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Bulletins Story:
THE NEW ZEALAND COURT OF APPEAL FORMULATES A LAW OF PRIVACY:
MICHAEL HOSKING v PACIFIC MAGAZINES
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Date:
30.03.2004
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By a majority of three to two, the New Zealand Court of Appeal
has approved the development of a law of privacy in a jurisdiction
which is closer than any other to that of the UK. Since the
judgment was only handed down on 25 March, it is too early to say
whether the approach adopted by the Court of Appeal in New Zealand
will be followed in this country. However, if an appeal is made it
will be to the Privy Council, who are members of the House of
Lords.
On the facts, the New Zealand Court of Appeal had no difficulty
in finding that there was no breach of privacy. The claimant was a
New Zealand television personality whose two baby children were
photographed in the street. All five judges rejected the claimant's
appeal, but three went on to indicate the direction which they
considered that the New Zealand law should take.
Two of the judges observed that a "privacy" jurisdiction had
been developed via the well established action of breach of
confidence. They observed that there are now two distinct versions
of this tort. One is the traditional situation in which information
has been disclosed in circumstances giving rise to a duty of
confidence. "The second gives a right of action in respect of the
publication of personal information of which the subject has a
reasonable expectation of privacy irrespective of any burden of
confidence, but only where that publication is or is likely to be
highly offensive to a reasonable person."
They went on to observe that the two fundamental requirements
for a successful privacy claim in New Zealand are:
- "The existence of facts in respect of which there is a
reasonable expectation of privacy; and
- Publicity given to those private facts that would be considered
highly offensive to an objective
reasonable person."
The third judge who found in favour of the law of privacy
summarised it as follows:
"It is actionable as a tort to publish information or material
in respect of which the plaintiff has a reasonable expectation of
privacy, unless that information or material constitutes a matter
of legitimate public concern justifying publication in the public
interest. Whether the plaintiff has a reasonable expectation
of privacy depends largely on whether the publication of the
information or material about the plaintiff's private life within a
particular circumstance would cause substantial offence to a
reasonable person. Whether there is sufficient public concern
about the information or material to justify the publication will
depend on whether in the circumstances those to whom the
publication is made can reasonably be said to have a right to be
informed about it."
The last sentence is very redolent of the Reynolds defence
already familiar to the UK jurisdiction. The extension of the
Reynolds principles bringing in a public interest element
is logical, although unlike one's reputation, privacy once lost
cannot be restored.
We await the outcome of the appeal to the House of Lords in
Naomi Campbell's action against The Mirror. In a
sister jurisdiction at least, the validity of a privacy law along
with appropriate safeguards to protect the right of freedom of
speech have been recognised and formulations attempted.
Jonathan Coad
201
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