Privacy tort

PROD: the 4 parts of a privacy answer

P = Publicity (or intrusion); R = REOP; O = highly Offensive; D = Defence (LPC)

Hosking test: what must P establish?

(1) publicity; (2) REOP in what was published; (3) publicity highly offensive to an objective reasonable person in P's shoes. Defence: LPC

C v Holland intrusion test: 4 elements

(1) intentional and unauthorised intrusion; (2) into seclusion (intimate personal activity, space or affairs); (3) infringing a REOP; (4) highly offensive to a reasonable person

Faesenkloet v Jenkin [38]: the two forms are really one tort. Common elements?

(1) facts or circumstances with a REOP; (2) publicity of, OR intentional and unauthorised intrusion into, those facts that is highly offensive to an objective reasonable person

Obtained intrusively AND then published: which form?

Publication (Hosking). The intrusive method (long lens, hidden camera) goes to REOP. Don't plead intrusion separately

Does publicity need to be widespread?

No: Henderson v Walker. Disclosure to third parties without authorisation is enough, but a smaller audience makes 'highly offensive' harder

Publication clearly met (TV, magazine, online)?

One line: cite Hosking and move on

Intrusion must be 'an affirmative act, not…'

'…an unwitting or simply careless intrusion' (C v Holland)

SLAM FRAN: the REOP factors

Signals, Location, Access v accessibility, Method of capture, Fame, Reciprocity, Additional publicity, Nature of the material

Definition of private facts

'Known to some but not the world at large'; 'no bright line' (Hosking, Andrews)

Three categories readily identified as private (Henderson, citing the HCA in Lenah Game Meats)

Health, personal relationships, finances

REOP test is 'normative': meaning?

Asks whether society OUGHT to protect privacy here, not what people have got used to (Henderson, citing Winkelmann J and Moreham)

Can you have a REOP in a public place?

Generally unlikely (Hosking [164]), but yes in exceptional cases where the content is sensitive or intimate: Andrews, Campbell, Peck. Legal label of 'public' isn't decisive (Faesenkloet)

'No additional publicity'

Andrews: the couple could be overheard by those nearby, but could expect their conversation not to be heard beyond those in earshot

Access vs accessibility (Moreham)

The world may have access to a place (a beach), but you are only accessible to those present. Publication exposes you to everyone

Reciprocity (Moreham)

A shared understanding of privacy (e.g. a therapy group) means the content should stay private

Effect of fame on REOP

Reduced, flows to family (Hosking), but reduced is not none (Tipping J; Campbell)

Signals

Steps P took to avoid being seen: disguise, false name, secluded spot, barriers. They support a REOP

Location spectrum (most to least private)

Search of the person, then home or bathroom (Holland), then backyard or patio, then driveway (Faesenkloet, R v Fraser), then public street (Hosking)

Highly offensive: what must be offensive?

The PUBLICITY, not the facts: 'truly humiliating and distressful or otherwise harmful' (Hosking, Henderson)

Highly offensive: whose perspective?

A reasonable person of ordinary sensibilities in P's shoes, not a bystander (Henderson; Campbell per Lord Hope)

'One's spouse had a cold'

Hosking: trivial disclosures aren't actionable. Living in communities means giving up complete privacy

Henderson: 3 factors for highly offensive

Nature of the information; circumstances and extent of publication; relationship between the parties

Link between REOP and offensiveness

The stronger the REOP, the more likely it is offensive (Faesenkloet, citing Tipping J)

Intrusion: factors for offensiveness

Place; method and degree of intrusion; one-off or repeated; motive (Holland, Faesenkloet)

Critique of the highly offensive element

Arguably an unfair extra hurdle (Andrews result; Tipping J would fold it into REOP; Murray rejected it in the UK). Still NZ law, so apply it

LPC test

What the public NEEDS to know, not what it is curious about. Not gossip or salacious prying (Hosking)

LPC: sliding scale

The more serious the breach, the more public concern needed. A low-end breach needs little (Andrews)

LPC must relate to…

…the specific material published, not the programme as a whole (PG v TVNZ)

'Setting the record straight'

Campbell: if P publicly presents a false image, the press may correct it, but no further than necessary

Tombstone in a zombie film for 14 seconds

Bradley v Wingnut Films

Celebrity's twins photographed in a pushchair in Newmarket

Hosking v Runting

Couple's intimate conversation filmed for an hour after a car crash, broadcast on a reality show

Andrews v TVNZ

Hidden camera above a shower, footage never published

C v Holland

Neighbour's camera on a pole pointed at a driveway

Faesenkloet v Jenkin

Liquidator shared a personal email between businessman and wife with a few friends

Henderson v Walker

Supermodel photographed leaving Narcotics Anonymous after publicly denying drug use

Campbell v MGN (UK)

Famous author's toddler photographed on an Edinburgh street

Murray v Express Newspapers (UK)

Boatie without pants filmed for Water Patrol; officer says 'very unusual'

PG v TVNZ (BSA)

Bradley v Wingnut: key holding

HC. A public tombstone isn't private; a fleeting, incidental shot isn't highly offensive; freedom of expression concerns. Early recognition of the tort

Hosking v Runting: key holding

CA 3:2 created the tort (Gault P and Blanchard J; Tipping J). Claim failed: nothing a passer-by couldn't see; fame reduces REOP. Minority Keith and Anderson JJ: no tort, freedom of expression

Andrews v TVNZ: key holding

HC. REOP in public via 'no additional publicity'. Failed on highly offensive (shown in a positive light). Drink-driving didn't disqualify. LPC would have succeeded (low-end breach)

C v Holland: key holding

HC (Whata J). Created the intrusion tort as a 'logical adjunct' to Hosking; no publication needed. Holland liable

Faesenkloet v Jenkin: key holding

HC. Driveway has a low REOP, so not offensive. Location isn't decisive. Publication and intrusion are really one tort

Henderson v Walker: key holding

HC. Publicity needn't be widespread. Smaller audience makes offensiveness harder. Partly succeeded (intimate email, cavalier attitude)

Campbell v MGN: key holding

HL 3:2. Treatment details and photos went beyond correcting her false denial. Health information is private even if captured in public

Murray v Express Newspapers: key holding

EWCA. On Hosking-like facts, allowed the claim; the child hadn't chosen fame. Rejected Hosking's 'highly offensive' requirement. Persuasive only in NZ

Why use UK cases (Campbell, Murray) with care?

UK has no privacy tort (breach of confidence + Art 8 ECHR). In Europe privacy ranks equally with expression; NZBORA protects expression but not privacy (Andrews)

'There could scarcely be anything less private than…'

'…a tombstone in a public cemetery' (Bradley)

'Had… the clergyman been impaled upon it or the zombie… appear out of it…'

Bradley: then it might have been different. The tombstone was only 'part of the general ambience'

'Created in a side wind… amorphous, unnecessary…'

Anderson J, dissenting in Hosking

'A case crying out for an answer'

C v Holland (Whata J)

'Evolution, not revolution'

How the common law develops: Henderson extending Hosking; Winkelmann CJ