Privacy

Question 1

Elements of Holland variant

Answer 1

1. Intentional and unauthorised intrusion
2. Into seclusion (namely personal space/activity/affairs)
3. Involving infringement of a reasonable expectation of privacy
4. Highly offensive to the reasonable objective person in the plaintiff’s position

Question 2

Elements of Hosking variant

Answer 2

1. Publication
2. of Private facts and that the
3. publication of these facts would be highly offensive to the reasonable person
   (and no defence of legitimate public concern)

Question 3

So the difference betweent the two variants is:

Answer 3

Holland = no publicity

Question 4

Bradley v Wingnut Films facts

Answer 4

Wingnut Films produced a horror movie, in which the real tombstone of the Bradley family was visible in the background. Bradley filed an injunction

Question 5

Key issue in Bradley

Answer 5

Is there a tort of privacy in NZ and would this case be a sufficient breach of privacy?

Question 6

Outcome in Bradley

Answer 6

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

Question 7

Key point in Bradley

Answer 7

Acknowledges that a tort of privacy may exist in NZ law, although a claim would not be successful in this case.

Question 8

Hosking v Runting facts

Answer 8

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.

Question 9

Hosking v Runting issue

Answer 9

What is required to satisfy the tort of privacy, and would the photos of Hosking’s daughters satisfy these elements?

Question 10

Hosking Outcome

Answer 10

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.

Question 11

Key point in Hosking

Answer 11

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

Question 12

Andrews v TVNZ facts

Answer 12

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.

Question 13

Andrews, issue

Answer 13

Do these facts satisfy the tort of privacy (as per the Hosking test)?

Question 14

Andrews, outcome

Answer 14

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.

Question 15

key point in Andrews

Answer 15

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

Question 16

Henderson v Walker facts

Answer 16

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

Question 17

issue in Henderson

Answer 17

Can you bring a claim in invasion of privacy if there is not widespread publication of private facts and only limited disclosure?

Question 18

outcome in Henderson

Answer 18

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.

Question 19

key point in Henderson

Answer 19

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

Question 20

C v Holland facts

Answer 20

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.

Question 21

Issue in C v Holland

Answer 21

Does the tort of privacy extend to breaches of an intimate setting, where the information is not published?

Question 22

Outcome in C v Holland

Answer 22

The court held that Holland was liable for intrusion into C’s seclusion. Clear cut once the elements were established.

Question 23

Key point in C v Holland

Answer 23

An action for intrusion into seclusion becomes part of NZ law (elements)

Question 24

Faesenkloet v Jenkins facts

Answer 24

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

Question 25

Issue in F v J

Answer 25

Can you bring a claim for intrusion into seclusion in a public place?

Question 26

Outcome in F v J

Answer 26

No reasonable expectation of privacy and the filming was not objectional to the reasonable objective person.

Question 27

Key point in F v J

Answer 27

Developed intrusion into seclusion.
Held that a public place does not preclude a claim for intrusion into seclusion however this case not successful

Question 28

future of the tort/criticisms

Answer 28

• is highly offensive test necessary
• does it encroach on freedom of the press

Question 29

Jones v Tsige

Answer 29

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.

Question 30

What was the exception to the identifiability rule in L v G?

Answer 30

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

Question 31

Who and what was the minority decision in Hosking

Answer 31

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.