Agenda:
*Privacy - Lectures 1 and 2:
*
*Overview of Privacy
*Development of Privacy: Public Disclosure of Private Facts
*UK Approach: Breach of Confidence
*Public Disclosure of Private Facts:
*Hosking v Runting
*Developments between Hosking and Henderson
*Henderson v Walker
*Privacy - Lecture 3:
*
*Hyndman v Walker
*Driver v Radio New Zealand Ltd
*Peters v AG
*Dew v Discovery NZ Ltd
*
*Intrusion into Solitude or Seclusion: C v Holland & Faesenkloet v Jenkin
*Misappropriation of Likeness: X v Attorney-General
Overview of Privacy (1):
*Privacy Defined
*
*U.K. Approach: Breach of Confidence (Equity Origin)
*
*U.S. Approach: 4 Different Privacy Torts:
*
1)Unreasonable intrusion into the solitude or seclusion of another
●
2) Public disclosure of truthful (but embarrassing) facts
3)Publicity that places the plaintiff in a false light in the public eye
●
4) Unlawful appropriation of an individual’s name or likeness
Overview of privacy (2):
*NZ Approach: 2 Different Privacy Torts:
*
1) Public disclosure of private facts
Tucker; Bradley; Marris; P v D; L v G; Hosking; Henderson; Hyndman; Driver; Peters; Dew
2) Intrusion into solitude or seclusion
Fahey; Holland; Jenkin
*For other privacy concerns, need to rely on other causes of action.
Development of privacy (1):
Public disclosure of private facts:
*Taylor v Beere
*
*Tucker v News Media Ownership
*
*Marris v TV3
*
*Bradley v Wingnut Films
*
*TV3 v Fahey
Taylor v Beere:
FACTS:
Women with 5 children and 7 grandchildren
The plaintiff discovers that plaintiff has a copy and looking to publish a book about sex.
Numerous photographs
Some are indecent
The grandmother pleads defamation
Public disclosure of private facts not a tort in NZ until Tucker
Sued for defamation → defamatory that she was associated with book
COURT:
Awarded exemplary damages based on defamation. → because the tort was not available at that time.
TUCKER V MEDIA NEWS OUTLET:
COURT:
Judge stated that they support introduction of personal privacy torts by private facts.
Tort is well known in the US.
Support it → but not going to adopt it
Whether by common law or statute
Legislature intervenes
Inviting the legislature to get involved
Better if done through statute
Tucker also felt it was a natural development of IIED.
MARRIS V TV3:
FACTS:
Dr Marris was a doctor subject to the medical practitioners committee for improper diagnosis of patient in relation to illness.
Camera man hid in bush
Knocked on the door
Asks to stop the screening (injunction)
COURT:
Important question? → is in terms of trespass, but privacy not as serious → intrusion into seclusion → not about a private fact, intrusion into seclusion
Not a head they could sufficiently argue.
BRADLEY V WINGNUT:
FACTS:
Public disclosure of facts case → First
Bradley’s have burial plot with Headstone in cemetery
Appears for 14 seconds in the film → cannot read it properly
Bradley’s see it in this gory film and dont want their headstone to be in the film
ARGUE:
Try multiple causes of action
IIED did not work → try privacy.
COURT:
Public disclosure of facts is part of the law in this country.
Said they will adopt the Tort of public disclosure of facts → First time → New Tort adopted. → Bradley is significant for establishing this tort → regarded with causation → Tentatively
Rights of individual must be balanced against freedom of expression → and right to have a private life (if it is a right)
Facts disclosed must be private and not public ones → Tombstone is public
This case dies on element two → Not by its very nature a private one
Element: Highly offensive to reasonable person with ordinary sensibilities →| FAILS ON THIS ELEMENT → not objectionable in this case → only in the film for 14 seconds, only proportionally in the film
Reasonable person would not be as concerned at this as much as the Bradleys.
TV3 v Fahey:
FACTS:
TV3 aired a tv show which showed Fahey as a sexual predator
In response to TV Show women would go in and confront him about the sexual misconduct
TV3 said they would show the hidden footage from this interaction
CA → held that the injunction should be removed → because when dealing with freedom of expression → need a very strong case when dealing with granting an injunction → need an adequate remedy.
Said it was an adequate remedy → And allowed to screen the programme.
