LAWS101: Advanced Reasoning and Argument 7
Recap: TVNZ v Rogers
Development of Law: This case illustrated that courts continuously develop the law, introducing new considerations not previously discussed in Hosking v Runting.
Expectation of Privacy Over Time: The court clarified that the expectation of privacy can change, and the relevant point for assessment is the time of publicity of the private facts.
Example: Rogers initially didn't expect his confession to be private, but once the court ruled it inadmissible to the jury, he gained an expectation of privacy regarding its public disclosure.
Context of Highly Offensiveness: What is 'highly offensive' depends heavily on the context and forum of disclosure.
Facts about an accused in a court trial are necessary and not highly offensive.
The same facts shown outside of court to the entire world, however, may be deemed highly offensive.
Legitimate Public Concern: The courts must weigh this up.
The Court of Appeal disagreed with the High Court regarding the balance between open justice considerations (transparency of the justice system) and the immense harm to Rogers from publicizing the confession tape.
This disagreement underscores that legal outcomes depend on factual nuances and arguments, and even judges can differ on the interpretation of law.
Introduction to Andrews v TVNZ
This is the final case in this series, offering a different application of the tort of invasion of privacy.
Unlike Hosking v Runting, which involved celebrities, Andrews v TVNZ applies the tort to ordinary private citizens who are recorded in a public setting.
The case further refines the application of the tort, explaining specific considerations.
Exam Relevance: This module's exam question will be a privacy scenario requiring the application of the tort of invasion of privacy, emphasizing strong reasoning and use of all legal knowledge and facts.
Facts of Andrews v TVNZ
The Andrews, a couple, crashed their car while driving home from a party, both being over the legal alcohol limit. No charges were laid as the driver couldn't be identified.
They sustained minor to moderate injuries.
Emergency rescue workers (including a camera crew filming a documentary series about emergency staff) arrived at the scene and used the 'jaws of life' to extricate them.
The Andrews were in shock and injured, largely unaware of the filming.
Approximately a year later, they saw themselves being rescued on a TVNZ documentary while watching with friends.
Content Shown: Mr. Andrews' face was largely obscured by an oxygen mask and pixelation (though sometimes visible). Mrs. Andrews was shown distressed, pleading for her husband to 'stay with me'. They were mentioned by their first names.
Applying the Tort of Invasion of Privacy (IRAC Method)
Issue: Do the Andrews have a claim under the tort of invasion of privacy against TVNZ?
Relevant Law: The three elements of the tort from Hosking v Runting:
The existence of private facts in respect of which there is a reasonable expectation of privacy.
Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.
An absence of a legitimate public concern defense.
Application: Element 1 - Reasonable Expectation of Privacy
Private Facts: The facts themselves (distress, potential injury, intimate conversation, vulnerable state post-accident) appear private.
Counter-argument (Public Place): The accident occurred in a public place. Generally, what happens in public is not subject to an expectation of privacy.
Court's Distinction - Audience Matters: The court in Andrews developed the law by distinguishing between different audiences.
The Andrews could not reasonably expect privacy from the emergency workers directly present at the scene. They had to expect a limited form of publicity.
However, they could reasonably expect privacy from the entire country seeing and hearing their intimate, distressed conversation and vulnerable state on television.
This highlights a quantitative difference in audience capacity and context, which Hosking did not explicitly address in this manner for public settings.
Plaintiff Culpability: TVNZ argued that the Andrews' drunk driving (wrongdoing) led to the accident and subsequent publicity, suggesting they shouldn't benefit from privacy protection (
plaintiff culpability).This is a potential factor that, under very specific circumstances, might prevent a claim if there's a clear connection between the wrongdoing and the publicity of private facts.
Court's Decision: In Andrews, the court found the connection insufficient. The footage was shown because of the accident, not specifically because of the drunk driving. Had the documentary been about drunk driving, the connection would be clearer.
