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Friday, August 05, 2011

New Zealand law acknowledges privacy right in publication of private information

And they live to tell the tale, believe it or not.

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.) 
The existence of the privacy tort was confirmed by the Court of Appeal in Hosking v Runting [2005] 1 NZLR 1 (CA). The essential elements as formulated in that case are (i) the existence of facts in respect of which there is a reasonable expectation of privacy; and (ii) publicity given to those private facts that would be considered highly offensive to an objective reasonable person. The judges also said there is “a defence enabling publication to be justified by a legitimate public concern in the information." (Sounds familiar- except the ALRC proposal would set the bar higher.).

The commission reported on whether the tort should be retained or legislated, :
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.

New Zealand law doesn't recognise a general tort of intrusion on privacy. The commission commented this was worth serious consideration but recommended development be left to the common law as well.

The commission also recommended a Surveillance Devices Act to create the criminal offences of trespassing to install a surveillance device; using a device to undertake surveillance of the interior of a dwelling; and using tracking devices, with appropriate defences to each; that it should be an offence to publish information obtained in breach of the Act, and that there should be mirror civil liability for breach of its provisions. Private investigators would be bound by the provisions of the new Act like everyone else. In addition, the commission recommend that the Harassment Act 1997 should be amended to extend its coverage to certain types of surveillance, and that a new offence of voyeurism should be created. 

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