PRIVACY ISSUE:
Discussion asto intrusion into seclusion being the correct tort to be applied
The fact that the women were there → means the implied license should be revoked → as they were trespassing → intrusion to seclusion would also be an issue.
Privacy → links in chain for liability → One: intrusion. Two: Disclosure of private facts.
Different torts which can be raised on different fact patterns → initial intrusion and then subsequent disclosure
Development of privacy (2):
Public disclosure of private facts:
*P v D
1) The disclosure of the private facts must be a public disclosure and not a private one.
2) Facts disclosed to the public must be private facts and not public ones.
*
3) The matter made public must be highly offensive and objectionable to a reasonable person of ordinary sensibilities. (Objective Test)
4) The nature and extent of legitimate public interest in having the information disclosed.
*Note: Is this a factor or part of a defence?
P V D:
Facts:
Newspaper article that conveyed plaintiff to be a mental patient
Decision:
Elements for breach of confidence (Coco case as well)
First → information itself must have the necessary quality of confidence about it
Second → the information must have been imparted in circumstances importing an obligation of confidence.
Third: there must be an unauthorised use of that information to the detriment of the party communicating it.
Must have relationship of trust and confidence for regular breach of confidence → breach of confidence must have in inherent fiduciary relationship in its contents.
SIDE NOTE: UK → breach of confidence used to create new tort.
IN NZ → regular breach of confidence → not to apply to media journalist and regular person → information imparted in fiduciary relationships. → debate in NZ Court regarding this (Hosking v Runting)
Coco test → for disclosure of private facts (public)
LAST ELEMENT: Legitimate public interest → may be private but there is a public interest to know these facts.
Hosking v Runting → Two elements → and public interest
Development of privacy (3)
Public disclosure of private facts:
*L v G
*Re-write of (4): Any legitimate public interest in the disclosure of facts would be insufficient to override the right to privacy in respect of them.
*
*You do not be able to identify the person to whom the facts relate in the public disclosure.
*
*Hosking v Runting: Next Class
FACTS:
Prostitute and client
Allows photographs of her from client
These photos are of an intimate nature
Not clothed
He takes one photograph of her region from the waist to the knee → and zooms in on her private part.
Sells to an adult magazine and it is published (scandal magazine)
She sues in public disclosure of private facts
COURT:
First case where monetary award was given ($2500)
They believed that the photos were taken in a situation where there was a relationship (private) and she said you could take photos but not use them
Found her credible
By giving the photos to magazine → it was a breach. → and disclosure of private fact.
Nobody knew → but Court said → dont need to know who the person is but WILL EFFECT QUANTUM OF DAMAGES → if it had a birthmark or identifying features, or her name → quantum would be more.
Can have breach → that doesn’t link to person to who it relates (no identifying factors)
SIDE: Behave differently in private compared to public → one of the key aspects of privacy → in L v G.
SIDE: We are not aware of mental damage → but not enough to not give an award even though it is not a large amount of damages.
BIG PICTURE QUESTIONS:
*How widely does personal information have to be disseminated to comprise “public disclosure”?
Peters v Attorney General → only has to be one person that you disclose → but could impact damages award → Damages sum is very low compared to the amount it is to bring it to Court.
*To what extent does the plaintiff need to be identifiable?
L v G → Don’t need to be but will impact damages.
*Can public facts become private over time?
Tucker → Criminal record may be buried over time → clean slate act → so you don’t have something to follow you for the rest of your life.
Somebody serves time → should not have wrongdoing follow them into perpetuity
Something can become private over time.
*Should public figures forgo any right to privacy or can there be separation of their private and public selves?
UK Approach:
Breach of Confidence:
*Bernstein of Leigh (Baron) v Skyviews & General Ltd
*
*Attorney-General v Guardian Newspapers Ltd (No. 2)
*Kaye v Robinson
*
*Douglas v Hello! Ltd
*
*Wainwright v Home Office
*
*Campbell v MGN Ltd
*
*Mosley v News Group Newspapers Ltd
UK had stern position that privacy in torts were not a thing.