Example: The Naomi Campbell case (photographed leaving drug rehab after publicly denying drug use) provides an example of a clearer connection where plaintiff culpability might be relevant.
Exam Advice: Only discuss plaintiff culpability if there is a clear, arguable link between wrongdoing and publicity in the scenario.
Conclusion on Expectation: The court found that the Andrews did have a reasonable expectation of privacy concerning the widespread broadcast of their distressed state in the documentary.
Application: Element 2 - Highly Offensive Publicity
Arguments Against High Offensiveness: Some might argue that being in distress after an accident is understandable, not inherently humiliating, and evokes empathy, thus not 'highly offensive'. The documentary also portrayed Mrs. Andrews in a positive light (caring, later joking).
Arguments For High Offensiveness: Being shown in a highly vulnerable state, in shock, injured, in tears, expressing deep concern for a partner, and having no control over this public display, could be considered highly offensive by many.
Court's Flawed Reasoning: The court concluded the footage was not highly offensive because the Andrews themselves (subjectively) did not find it particularly offensive. Instead, they were offended by the lack of consent.
Critique: This directly contradicts the Hosking v Runting standard, which requires an objective reasonable person test, not the subjective feelings of the plaintiff. This shows courts can misapply their own established legal principles.
Relevance of Consent: The court stated that consent for filming/recording in a public place is not a legal requirement under New Zealand law for the tort of invasion of privacy. While the Broadcasting Standards Authority may sometimes 'wag a finger,' it has no bearing on actual privacy claims.
Identifiability: TVNZ argued the Andrews were not identifiable (blurred faces, first names only), referencing Bradley v Wingnut Films (where non-identifiability meant no harm).
Court's Decision: It is sufficient for somebody (e.g., friends or family) to be able to identify the individual, not necessarily the general public. The Andrews' friends identified them.
Exam Advice:
Only discuss identifiability if it's an actual issue in the scenario.
Identifiability is a threshold issue: If a person is not identifiable, publicity cannot be highly offensive. If identifiable, it may be highly offensive, but identifiability itself does not make it offensive. Other factors (distress, blood, etc.) contribute to offensiveness.
Application: Element 3 - Absence of Legitimate Public Concern (Defense)
TVNZ's Argument: There is a legitimate public interest in seeing how emergency workers operate, what their lives are like, and how they rescue people, especially as they might affect any citizen.
Court's View: The court agreed this was a legitimate public concern, similar to the public's interest in the justice system in Rogers.
Balancing Test: The court did not formally rule, given its finding on offensiveness, but outlined how the balancing would work:
Harm to Andrews: The potential harm was likely on the lower end, even if considered 'highly offensive' (not comparable to the impact of publicizing a murder confession).
Public Interest: While legitimate, the public's need to know how firefighters work is also not 'super important' compared to, for example, knowing about a murderer afoot.
Journalistic Latitude: The court acknowledged that journalists require leeway in how they report. Using actual footage makes documentaries more impactful and persuasive than reenactments, catering to the human desire for real imagery.
Clear Connection: There was a direct connection between the public interest (firefighters' work) and the footage shown (firefighters rescuing people).
Court's Likely Outcome: Even if the footage had been found highly offensive, the court likely would have found that the legitimate public concern in seeing the footage (due to a lower level of harm, journalistic latitude, and a clear connection between interest and content) would have outweighed the harm to the Andrews.
Exam Advice: Focus on presenting a well-reasoned argument for the balancing, explaining why one factor is more important than the other, rather than simply stating an outcome.
Conclusion (Andrews v TVNZ)
The court ultimately found against the Andrews, primarily based on the arguably incorrect application of the 'highly offensive' test (using subjective plaintiff feelings instead of the objective reasonable person standard).
Despite this, the case significantly developed the understanding of 'expectation of privacy' concerning audience size and introduced the concepts of 'plaintiff culpability' and further refined the balancing of 'legitimate public concern' against privacy harm.