Hosting v Runting 👶👶 Flashcards
Hosking v Runting 👶👶 [2004] Facts?
Plaintiff: Mike Hosking (public figure)
- Twin daughters were 18 months old and pictured with their mother in their prams
- Located in a very public location
Newspaper wanted to publish photos
Hosking didn’t want a photo of his kids circulating online (keeping them out of the limelight)
What did Gault and Blanchard JJ recognise and why?
Gault and Blanchard JJ recognised a need for a privacy tort in light of recent technological change
What is the privacy tort consistent with?
- Values which underpin domestic legislation
- International treaties to which NZ is a party including the International Covenant on Civil and Political Rights
- Developments in England and Wales and other common law jurisdictions
What was the first element of the tort?
1) The existence of facts in respect of which there is a reasonable expectation of privacy
What is ‘reasonableness’?
The word “reasonableness” imports an objective check on the subjective expectation of the individual.
“What expectations of privacy are ‘reasonable’ will be a reflection of contemporary societal values and the content of the law will in this respect be capable of accommodating changes in those values”
- Tipping J
What is a private fact?
There is NO simple test for what constitutes a “PRIVATE FACT”
- Private facts are those that may be known to some people but not the world at large
- It is not enough to establish that something is a private fact because it happened out of public view
eg facts about finances, health, personal relationships
Do public figures have no reasonable expectation of privacy?
No, a public figure does not automatically lose their right to privacy but their reasonable expectation of privacy will be reduced
Why was there no reasonable expectation of privacy in this case?
- The photographs did not show anything which could not have been seen by a member of the public in Newmarket that day.
- They don’t show where they live or anything else of that nature
- The existence of the twins, their ages and the fact that their parents are separated are a matter of public record (perhaps a questionable point)
What is element two of the hosting test?
2) Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.
(it is to do with the actual publicity being highly offensive NOT the facts themselves)
(this element is aimed at putting a benchmark on what can’t be published - nothing trivial BUT surely nothing trivial would be considered private anyway)
What is the defence to the privacy test?
The PUBLIC CONCERN
The information is so important with a ‘legitimate public concern’ then the information should be published
(closely related to the idea of freedom of expression)
The public genuinely have to be concerned about it –
- Not enough to show that the disclosure is ‘merely interesting’
NOT PUBLIC INTEREST
What did Tipping J think of the high offensive element?
He was NOT in favour
Whether the publicity is offensive should form part of the enquiry into whether the plaintiff had a reasonable expectation of privacy.
- If the test is retained, it should be “substantial offence”
How does Tikanga interact with the Hosking Test?
Quince identifies a number of matters which Maori might consider private/tapu which would not typically be considered private to Pākehā eg. whakapapa (genealogy)
‘Reasonable’ test is representative of society and its values BUT people understand privacy differently
So shouldn’t there be nuisance surrounding this reasonable test limb?????????
