A new frontier for privacy law?

19 Sep 2012

In Hosking v Runting ([2005] 1 NZLR 1 (CA)), the Court of Appeal (by majority) recognised the existence of a tort of wrongful publication of private facts in New Zealand, with two fundamental requirements for a successful claim ([2005] 1 NZLR 1 (CA) at [117]):

  1. The existence of facts in respect of which there is a reasonable expectation of privacy; and
  2. Publicity given to those facts that would be considered highly offensive to an objective reasonable person.

The majority expressly left the door ajar for the incremental development of further causes of action protecting privacy. In its review of privacy law, the Law Commission also recommended that the tort of invasion of privacy be left to the Court to develop (NZLC R113, 2010, at 93).

In C v Holland [2012] NZHC 2155, Whata J took the invite, finding a tort of intrusion upon seclusion (also of North American ancestry) to be part of New Zealand law. Unlike the Hosking tort and many other existing privacy protections, the Holland tort relates to spatial, rather than informational privacy. It is not about the information obtained through prying, or how it is used, but the prying itself. Importantly, publication is not a necessary ingredient.

C v Holland – the facts

C lived in a house owned by her boyfriend and Mr Holland. Mr Holland installed a video camera in the roof cavity above the bathroom and recorded C while she was showering. He subsequently downloaded the footage onto his computer where it was later discovered by C’s boyfriend. There was no evidence that Mr Holland published or showed the video clips to anyone else (so the Hosking tort did not apply).

Mr Holland was convicted under section 216H of the Crimes Act 1961 for making an intimate visual recording. C sued for invasion of privacy.

A new tort is born

The central issue for Whata J was whether invasion of privacy of this type was an actionable tort. In a well articulated judgment, His Honour canvasses the relevant jurisprudence and, having found “a broad consensus that the concept of privacy, linked to personal autonomy, is a value worth protecting” proceeds to address three key objections (at [65]):

 

  1. Privacy per se is not justiciable;
  2. It is for Parliament, not the Judiciary, to resolve the weight to be accorded to privacy as a value within a complex matrix of competing values, interests and rights; and
  3. A privacy tort is not necessary.

As to justiciability, His Honour concluded that it was “too late to cogently argue that judges in New Zealand are unable to adjudicate on the content and boundaries of a privacy right to be free from intrusion upon seclusion” (at [74]). Among other things, Whata J viewed the tort as a logical adjunct to the Hosking tort – both attacking the same underlying wrong; the tort was amenable to familiar justified limitations, such as a defence of legitimate public concern; freedom of expression is only at issue where publication is contemplated in which case Hosking would apply (note this may not quite be accurate given the right to freedom of expression includes the right to seek information); and “a feature of the common law is its capacity to adapt to vindicate rights in light of a changing social context” (at [75]).

Referencing the recommendation of the Law Commission to leave the tort to the courts, Whata J also considered it “functionally appropriate” for the common law to establish an intrusion tort. Again, His Honour viewed the new tort as a logical extension or adjunct to the Hosking tort. The Court was well placed to deal with advances in technology through traditional common law method.

Finally, His Honour held there was a “demonstrable need for a civil remedy...that better accords with the significance of privacy values, the scale and offensiveness of the intrusion in this case, and the harm caused” (at [90]). While acknowledging Keith J’s arguments in Hosking for dealing with wrongful publication under existing remedies (such as breach of confidence), those arguments had less force where publication was not involved.

Elements of the tort of intrusion

Recognising the need for caution, Whata J sticks pretty close to the North American playbook in defining the elements of the tort. Surveillance or intrusion on its own is not sufficient. In summary, in order to establish a claim based on the tort of intrusion upon seclusion a plaintiff must show:

 

  • An intentional and unauthorised intrusion – hence, a person inadvertently walking in on a flatmate (as suggested by counsel for Mr Holland) will not suffice; 
  • Into seclusion (namely intimate personal activity, space or affairs);
  • Involving infringement of a reasonable expectation of privacy; and
  • That is highly offensive to a reasonable person.