Bernstein:
Facts:
Defendant taking aerial photographs of lord Bernstein
Tried to sell pictures to the owners
Lord Bernstein is annoyed at this and states you shouldnt be flying over and taking photos
Defendant did not receive the letter → secretary that was working at the business → thanked him for letter and asked to give 15 pounds
Made threat of litigation
Ashby who is head finds himself in Court
Privacy was not a cause of action
Discussed whether there was liability in terms of trespass
COURT:
Balance rights of owner to use land → Compared to public
Restricting rights of owner to others in airspace → so effectively they are allowed enjoyed use of land → only have privacy up to a certain level (airspace)
SIDE NOTE: Drones (new issue in terms of drones could potentially cause issues for litigation)
AG v Guardian Newspapers:
Facts:
Dealt with MI5 spycatcher
Former Mi5 agent and in the book wrote about all unlawful activities that MI5 did while he was in service
MI5 not happy
Entered AUstralian publication company
MI5 seeked an injunction
Person published first part.
Should a further injunction be granted for future injunction
COURT:
Not secret as already published
But how can cause of action arise → contracts, confidence.
SIDE: Fiduciary relationships, and confidentiality → so could be different causes of actions, breach of contract, and breach of confidence
They tried to run breach of confidence
Kaye v Robinson:
Facts:
Well known actor who is driving and an object goes through his windscreen
Damages him significantly
Has to have surgery for reconstruction
Person took photos of him and interviewed him
Did not have capactiy to consent because of morphine
COURT:
Wanted injunction to not have this published
Lot of causes of actions
No actionable right to privacy in UK law
Need to address this issue → Breach of confidentiality does not work → no confidential relationship between photographer and Actor.
Douglas v Hello! Ltd:
Facts:
Two Actors get married
Sell rights to marriage to paper
Another publication gets hold of paper → Hello
Hello wants to publish
They want to stop this as original publisher they gave rights to did not and they wont make money
COURT:
Said Hello was allowed to post photos → but can sue on breach of confidence to get damages
First case where they would extend Coco → do not need a confidential agreement anymore
Sedley LJ → Law has to protect trust abused, and unwanted intrusion into public lives → can recognise privacy itself as valuing public autonomy. → no confidentiality needed.
Circumstances could suffice in some cases → for breach of confidentiality. → extended beyond regular commercial and employment agreements in the UK
WAINwright v MGN LTd:
Mother and son visit other son who is in prison
Other son is mentally disabled
Prison guard demands to serach them
Strip search metnally disabled boy
Touched him in private parts
Boy and mother are upset
Stated it was not intentional as they were security guards
Sought damages → battery, and invasion of privacy
COURT:
Said no invasion of privacy
No IIED → no intention to inflict emotional harm
Not wanting privacy to be a tort in UK
CAMPBELL V MGN LTD:
Campbell said in newspaper that she did not do drugs but she lied
MGN posted a publication saying that she was doing drugs
She seeks injunction to stop publication
COURT:
Yes breached confidence on this new test
Then Appealed → say no
HOL:
Five HOL judges looked at it
Divided
They say it is a breach of confidence
They printed it so it was for damages
TEST: reasonable person in ordinary circumstances would find this offensive → that they have published things about drug rehab meetings etc.
Treatments that she is going to → that is akin to medical treatment → and that is confidential
And as a result → publication was allowed to say that she lied about drug issue
But could not publish her going to the meetings as they are private → went beyond what was reasonable → in public eye she lied
But the meetings are private
JUDGEMENT HOL:
The publication of that information was beyond → what was reasonable for free press. → added to intrusion of private life → Outweighed right to freedom of expression
NOTE: → photo was taken in public place, but due to what they were disclosing it was a private fact.
NOTE: → medical treatment is treated privately.
MOSLEY v News Group Newspapers Ltd:
Facts:
Mosley is son of British Fascist who becomes the owner of F1
President (Oswald Mosley) → the defendant is publisher of news of the world
Defendant published article → no injunction
Said → nazi boss has nazi orgy
Women were paid to intend → publish
One of the factual issues in the case → was whether it was nazi themed or not
One female has hidden camera at party
They want to publish
COURT:
There was a breach of confidence → had reasonable expectation of privacy
Dont need confidential information → new law
Breach on confidence, self esteem
Is intrusion proportionate to public interest? → EU convention of Human rights → sexual activity is a private matter → so it is protected
Dont want an invasion of privacy tort
Exemplary damages are awarded → loss of dignity etc. 60k Pounds awarded
IMPORTANT NOTE: Sexual conduct is significant aspect of human life → not for media to expose sexual conduct → publication aim was to satisfy curiosity about private life → not of interest to society
Public disclosure of private facts: Hosking v Runting (HC):
*Facts, Issue & HC Holding
*
*HC Reasoning:
*
1.NZ does not need a privacy tort;
●
2.The NZ cases to date have been wrongly decided;
●
3.The courts should not be developing the law;
●
4.The best way to protect privacy is through the action in BOC as the UK has done; and
●
5.There is no reason why the NZ courts should not develop the action for BOC to protect personal privacy.
