Privacy Flashcards
Elements of Holland variant
- Intentional and unauthorised intrusion
- Into seclusion (namely personal space/activity/affairs)
- Involving infringement of a reasonable expectation of privacy
- Highly offensive to the reasonable objective person in the plaintiff’s position
Elements of Hosking variant
- Publication
- of Private facts and that the
- publication of these facts would be highly offensive to the reasonable person
(and no defence of legitimate public concern)
So the difference betweent the two variants is:
Holland = no publicity
Bradley v Wingnut Films facts
Wingnut Films produced a horror movie, in which the real tombstone of the Bradley family was visible in the background. Bradley filed an injunction
Key issue in Bradley
Is there a tort of privacy in NZ and would this case be a sufficient breach of privacy?
Outcome in Bradley
Judge finds that a tort of privacy may exist in NZ. Must prove:
- There was public disclosure
- of private facts
- highly offensive and objectional to a reasonable person of ordinary sensibilities
Key point in Bradley
Acknowledges that a tort of privacy may exist in NZ law, although a claim would not be successful in this case.
Hosking v Runting facts
Mike Hosking is fairly open about his family, but his twin baby daughters were photographed on a busy Auckland St without permission, so he filed an injunction on their behalf to prevent publication.
Hosking v Runting issue
What is required to satisfy the tort of privacy, and would the photos of Hosking’s daughters satisfy these elements?
Hosking Outcome
Fails unanimously but with some difference.The photos would not publicise any fact in respect of which there could be a reasonable expectation of privacy- could have been observed by any member of the public in Newmarket that day. They do not show anything that is not already a matter of public record or that could be used to harm them. Would also fail on 2nd point as nothing truly objectional.
No need to consider public concern.
Key point in Hosking
Establishes Hosking tort. This case also establishes that public figures have a reduced expectation of privacy, especially if in public eye voluntarily, children of public figures also have reduced expectation of privacy.
Public concern isn’t just what people find interesting
Andrews v TVNZ facts
The Andrews couple were driving home after a party (not established if DUI), got into crash and had to be rescued. The firefighters were being followed by a film crew who filmed for about an hour therefore recording much of the Andrews’s conversation. Episode aired, faces blurred but they had been unaware until it was pointed out.
Andrews, issue
Do these facts satisfy the tort of privacy (as per the Hosking test)?
Andrews, outcome
Fails.
Although they had been filmed in a public place, they still had a reasonable expectation of privacy to the additional publicity created by the show. However, nothing highly offensive in the content (it was just them being sweet to each other, although the length of time that they were filmed for was relevant).
The court did not need to consider whether there was legitimate public concern, although the judge stated in obiter that there could’ve been.
key point in Andrews
Further develops the Hosking tort.
- Generally, when in a public place no expectation of privacy however there are exceptions to this
- The identifiability and culpability of the plaintiff may be relevant
Henderson v Walker facts
Henderson had gone into liquidation & Walker (the liquidator) got carried away with his role and formed a personal dislike to Henderson. He was concerned that Henderson would delete information so gained possession of one of H’s company laptops that contained personal information. He shared what he found on there to a small group of colleagues
issue in Henderson
Can you bring a claim in invasion of privacy if there is not widespread publication of private facts and only limited disclosure?
outcome in Henderson
Court only found one part of the disclosure highly offensive- the personal and potentially embarrassing nature of the emails between H and his wife. Nothing in the other disclosures could be considered offensive to the reasonable, objective person.
key point in Henderson
Publicity does not have to be widespread. Providing information to one or more third parties without authorisation can still be a breach, however, whether or not the publicity was widespread is relevant in determining damages and offensiveness
C v Holland facts
Holland set up a camera in the shower of their flat and filmed C naked. C was unaware. Holland stores the files on his computer which his flatmate borrows (C’s boyfriend) and finds the videos. H never made any attempt or had any intention to publicly share the videos. C sought compensation.
Issue in C v Holland
Does the tort of privacy extend to breaches of an intimate setting, where the information is not published?
Outcome in C v Holland
The court held that Holland was liable for intrusion into C’s seclusion. Clear cut once the elements were established.
Key point in C v Holland
An action for intrusion into seclusion becomes part of NZ law (elements)
Faesenkloet v Jenkins facts
J & F were neighbours and had had a rivalry for some time. J had placed a personal CCTV camera (not secret) which filmed a public road, part of the shared driveway was also visible. F sought an injunction
Issue in F v J
Can you bring a claim for intrusion into seclusion in a public place?
Outcome in F v J
No reasonable expectation of privacy and the filming was not objectional to the reasonable objective person.
Key point in F v J
Developed intrusion into seclusion.
Held that a public place does not preclude a claim for intrusion into seclusion however this case not successful
future of the tort/criticisms
- is highly offensive test necessary
- does it encroach on freedom of the press
Jones v Tsige
Jones was dating Tsige’s ex-husband, so she looked through her personal financial information for her own personal use. Ratio was that seclusion can = looking through someone’s personal information/records.
What was the exception to the identifiability rule in L v G?
The plaintiff was a sex worker, and someone took photos of her genitals. “Breached her personal shield of privacy” , didn’t matter that she could not have been identified from the photo
Who and what was the minority decision in Hosking
Keith J- courts should be cautious in developing law in this area, Parliament has also taken a tentative approach to it. There are already existing remedies- constitutional role.
