New Zealand Privacy Law - Post Hosking Flashcards
Andrews v TVNZ [2009] 🍷🤕👨🚒
Mr and Mrs Andrews had a car accident while they were drink driving (both were drunk – neither of them were convicted as they couldn’t prove who was driving)
- Their rescue was filmed for the tv show ‘Firefighters’
- Andrews were humiliated, having not known they were part of the filming and going to be part of a TV show
In Andrews 🍷🤕👨🚒 how was the ‘reasonable expectation of privacy test’ applied?
- No expectation of privacy because the fact of the accident and circumstances surrounding it
- Plaintiffs therefore could not object to filming or taking of still photographs
- Plaintiffs could not object to their conversation being overheard by those present at the scene
BUT the conversations between them were different
- This is because of their ‘intimate’ and ‘personal’ nature and the extent of the publicity they were given
- They were entitled to expect that they would not be subject to additional publicity
(Limb met)
In Andrews 🍷🤕👨🚒 how was the ‘highly offensive’ test applied?
- Strongly emphasises the tone of the publicity. It did not cast the plaintiffs in a ‘bad light’ – as it doesn’t show them drinking, or saying anything awful
- ‘Chagrin and annoyance’ at not knowing they were being told they were being filmed or would be broadcast - is not enough to establish that the publicity is highly offensive
- Failure to get consent – or even to inform the subjects of the broadcast – is not enough to establish high offensiveness
Plaintiff’s claim therefore fell at the second limb (wasn’t able to meet both limbs)
Andrews 🍷🤕👨🚒 - Public Concern defence
- Reinforced the points from Hosking about the need for legitimate public concern and proportionality
- The test required a ‘substantial connection’ between the matter disclosed and the legitimate public concern
- Here, even though part of the aim of the programme was just entertainment, the public importance of road safety and public understanding of emergency services would have justified the disclosure of this couple’s conversations.
TVNZ v Rogers (comment on highly offensive element)
Chief Justice in reference to the approach in Hosking, that ‘we need to be cautious’
- Reserves her position on whether the ‘highly offensive’ requirement should be part of the action
Hyndman v Walker 📩 😱 (NZCA, 2021)
Facts:
- The plaintiff (Hyndman) sent a personal e-mails to a third party
- The defendant (Walker) was liquidating the third party’s companies
- The defendant/liquidator (Walker) passed the third party’s correspondence, including Hyndman’s emails, to external parties including the inland Revenue
- The plaintiff sued the liquidator for doing this
What did the lower court say in Hyndman v Walker 📩 😱?
- Disclosures to a few people can be actionable (moving away from Hosking)
The court said that the publication wasn’t highly offensive (failed on the second limb)
- As the information was trivial
This case suggests that the highly offensive element isn’t needed and should be done away with (but this wasn’t the case to do this)
Why does Nicole disagree with the second limb of the privacy tort?
- Uses too narrow an idea of the harm caused
- The requirement makes the tort unpredictable and erratic (it is unknown what will be considered ‘highly offensive’)
- Once properly understood, the reasonable expectation of privacy test excludes non-serious/trivial claims
Peters v A-G 🧾 🚨 [2021] facts?
- Winston Peters: Leader of the NZ first party (but Not in parliament)
- Had been a prominent MP for many years
- Peters was paid too much superannuation because he failed to disclose that he had a partner
- When the overpayment was discovered, officials in the Ministry of Social Development (MSD) reported the matter to the Minister of Social Development
- Peters repaid the amount in full as soon as the error was discovered.
- The details of the overpayment were published in the media and Peters sued the MSD and individuals therein on the basis that they must have been the source of the leak.
What did the court of appeal say in Peters v A-G 🧾 🚨 [2021]?
Goodard J said that:
1) The test is normative ie. The test is about what privacy a person SHOULD have in the situation in question
2) The test is contextual
Was there a reasonable expectation of privacy in Peters v A-G 🧾 🚨?
- He had a reasonable expectation that there would not be a disclosure of information about his finance to the public
- BUT there was no such expectation in respect of disclosures within the Ministry of Social development
( ‘to whom’ the disclosure is made makes a difference)
What did Peters v A-G 🧾 🚨 say about the ‘widespread publicity’ requirement?
[In this case the disclosure was limited between MSD employees]
It is difficult to see a principled basis for needing widespread publicity
- As small disclosures can be just as harmful (as limited disclosures can still have a significant impact on the dignity and autonomy of the individual)
What change does the Court suggest might need to be made to the public concern defence if communication to a smaller group of people can be a breach of privacy? Peters v A-G 🧾 🚨
- It would need to focus on their legitimate interest in receiving the information
- The defence of qualified privilege in defamation does potentially provide guidance in this development
If the defence was to be applied in this case – it would have applied here, because the people in MSG had a legitimate interest in receiving the information
What did Peters v A-G 🧾 🚨 say about the highly offensive test
- Strong arguments to abandon the highly offensive element but this isn’t the case to do it as nothing in this case turns on it
