Bathroom-camera decision reveals importance placed on privacy

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[Winter 2013]

In 2012 a woman sued her boyfriend’s flatmate for hiding a video camera in the bathroom the two men shared, recording images of her while she showered.

The couple became suspicious when they borrowed the flatmate’s laptop to watch a movie and found a file labeled with her name. They snuck into his room while he was out and searched his hard drive, and what they found led to a criminal conviction and the private law proceedings which are the subject of this article. The defendant was held liable for intrusion of privacy, in a decision known as C v Holland [2012] NZHC 2155.

To the layperson the chief question might be why the flatmate was stupid enough to label the file with the name of the girlfriend, and why he subsequently loaned his laptop to her. But for New Zealand lawyers, Holland is an important extension of the existing judge-made privacy cause of action. It signals how importantly judges are treating privacy, even though it does not appear in New Zealand’s Bill of Rights Act.

In the face of Google Earth, the internet and invasive new technologies, law-makers are belatedly realizing how rare privacy is fast becoming, and are struggling to craft laws to protect what is left.

Judge-made law

The privacy cause of action is entirely judge-made. It is also an American import. American judges and academics have been talking about it for the past hundred years, but it took until 2004 for the New Zealand Court of Appeal to decide that there was a free standing cause of action which lawyers now call the tort of privacy, in the case Hosking v Runting. This was not entirely new: there were High Court cases going back to the 1980s, but this was the first case at an appellate level, and the first to adopt definitively the American approach, in contrast to the English breach of confidence model discussed below.

Hosking v Runting concerned New Zealand broadcaster Mike Hosking, who had had twins and then separated from the mother the following year. New Idea wanted in on the action, and commissioned Mr Runting to get a photo of the twins. This was intended to accompany an article on Mr Hosking and how he would cope being home alone for Christmas. Mr Runting obtained a photo of the twins in a pushchair in a public street.

To the relief of all New Idea readers the Court of Appeal held that the photos did not breach anyone’s right to privacy; New Zealanders’ rights to know the details of the lives of its minor celebrities remain untrammeled. More importantly, from the lawyer’s perspective the Court affirmed the tort of privacy, holding that defendants would be liable if they: (1) published publicly, (2) private facts, (3) the publication of which would be ‘highly offensive’, unless (4) there was legitimate public interest in having the information disclosed.

The ‘offensive’ criterion remains controversial and is discussed below. Even without it, however, the new cause of action is obviously limited: it only applies to information which is published. Merely recording private information, like the flatmate in the Holland case, would not trigger liability.

England: breach of confidence and ‘offensive’

English judges were too timid to make up an entire new cause of action like their New Zealand colleagues, and instead opted to broaden the breach of confidence action, traditionally used to prevent people disclosing information conveyed in confidence.

Michael Douglas and his glamorous bride Catherine Zeta-Jones used this action to obtain damages when Hello! magazine obtained secret footage of their wedding (they had already given OK! magazine exclusive rights to the wedding photos).

Naomi Campbell failed to convince the House of Lords to prevent the Mirror from publishing photos of her leaving Narcotics Anonymous, because it was in the public interest to know that she had a drug problem when she had previously denied it.

However, Max Mosley, son of English fascist Oswald Mosley and President of the FIA Foundation, used the breach of confidence action to prevent News of the World publishing a story which falsely alleged that he had indulged in Nazi-themed S & M sessions (although he admitted to an interest in sadomasochism this was not Nazi-themed).

In Hosking, the New Zealand court was concerned that using the breach of confidence action would narrow the range of privacy interests which could be protected. It could well take more than separating privacy out from breach of confidence to protect it from the English press, but a recent case suggests that the English approach may in fact be more generous than the New Zealand law.

Mr and Mrs Murray are better known as JK Rowling and her husband. In 2008 the English Court of Appeal held that the Sunday Express had breached the Murray family’s privacy by taking a photo of their son David. The facts were similar to Hosking; the family was walking along a public street. The Court distanced itself from the ‘offensive’ criterion which has limited the New Zealand action, holding that:

the parents’ wish, on behalf of their children, to protect the freedom of their children to live normal lives without the constant fear of media intrusion is … entirely reasonable and, other things being equal, should be protected by the law. It is true … that the photographs showed no more than could be seen by anyone in the street but, once published, they would be disseminated to a potential large number of people on the basis that they were children of well known parents, leading to the possibility of further intrusion in the future … [they] were taken deliberately, in secret and with a view to their subsequent publication. They were taken for the purpose of publication for profit, no doubt in the knowledge that the parents would have objected to them.

Although New Zealand High Court judges are bound by Hosking, New Zealand media are well advised to be careful when publishing pictures of the children of celebrities, as it is not impossible that a higher court would choose to follow England’s lead.

Intrusion of privacy

Where does all this leave the plaintiff in Holland, showering in her boyfriend’s flat? Although the Hosking decision may appear to require publication as a criterion of liability, Judge Whata held that in some cases intrusion of privacy was sufficient, even without publication. He set out the elements of the ‘tort of intrusion upon seclusion’ as follows:

  • an intentional and unauthorized intrusion;
  • into seclusion (namely intimate personal activity, space or affairs);
  • involving infringement of a reasonable expectation of privacy; and
  • that is highly offensive to a reasonable person.

Judge Whata rejected the argument that it is inappropriate for judges to make up new causes of action, holding that the development of the privacy tort was ‘concordant with the historic function of this Court’. He also disagreed with the submission that the ‘highly offensive’ criterion is unnecessary, stating that it is a useful way of limiting the breadth of the privacy tort.

The super-injunction

If breach of privacy is established, judges have two remedies available: damages and an injunction. The latter is an order preventing publication.

More recently, English judges have created a third: the super-injunction. This remedy prevents publication of the fact that the plaintiff has sought an injunction. This is quite useful when the order is temporary, for example, to prevent publication until the defendant has been served with the proceedings.

Footballer John Terry applied for a super-injunction in relation to allegations that he had had an extra-marital affair (which turned out to be false). He wanted it to last until the end of the trial. This was refused, partly because of a fear that if Mr Terry never served proceedings on the defendant then there would be no trial and the injunction would become permanent.

There was an inquiry into super-injunctions in 2011, but the problem may have been resolved by the large number of online leaks, which have made super-injunctions rather pointless.