The last two elements replicate the tests in Hosking and His Honour also indicated that a legitimate public concern in the information may provide a defence.

Implications

C v Holland is the first case in New Zealand that has recognised the tort of intrusion upon seclusion. It is the most direct acknowledgement of the long touted right “to be let alone”. But will it have much of an impact?

Common examples of intrusions include filming people with hidden cameras (as in the instant case or on television shows like Target), recording their conversations (as in a certain Epsom tea party), searching their private property and generally sticking your nose where it doesn’t belong.

In the majority of cases, there will be a subsequent publication of information so that the Hosking tort will apply. The Law Commission therefore observes that the number of pure intrusion cases is likely to be small (NZLC IP 14, p 273). The highly offensive test also sets a decent barrier for the overly sensitive litigant.

Importantly though, the tort applies to private parties and the State alike – unlike section 21 of the New Zealand Bill of Rights Act 1990, which only protects against unreasonable search and seizure by public sector agencies.

One concern that has been expressed is that the tort will have a chilling effect on investigations by media and others to uncover wrongdoing. Depending on how it is constructed, the defence of legitimate public concern may go some way toward alleviating this fear. For example, Nicola Moreham has suggested a defence should be available:

“...to any defendant who can show that he or she believed, on reasonable grounds, that the intrusion would reveal information of significant public interest and that there was no other means of obtaining the information realistically available.”

(N A Moreham, “Privacy in the Common Law: A Doctrinal and Theoretical Analysis” (2005) 121 LQR 628, 655).

Legitimate law enforcement activities would clearly be covered, but those that step outside the confines of the newly enacted Search and Surveillance Act 2012 might face an additional source of liability. And defence or no defence, the new tort should almost certainly give those without a uniform reason to think twice.

Uncertainties

Although concerns have also been expressed about the boundaries of the new tort, there is a substantial body of overseas case law to draw upon and in New Zealand the Broadcasting Standards Authority (“BSA”) has been applying a very similar intrusion principle for more than 15 years (Privacy Principle 3).

But as with the Hosking tort, it remains a live issue whether a person can have a reasonable expectation of privacy in a public place. The use of the word “seclusion” should not be viewed as determinative. The formulation adopted by Whata J is notable for defining seclusion as “intimate personal activity, space or affairs”. This would seem to accord with those commentators who argue that location is just one factor to be taken into account.

By way of comparison, the relevant BSA principle provides that a person’s interest in solitude and seclusion does not ordinarily prohibit the recording of a person in a public place – but this exception does not apply if the person is “particularly vulnerable”.

However, His Honour’s acceptance that there is “no right to limit views from public places or from other private property” (at [92] citing Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; and Lorigan v R [2012] NZCA 264) would, at face value, appear to exclude visual surveillance from or within such places as actionable intrusions. This is perhaps surprising given the ability of telephoto lenses and enhanced visual devices to pry into even the most intimate and well guarded events.

And just what is intimate personal activity, space or affairs? His Honour stated that “[t]he reference to intimate personal activity acknowledges the need to establish intrusion into matters that most directly impinge on personal autonomy” (at [95]). Showering is a pretty extreme and easy case, but what of more mundane intrusions into family life, for example?

Another uncertainty is the extent to which the right to freedom of expression will impact on the new tort (and the defence of legitimate public concern in particular). As stated by the Law Commission, the right to freedom of expression includes the right to “seek” information, as well as to receive and impart it. To what extent does this freedom justify intrusion upon seclusion?

These are questions of fact and degree that will have to be determined if and when they arise – something for which the courts are well attuned.

Conclusion

The judgment in C v Holland provides a useful and complementary adjunct to the Hosking tort. While cases involving intrusion without publication are likely to be rare, Whata J is to be applauded for tackling the issue directly.

And while it may well be an incremental development, the recognition of intrusion upon solitude as a wrong in itself is a quantum leap forward.

 

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