UNIVERSITY OF CANTERBURY

1. UNIVERSITY OF CANTERBURY Privacy Forum

2. The Tort of Privacy

4. Background • privacy is culture specific. • it may be age-specific. • some media see it as a middle-class luxury coveted by the over-sensitive.

5. Reasons for development of a tort • the growth of computers and technology, in particular, technology which allows 24 hour surveillance of total populations, not just by government but also by private corporations and individuals. • increasingly invasive behaviour of the media.

6. Influences on New Zealand law • United Kingdom law • European law

7. Murray v Express Newspapers

8. Von Hannover

9. Mosley v News Group Newspapers

10. New Zealand

11. Hosking v Runting

12. Hosking v Runting • Is there a tort of privacy in New Zealand? • If so, • What is private? • When is privacy invaded? • What part does freedom of expression play? • What remedy might be appropriate?

13. Hosking v Runting The Court held (3:2) that there was a tort which protected against publication of private information in New Zealand. The tort is made up of the following parts:

14. Hosking v Runting • The existence of facts in respect of which there is a reasonable expectation of privacy; • The publication of those facts must be highly offensive to an objective reasonable person; • There is a defence of public interest, which means the publication must be a matter of concern to the public, not just ‘of interest’. • The usual remedy will be damages, but injunction is also available, although prior restraint will be rare.

15. What are facts giving rise to an expectation of privacy? • Inherently private facts • Mosley • P v D • L v G • Difficult cases: • Brown v AG • TVNZ v Rogers

16. What about public facts? • Hosking • Andrews

17. Innocuous public activities? • Hosking • Murray

18. Plaintiff culpability? • Andrews • Mosley

19. Plaintiff culpability? • …it is not for the state or for the media to expose sexual conduct which does not involve any significant breach of the criminal law. That is so whether the motive for such intrusion is merely prurience or a moral crusade. It is not for journalists to undermine human rights, or for judges to refuse to enforce them, merely on grounds of taste or moral disapproval

20. Plaintiff culpability? • Conclusion: • Apparent culpability should never disentitle a plaintiff to a right of privacy – but it could validly bolster the public interest in the publication provided it is significant and relevant to that.

21. Highly offensive publication? • Court of Appeal in Rogers • Brown v AG • The subjective/objective test.

22. Remedies • Injunction • Hosking and Fahey • Brash v John and Jane Doe • Rogers

23. Remedies • Injunction • Prior restraint must be treated with caution, especially in relation to ex parte applications

24. Remedies • Damages • Hosking • Mosley • L v G • Flexibility is the key, and modesty the aim.

25. Public Interest • Hosking • Andrews • Mosley

26. Conclusion • Mosley • Privacy, public interest and responsible journalism

27. Conclusion • The future: • a form of rights-based jurisprudence which is a claim for loss of autonomy, dignity and integrity, based on either publication of true or untrue facts, (or intrusions such as secret filming), which may be defended on the basis of public interest.

28. Fin Ursula Cheer 2008