*CA Holding
*
*CA Reasoning:
*
1.Privacy & confidence are different concepts;
●
2.BOC elements are well established and apply in NZ;
●
3.However, there is a privacy tort in NZ for public disclosure of private facts;
●
4.The privacy tort will develop through case law over time; and
●
5.Tort called “invasion of privacy” not “breach of privacy” (Tipping J.).
●
HC:
Justice Randerson
Prior to this we only have other HC decisions.
FACTS:
Mike Hosking has two twins. Two sets of children
Rosking had a nanny who was pushing a a children stroller
Pushing them in strollers
He has twins and nanny is pushing them down the road in Newmarket
Tabloid snapped pictures to post on tabloid
MIke Hosking and wife do not want these photos on the tabloid
Go to seek an injunction to stop the publication
HC:
Justice Randerson
Should an injunction be granted?
Says No.
Outcome is not surprising → because there is nothing confidential about people who are being pushed down on a stroller in a public sidewalk
But it is a child
Children have not sought publicity (UK case about Rowlings children) → UK → said NZ did not consider the childs right enough and preserve their privacy
BUT HC → said anyone can see a child doing this
REASONING → went with breach of confidence not public disclosure of private facts
Said NZ does not need a privacy tort → and said all of the cases were wrong
Said Courts should not be developing the law
If we are going to have privacy law → We should not have Courts
Best way is to protect privacy through the action in BOC → should just follow the UK test in Coco.
Hosking listens to the questioning and realising it is not going their way
CA:
Court of Appeal runs a 207 paragraph judgement
3;2 decision
Courts said by a bare majority → we have a tort of public disclosure of private facts
Overturn Randerson decisions
Hoskings still lost →
DECISION AS TO WHY THEY DID NOT SUCCEED:
Para 45 → discussion about breach of confidence approach → lead to same outcome →
Privacy and confidence are different concepts → cannot confuse the concepts
One coming from equity → and another coming from Privacy → different base
P and D → got it wrong
Two elements → 1. The existence of facts in respect in which there is a reasonable expectation of privacy. 2. Publicity given to those facts that would be considered highly offensive to an objective reasonable person
Defendant has burden of proof to raise the argument that there is a legitimate public interest → Freedom of expression etc.
245 → UK have not found a breach of privacy tort, same as AUS → necessary for Courts to strain the tort of confidence → becomes artificial.
CA → Common law needs to plug the gaps → they are doing so by saying public disclosure of private facts is a tort.
Elements: Public Disclosure of private facts
*Elements:
*
1. The existence of facts in respect of which there was a reasonable expectation of privacy; and
●
2. Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.
●
*Defence: Legitimate Public Concern
TEST IN NZ BY CA:
Elements:
1. The existence of facts in respect of which there was a reasonable expectation of privacy
2. Publicity given to those facts that would be considered highly offensive to an objective reasonable person
Developments since Hosking
*Mafart v TVNZ (CA): “Private facts”
*
*Andrews v TVNZ (HC): “Highly offensive to the reasonable person”
*
*TVNZ v Rogers (SC): Approach development of tort with caution
*
*Brookers v Police (SC): Majority vs. Minority
ANDREWS v TVNZ:
Filming of road accident individuals
Intimate conversations between the plaintiffs → nothing shocking about what you were saying
TVNZ wanted to show these conversations
COURT:
They held that they did not have a right to do that
Something which occurs in a public place is unlikely to give rise to a reasonable expectation of privacy
However the conversation which would normally outside of earshot → you would expect to be private → private fact → private conversation
1st element succeeded:
Second element → there was not anything offensive about what they were discussing
If there is something offensive → such as why were you speeding → incrimination → you want a reasonable expectation of privacy
There was nothing offensive → so allowed to air.
