptop. While searching for movies, the boyfriend spotted a link to recently viewed files that the defendant had named using C’s nickname.
The two video clips were subsequently found on a hard drive in the defendant’s room. The police were informed and charged him with making an intimate visual recording, an offence under the Crimes Act. He pleaded guilty and was ordered to pay $1000 in reparation for emotional harm, but was discharged without further penalty. Not satisfied with that outcome, the “deeply distressed” woman decided to sue for breach of privacy. The defendant accepted he had invaded C’s privacy but his counsel, Greg Hair, argued that under the Hosking principles, legal action could succeed only if “private facts” had been publicised – which hadn’t happened in this case.
As legal commentator Steven Price has suggested: “The court was immediately faced with the issue of whether the tort [civil wrong] of invasion of privacy can extend to situations where there has been intrusive behaviour but no publication of private facts. The leading case, Hosking v Runting, left this question open. The High Court has now answered it: yes.”
Justice Whata held that to establish a claim for breach of privacy, a plaintiff needed to demonstrate that:
- there was an intentional and unauthorised intrusion;
- the intrusion was into intimate personal space, activity or affairs;
- it involved infringement of a reasonable expectation of privacy; and
- it was highly offensive to a reasonable person.
The last two elements reflect the Hosking principles, but the first two are new. Justice Whata acknowledged that C’s was a “novel” claim, since there was “no existing authority … for the proposition that an intrusion upon an individual’s seclusion in breach of a reasonable expectation of privacy gives rise to an actionable tort in New Zealand”.
GLACIAL LEGAL EVOLUTION
As surprising as that may seem, commentators say it reflects privacy laws that are evolving slowly and incrementally. Parliament has largely left it to the courts to formulate privacy laws, and the process is unfolding with what may seem, to the outsider, to be a glacial pace.
In reaching his decision, Justice Whata – a relative newcomer to the judiciary, having been appointed last year at the age of 42 – drew on American and Canadian jurisprudence dating back to the famous text “The Right to Privacy”, published in America in 1890. Legal commentators have welcomed his judgment as bold and persuasively argued, and say it places New Zealand well ahead of the UK and Australia in the development of privacy law.
Barrister Steven Rollo, who represented C, sees the decision as a natural flow-on from the Hosking case. Protecting one’s privacy and dignity, he argues, is not just a matter of ensuring that private information isn’t publicly disclosed. It also involves recognising “that we behave differently when we think we are on our own – that there is a core part of us that is intensely private”.
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