In this article, Grant Slevin, a solicitor with Wynn Williams & Co, advises that the New Zealand Court of Appeal has recently indicated that it is now possible to sue publishers in tort for breaches of privacy.
In past years there have been sporadic instances in which orders have been made to prevent the publication of private information. In P v D  2 NZLR 591, (2000) 6 HRNZ 92, for example, a public figure gained permanent suppression of any reference to the fact they had been treated in a psychiatric institution. Damages have also been awarded in the District Court in one case, for the publication of intimate photographs without the subject’s consent.
In the recent case of Hosking v Runting (2004) 7 HRNZ 301 a "celebrity" couple attempted to prevent the publication of photographs of their children on the grounds that to do so would violate their right to privacy. Their claim failed in the High Court, which doubted the correctness of the earlier decisions.
On appeal it was decided unanimously that publication of the photographs in question, which were inoffensive and had been taken in public, albeit secretly, was not preventable. This finding was sufficient to dispose of the case, but the Court decided to give some direction to lower courts which might have to decide such claims in the future.
In giving their judgments Justices Gault, Blanchard and Tipping held that a common law remedy is now available. They argued that the law governing liability for harm caused to others must move to accommodate developments in technology and changes in the attitudes, practices and values of society. Justices Keith and Anderson strongly disagreed, arguing variously that such protection is not necessary, would impinge too severely on the right to freedom of expression and should be provided by legislation if it is to be provided at all.
Although recognised in international human rights conventions, a right to privacy was deliberately left out of the New Zealand Bill of Rights. Privacy is already protected by legislation in the Privacy Act 1993 and the Broadcasting Act 1989. If parliament was not prepared to go further, argued the dissenters, why should the judiciary? The judgments of the majority constitute the decision of the Court, however, and the result is that damages are now available in tort for the wrongful publication of private information.
While this much is clear, it is rather less obvious when it might successfully be claimed. Most torts are of ancient origin and have given rise to reasonably clear rules of liability through decided cases. Because this one is new, and because the concept of privacy is itself rather nebulous, the converse applies.
In Hosking two fundamental requirements for a successful claim are set out:
- The existence of facts in respect of which there is a reasonable expectation of privacy; and
- Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.
Justice Tipping, while endorsing these requirements, thought it would be enough that the publicity was ‘substantially’ offensive – a lower test than ‘highly’. He would also accord relevance to such matters as the way the information had been obtained, a factor not considered by his fellow judges.
Some guidance as to the sorts of facts one might reasonably expect to be regarded as private can be gained from decisions of the Broadcasting Standards Authority and from cases decided both here and overseas. They will include details of medical treatment and conditions, drug addiction and alcoholism, personal, family and sexual relationships and personal details of the body and its functions. Displays of grief, distress and self-harm are also likely to be regarded as ‘very personal and private’ matters.
Beyond this it is hard to speculate as to what might be caught, given people’s widely differing sensitivities as to what should be regarded as private. The media’s annual "Rich List" does not violate privacy: it is compiled from publicly available sources of information and the public has a legitimate interest in the business affairs of those who appear in it. A woman photographed in the street with her dress blown up by the wind should succeed, on the strength of US case law, but what of the Muslim woman whose veil is blown aside to reveal her face? Has she a reasonable expectation of privacy in respect of her appearance?
It is recognised that those already in the public eye have to accept a lower expectation of privacy than most, particularly when they have actively sought publicity for their own purposes. The Hoskings, for example, had given wide publicity to the conception and birth of their in-vitro twins at a time when this helped to maintain their high public profile and audience ratings. Similarly anyone in public office can expect closer public scrutiny than an ordinary member of the public.
The second element of note is the need for publicity. In defamation publication occurs when a single person receives the information, the extent of publication being relevant to damages but not to liability. The need for consistency with existing law should presumably see the new tort closely follow the rules applicable to defamation, but liability for ‘technical’ publication is doubted in Hosking. The Court is more likely to be concerned with widespread publicity, whether by print, internet or broadcast media. While the Broadcasting Act provides a low-cost remedy through its own complaints process it does not appear to protect broadcasters from this new liability.
Thirdly, the publicity involved will have to be ‘highly offensive’ to an ‘objective and reasonable’ person: it is not enough that the information is private; it must also be sensitive and highly personal in nature. It is the plaintiff, rather than the viewer or reader, who must be offended, but their right to succeed will depend on the court’s view of whether an objective and reasonable person in their situation would also have been highly offended.
Questions will inevitably arise over the extent to which the characteristics and sensitivities of the particular plaintiff should be attributed to this objective and reasonable person. Would it be fair and just to subject the Muslim woman referred to above to a test based a societal norm, or will offensiveness in her case be judged from the viewpoint of an objective and reasonable Muslim woman? Opinions may vary, but only time will tell.
A good defence to this potentially wide-ranging liability will be available where the information published is a matter of legitimate public concern. The courts recognise that freedom of expression is central to the health of society and its institutions, including the media, and will be reluctant to interfere in editorial decisions even where these cause harm to individuals. Some loss of privacy is an inevitable consequence of living in society and any positive requirement of public interest, as a prerequisite to publication, would simply put the media out of business.
Curiosity about the lives of celebrities is to be expected, but they too are entitled to guard their privacy. Having publicly denied that she used drugs, British model Naomi Campbell was not able to prevent publication of the facts she was actually an addict and receiving treatment. By putting this aspect of her life into the public domain she probably waived her right to privacy in respect of it. By making false statements she entitled the media to set the record straight. Had she refused to discuss it, the outcome would have been different.
Uncertainty is never welcome in the law and this new cause of action will be steeped in uncertainty for many years to come. Few aggrieved parties will pursue an award of damages because to do so will result in further publicity to their private affairs. In cases which are both severe in likely effect and clear in likely outcome it will be possible to restrain publication by injunction, at which point most publishers will lose interest and move on. Legal precedent will accordingly be very slow to evolve.
Hastily obtained injunctions are thus likely to be the most common expression of our new and indigenous tort.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.