TVNZ v ROGERS:
Police video tape which contains omission that she was responsible for death of woman in 1994
Confesses this in tape
Tape is inadmissable
And found not guilty of her death
The video tape is releasd to TVNZ
TVNZ want to make a documentary to see whether he was guilty
HE seeks an injunction to stop them airing the video tape
CA → allowed the appeal
Public interest outweighed his interest → injiunction removed
Appeal to SC
Question → Does the interest of freedom of speech and public interest outweigh his personal interest
SC:
Bare majority said
His privacy interest was outweighed by public interest
So they were allowed to air this.
Para 23 → ELIAS → scope of underlying claims →
Mcgrath 101 → photos contain more information than text.
Justice Anderson → the issue of breach of privacy → endorsing the law of CA in Runting
Jurisprudence of that case decided by bare majority
They think we have the tort → but have to wait and see what SC says when they get appropriate case
BROOKERS v POLICE (SC):
FACTS:
Said female police officer acted unfairly
Knocks on her door at night
Wears placard outside and sings
Makes himself annoying
He is arrested and charged with disorderly condiuct
Were his actions disorderly
JUDGES:
Freedom of expression and privacy interest
Concerns around freedom of expression (singing) and privacy interest
3;2 majority → Said he was not disorderly
The dissent → Chief Justice Elias → majority → the act is to preserve public order not related to privacy interests
Minority → McGrath → Constable is entitled to a private life like ordinary citizen → needs to be free from intrusion into privacy → does not go to public disclosure of private facts → actions were disruptive to her expectation of privacy.
Standing on a public pathway
Justice Thomas → starts talking about privacy as a right → not a value or interest → but every person has a right to privacy → because when we are looking at rights they have a higher value than interests
Important jurisprudence → privacy is a fundamental value → and even likely to be a right
And states privacy outweighs freedom of expression
164 → Should be regarded as a fundamental value → two fundamental values of freedom of expression and privacy
Competing interests → preserve values underlying each right
Henderson v Walker (1)
*Facts
*
*Issue: BOC and/or breach of public disclosure of private facts?
*
*Holding
*
*Reasoning
FACTS:
Liquidator of company that Henderson is in charge of
Bad blood between
Walker sees himself as an avenging angel that he is liquidating
First line of judgement → to say there is bad blood is an understatement
Property ventures limited → company of Henderson → put into liquidation
Walker put as liquidator
Liquidation is stayed
Mr Walker needs to stop
But does not stop → even though order to stay on liquidation
There is a search warrant given to go into PVLs workplace
Laptop found → Walker gets police to hand over this information as liquidator from police
Starts digging into Laptop and Tapedrive
Starts to disseminate this information to particular people
Gives tapedrive and laptop to the official assignee → who is looking into the Bankrupcy of Henderson
Henderson is not happy
The information on Tapedrive → humiliation distress to Henderspon
HENDERSON TAPE DRIVE → personal emails talking to wife about marriage, mental breackdowns, weight loss, fitness, phots of family friends and pets,, privileged material,
Five disclosures they found as breach of confidence → as liquidator has to keep certain information private
Public disclosure of facts → gave all the content to assignee → was public disclosure of private facts
DAMAGES:
It was signfiicatnly reduced because OA had power over the information
DECISION:
Henderson v Walker (2)
*Publicity (not the information) must be highly offensive [206] – Do you agree?
*
*Publicity does not need to be widespread [216] – [217]
*
*Boundary between PDPF and Intrusion into Seclusion may not be clear cut [218]
*
*Relationship of confidence is required for BOC cause of action [160]
*Best practice: Keep private communiations on personal email account / computer
*
*In any event, private emails on computer are private documents
*
*Liquidators need to respect private communications and adhere to terms of a stay
Publicity must be highly offensive → not the fact → PUBLICITY HAS TO BE OFFENSIVE → JUST DISCUSSION NOT LAW YET.
Second → publicity does not need to be widespread → Peters v Attorney General → can be dissemination to one person
Relationship between PDPF and intrusion into seclusion may not be clear cut
Keep private communications on personal email account/computer
Liquidators need to presepct private communications and adhere to terms of a stay.
