Privacy Case Analysis Flashcards
What are the Privacy + Intrusion into Seclusion cases?
- Bradley v Wingnut Films Ltd
- Hosking v Runting
- Andrews v TVNZ
Privacy ^ - C v Holland
- Fasenkloet v Jenkin
- Henderson v Walker
Intrusion into seclusion ^
What is the privacy tort
The idea of restricting the access others have to some parts of ones life
Breach of privacy of something
What does the privacy tort seek to protect?
Individual dignity
Autonomy
The ability to restrict access to oneself
The ability to maintain a sphere of influence that others cannot access despite how public we may be
‘Planks’ of publication privacy?
- Was there publication
- Are the facts in the publication private
- Is this publication highly offensive to a reasonable person
- Is there any defence of public concern?
What is public concern and what is not public concern?
Public concern = breaking law, politics, overall things that are going to impact the public
Non-public concern = celebrity scandal, gossip.
Private facts are…
Facts that are known by just you or select people, not the whole public.
If they are doing something illegal…
There is no expectation of privacy
Elements of intrusion into seclusion?
- An intentional and unauthorised intrusion
- Into seclusion
- Involving infringement of a reasonable expectation of privacy
- That is highly offensive to the reasonable person
An intentional act is things like…
Videoing, peeping, phone hacking
Key points in Bradley v Wingnut Films Ltd
Tomstone is not private
Not offensive - barely in it and not associated with anything bad
Key ponts in Hosking v Runting
PUBLICATION:
OF PRIVATE FACTS:
If you are a public figure you have a reduced expectation of privacy - family of public figures also have a reduced expectation (not as much as the figure though)
There is little expectation of privacy in public - But there are exceptions of no additional publicity
THAT WAS OFFENSIVE:
This tort requires that the plaintiff can identify that the publicity was truley humiliating and distressful
DEFENCE:
There is a defence if there is legitimate public concern
Key points of Andrews v TVNZ
PUBLICATION:
Private facts are those that are not known to the world at large
Expanded on Hosking by saying there can be an expectation of no ADDITIONAL publication (even in public place) - they would’t have expected their conversations to be heard by earshot so reccording is a breach
No additional publicity
OF PRIVATE FACTS:
Private facts are those not known to the world at large - intimate convos/ moment
Need to be identifiable for there to be an expectation of privacy
If it appears to suggest intimate or private moments it will be a private fact
Plaintiff culpability - cautiously
OFFENSIVE:
Plaintiff needs to be able to point to something they find offensive that a reasonable person also would too.
Not painted in a bad light and blurred faces - not offensive
DEFENCES:
Key points of C v Holland
INTENTIONAL/UNAUTH INTRUSION:
Intrusion must be an affirmative act, not careless or unintentional - without any lawful jurisdiction
INTO SECLUSION:
Seclusion refers to personal activity/ space or affairs which impinge on personal autonomy.
WHERE THERE WAS AN EXPECTATION OF PRIVACY:
THAT WAS OFFENSIVE:
Intrusion tort elements of “expectation” and “offensiveness” can be taken from the Hosking tort
DEFENCES:
Key points of Fasenkloet v Jenkin?
INTENTIONAL/UNAUTH INTRUSION:
INTO SECLUSION:
Holland’s seclusion does not limit seclusion to a private area - it can also be in a public area - just somewhere where there is an expectation of privacy
WHERE THERE WAS AN EXPECTATION OF PRIVACY:
THAT WAS OFFENSIVE:
Confirms that the Intrusion tort shares the “expectation” and “offensiveness” elements and cases from this hosking tort can be applied
DEFENCES:
Driveway is not very private, unlike inside home, also no evidence of any private activites done in driveway - no expectation of privacy or offensiveness
Key points of Henderson v Walker
INTENTIONAL/UNAUTH INTRUSION:
Extended Hosking Tort - publication does not need to be widespread.
If something is not obviously private, but morally soceity feels it should be protected, then it is private.
Can intrude into private information - not just affairs
INTO SECLUSION:
Information relating to health, personal relationship and finances are easily private
WHERE THERE WAS AN EXPECTATION OF PRIVACY:
THAT WAS OFFENSIVE:
Bad blood plays into motive
DEFENCES:
Hard for there to be public concern when it is publicated to very few people
Introduction when asked about remedies and prospects of success for prosecuting…
I am advising…on…
The legal remedies which may be availible are…
To get these remedies…will have to show….
Possible defences…(public concern etc)
Effect of these defences….(no remedies etc)
Introduction when asking for prospects of success of defence…
I am advising…on…
It is likely that prosecution (….) will use….
If success the prosecution (…..) will get….remedies…..
To successfully defend prosecutions action….will have to….(establish one of the following….elements….)
First thing to do when doing a privacy question?
What variation of privacy tort it is
- Any kind of disclosure/ publication = Hosking tort (publication tort)
- No disclosure at all = Holland variant (intrusion)
Structure for Hosking/ publication privacy Q
- Intro: who advising, what they need to show, remedies availible
- Publication?
Was there publication of anything? - Were the facts private/ did they have a reasonable expectation of privacy?
Obvious?
Morally obvious?
Additional publicity?
Public figure?
Identifiable?
Plaintiff culpability - have they done something wrong? - Is the publication of these facts highly offensive?
Would a reasonable person be offended? - Is there a defence of public concern?
Size of publication? - Conclusion
What to say if it is not an inheritnley private peice of information?
If contemporay and model standards suggest it is something that which is meant to be protected, it is private
“The potential implications of losing control over private information in the digitcal age we are in is far greater than ever before”
Structure for Holland/ intrusion privacy Q?
- Intro: who advising, what they need to show, remedies availible
- Intentional and unauthorised intrusion
Is the act an intentional thing?
Is there any legal jurisdiction for it? - Into their seclusion
Is it a private location? Physically and in information - Which they held a reasonable expectation of privacy within
Did they have an expectation of privacy in this area? - Is highly offensive to the reasonable person
Would a normal person in their shoes be offended by this? - Conclusion
What cases/ ratio’s can you apply for the “private facts” issue?
Andrews - not known by world at large, appears to be private = private, identifiability
Henderson - information about medical, finanances etc is easily private
Hosking - public place = likely a lowered expectation, unless an expectation of no ADDITIONAL publicity, public figures = lower
Bradley - identifiability
What cases/ ratios can you apply for the “offensiveness” issue?
Andrews - tone, how they are painted
Henderson - does not need to be widespread, motives/ bad blood
Bradley - not the focus of the publication
Hosking - nothing objectable in the photos of the twins
What cases/ ratios can you apply for the “public concern” issue?
Andrews - purpose of TV show, to educate
Hosking - gossip is not
What cases/ ratios can you apply for the “intentional and unauthorised intrusion” issue?
Holland - intentional acts, not by accident.
What cases/ ratios can you apply for the “into seclusion” issue?
Holland - place where behaviour is clearly private
Henderson - in private information, not just location
What cases/ ratios can you apply for the “where there was a reasonable expectation of privacy” issue?
Holland - everyone expects not to be filmed in the shower
Jenkin - driveway fair distance from house, closer to road where public walk past + no evidence of private acitives being done on the driveway.
What cases/ ratios can you apply for the “Highly offensive” issue?
Holland - can use the other cases from hosking tort, clearly satisfied
Jenkin - reasonable person would not be offended by being recorded in their driveway - doing no private acts, could chose to not walk infront of camera, could not see inside the car well anyway
