The issue of a right to sue for beach of privacy wasn't mentioned in the Stage 4 report of the New Zealand Law Commission released this week. The subject was addressed in the Stage 3 report last year (Chapter 7). To summarise, New Zealand law recognises a tort for invasion of privacy, it applies to unjustified publication of private information, and rarely arises in court ( four times in recent years). NZ law doesn't so far recognise a cause of action for a more broadly defined invasion of privacy. The commission decided that because of their interconnected nature, the two should be left to development or further development, through the common law. (The Australian Law Reform Commission has recommended legislation to cover both. The government proposes three years later to encourage talk about it, sometime soon.)
7.6 Given the strength of the dissents in the Court of Appeal and Anderson J’s doubts in the Supreme Court we felt we needed to ask whether New Zealand should have such a tort at all. The great majority of submitters supported its retention. We agree with that view....7.8 In the issues paper we noted the many gaps and uncertainties in the existing tort, and asked whether it should be enacted in statutory form. A statute would render the law more accessible than the common law (an advantage in itself), fill some of the gaps in the current law, and render some of the criteria more certain than they currently are. The common law is dependent on the accidents of litigation and develops slowly. Statute law can present a complete and coherent whole straight away.
7.9 However, after careful deliberation we have decided that the tort should be left to develop at common law. The common law has the great advantage that in a fast-moving area judges can make informed decisions on actual cases as they arise. Privacy is particularly fact-specific. As has been said in the United Kingdom, each case requires an intense focus on the individual circumstances. The common law is well-suited to that task. The common law is also flexible, and can thus develop with the times. Statute creates a risk that what is enacted today may be out of date tomorrow. To avoid this dilemma, any privacy statute would have to be drafted in open-ended terms, and might end up being little advance on the common law.
7.10 Nor is there any evidence that the current state of the law is causing practical difficulties to anyone. We had wondered whether the media might want greater certainty than the law currently gives them. But our consultations with representatives of the media reassured us that they are comfortable with the broad and general direction the common law currently provides.