Lecture 2 Agenda
*Privacy – Lecture 3:
*Public Disclosure of Private Facts (continued):
*
*Hyndman v Walker
*Driver v Radio New Zealand Ltd
*Peters v AG
*Dew v Discovery NZ Ltd
*
*Intrusion into Solitude or Seclusion:
*
*C v Holland and Faesenkloet v Jenkin
*
*Misappropriation of Likeness:
*
*X v Attorney-General
Hyndman v walker
*Facts
*
*Issue
*HC Holding
*
*CA Holding
*
*Reasoning
FACTS:
Hyndman is friends with Henderson
And sues Mr Walker for PDPF
And another piece of litigation dealing with Mr Walker.
JUdgement:
Para 2 and 3 → Hyndman asks to modify tort by removing highly offensive requirement → highly offensive is moulded into substantial, which is more expansive. Still highly offensive but substantial.
Need a substantial offense not highly offensive → NOT CHANGED YET, just discussion.
One email → talking about relationship issues
The more limited the audience the harder it is to say it is highly offensive.
Nothing embarrassing in the email.
The judges emphasise that what must the highly offensive is the publicity itself.
Court in UK → has seven factors for reasonable expectation of privacy → So we need to add this
1. Were the attributes → what were the attributes of claimant
2. Nature of activity claimant was engaged
3. The place which it was happening
4.the nature and Purpose of intrusion
5. Absence of consent
6. Whether it was known or could be inferred
7. The effect on the claimant and the circumstance sin which the information came into the hand of the publisher.
TEST:
Test is the one in Hosking v Runting
But the Court is grappling with how it will change in the future
And Factors that you will apply for objective reasonable person in Hosking and Runting
Factors you can consider for there to be a reasonable expectation of privacy.
Peters v A-G
*Facts
*
*Issue
*HC Holding
*
*CA Holding
*
*Reasoning
CA in 2021:
FACTS:
Peters received a nz superannuation payment
And he is the leader of NZ first, and Deputy Prime Minister
Keeps his private life private
Get superannuation payment that is more than it should
He quickly pays them back → because they have overpaid them
Part of the issue was that someone in MSD → disclosed the information about the overpayment
And he is not happy
JUdgement:
Had reasonable expectation that payment in regulatory is a private fact
And should not be disclosed unless public interest
Issue → could not pinpoint who did the disclosure → so could not get a remedy
Yes had a public fact that was privately disclosed → don’t know who did it so no remedy.
Hyndman elements quoted → for reasonable expectation of privacy.
Privacy is essential to human dignity and autonomy
NZBORA does not confer a privacy right
Section 28 → other rights and freedoms are not protected
Section 5 → rights affirmed in the act → may be prescribed by reasonable limits
119 → disclosure to one person can be disclosure of private facts → small group or one person → needs to be reframed where there is a private concern even if it is just one person.
May be a new defence → legitimate public interest (old one)
And one that is akin to qualified privilege defence
Privileged occasion → interest legal, social duty to impart the information
Qualified privilege → not viable if it is done by ill-will.
Driver v Radio New Zealand Ltd
*Facts
*
*Issue
*HC Holding
*
*Reasoning
FACTS:
Reporting on her time in India
Outrageous claims by Indian media and then picked up by the NZ media
Additionally there is video footage ot her being confronted
And people who tried to interview her family in NZ
And aired the interviews of her family members
Strike out application → similar to interim injunction has elements
Strike out → causes of actions causes no reasonably arguable causes of actions
JUDGEMENT:
Privacy:
Engaged in a Ponzi Scheme → claim
REsidential address
Video footage of her reaction → of her being confronted in her hotel room
Her family members
Court: → said both elements not met
High profile → reasonable expectation of privacy diminished if you are in the public eye
Principal sued in defamation → Justice held that high profile principal could have no reasonable expectation of privacy of investigation that he assaulted his wife
90 → Plaintiff says highly offensive because defamatory, sensational and factually incorrect
COURT: → can there be a reasonable expectation of privacy in the fact of arrest
Two decisions including → principal case (Claig) → allegation was battery, and was being reported on
Ms Driver → was unknown to the world → Driver was unknown to the world and thrust into publicity → said she was a reluctant debutante
:Conceivable that some individuals have an expectation of privacy within arrest.
Seriousness of allegation would be a factor.
Reasonably arguable that a person in Ms Driver’s situation would have a reasonable expectation of privacy prior to a charge being laid.
