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