Even though the events happened in India the law could be applied in NZ
Expectation of privacy → in NZ → for media in NZ
Was any reasonable expectation of privacy lost in India
Because it happened publicly → it could potentially be a public fact
Dew v Discovery NZ Ltd
*Facts
*
*Issue
*HC Holding
*
*CA Holding
*
*Reasoning
Case concerned an interview done by a reporter
Child sexual abuse that people had while they were apart of catholic society
Cardinal dew is the abuser
COURT:
Argument that person under criminal investigation should have reasonable expectation of privacy → there is no reasonable expectation of privacy
Dew said the allegations were untrue → and publication would be offensive.
No need to consider the second stage.
But then they say even if they are wrong in their analysis.
LEGAL TEST IS IN HOSKING: → And then obiter regarding how the test is going to be adopted in the future.
Intrusion into seclusion:
C v Holland
*Development of New Privacy Tort
*
*Facts & Issue
*
*Reasoning:
*
*Developments of Intrusion into Seclusion in the U.S. (Prosser)
*
*Privacy & Intrusion in NZ:
*
*Privacy Act; NZBORA; Crimes Act; Search & Surveillance Act; Residential Tenancies Act
*
*Hosking (CA)
*
*Defences do not stand
New Tort in New Zealand.
Case is in relation to Mr Holland who took two secret videos of C who was living in a house owned by him
Had hidden camera that took videos of her in shower
216H in Crimes Act → breach
She does proceedings on breach of privacy → no public disclosure of private facts
This is intrusion into seclusion → should be able to shower without someone looking at her.
Court:
All acts touch on privacy interest
Hosking Court → adopted public disclosure of private facts → DID NOT APPLY
And any defences do not stand
DOES NOT APPLY Hosking
1.Intentional and unauthorised intrusion
2. Tha the intrusion was highly offensive to reasonable person
3. That the matter intruded upon was private
4. The intrusion caused anguish and suffering
Evident that freedom from intrusion to seclusion is something we value → privacy is something that underline civil wrongs in NZ
ELEMENTS: UNREASONABLE INTRUSION INTO SECLUSION OF ANOTHER
Holland elements above → current elements in NZ
1. An intentional and unauthorised intrusion
2. Into seclusion(namely intimate personal activity, space, or affairs);
3. Infringing on a reasonable expectation of privacy; and
4. That is highly offensive to a reasonable person.
A legitimate public concern in the information might be a defence.
Intrusion into seclusion: Faesenkloet v Jenkin
*1 Privacy Tort – not 2?
*
*Common Elements:
*
1. The existence of facts or circumstances in respect of which there is a reasonable expectation of privacy; and
●
2. Publicity of, or an intentional or unauthorised intrusion into, those private facts or circumstances that wold be considered highly offensive to an objective reasonable person.
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*Development of Tort(s)…in progress…
Justice Asher
Wanted to merge the privacy torts → one for disclosure and one for intrusion
They have similar elements
Facts where there is reasonable expectation of privacy
And intrusion into those private facts that is highly offensive
FACTS:
Neighbour war
Camera on high place showing other neighbour
Did not show anything private
Anyone can see the bottom of driveway
Interesting because Justice Asher asks if we should discuss intrusion into seclusion
Misappropriation of Likeness
*Hosking v Runting
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*X v Attorney-General (HC)
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*Facts
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*Issue
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*Holding
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*Reasoning
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*What are you thoughts on this?
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ACC (ACCIDENT COMPENSATION SCHEME) TORTS50
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False Imprisonment (Torts)23
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Tortious Assault10
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Battery (Torts)26
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Sexual Battery (Torts)13
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Defamation (Torts)115
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IIED (Intentional Infliction (Of) Emotional Distress12
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Privacy24
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Remedies1
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Negligence (Summary Cards)93
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Negligence: Recovery of Economic Loss50
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Negligence: Omissions, Third Party Intervention, Public Body Liability128
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Negligence: Pure Mental Injury132
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Negligence: Duty of Care15
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Negligence: Breach of Duty68
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Negligence: Causation43
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Remoteness5
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Mental Injury30
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Negligent Misstatement (Economic Loss)3
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Relational Economic Loss4
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Defences to Negligence11
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Scope of Duty for Negligence (Before Breach)3
