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Hyndman v Walker [2021] NZCA 25; [2021] 2 NZLR 685 (23 February 2021)

Last Updated: 26 October 2022

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JUDGMENT OF THE COURT

1. The appeal is dismissed.
2. The respondent is entitled to costs for a standard appeal on a band A basis plus usual disbursements. We certify for second counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

• [1] The High Court dismissed Ian Hyndman’s tort claim for invasion of privacy, finding that he had a reasonable expectation of privacy in certain private communications but their disclosure by Robert Walker did not meet the highly offensive threshold designed to discourage trivial claims.^[1]
• [2] In this appeal Mr Hyndman asks us to modify the elements of the tort by removing the “highly offensive” requirement; alternatively, to find that, when the test is properly applied, Mr Walker’s behaviour and the circumstances of his disclosure were highly offensive and justify a declaration and a modest award of damages.
• [3] As we explain later, we consider this tort may well benefit from re‑examination, and the opportunity to re-examine it very seldom arises. But it is not possible to remove the “highly offensive” requirement without reformulating the tort, and that is an exercise that courts must undertake with care having regard to the treatment accorded to privacy generally in New Zealand law and the need to balance rights of privacy against those of free expression. This case does not engage the latter rights, and for that reason it is an unsatisfactory vehicle for the reform counsel have asked us to undertake. Further, while Mr Walker’s conduct merits condemnation, Thomas J rightly found that the alleged breach of Mr Hyndman’s privacy was trifling. We also conclude that the claim would fail even if we were to adopt the more liberal formulation used in English law.
• [4] We turn to the circumstances of the alleged breach.

The background

The Henderson disclosure

• [5] We have drawn the facts from the judgment of Thomas J below and her companion judgment in David Henderson’s successful claims against Mr Walker.^[2] The facts are not now in dispute.
• [6] Mr Hyndman is a friend and business associate of Mr Henderson, an ambitious but unsuccessful and now bankrupt property developer whose companies, which it is convenient to collectively call PVL, were put into liquidation owing very large sums to secured and unsecured creditors. PVL was put into liquidation in July 2010 but the liquidation was immediately stayed pending appeal and remained stayed until 8 February 2012. Mr Walker is the liquidator. The liquidation has been highly contentious and litigious. Thomas J began her judgment in Mr Henderson’s case by remarking that it is an understatement to say there is bad blood between him and Mr Walker. Mr Hyndman appears to have become involved by taking on directorships of some of Mr Henderson’s companies.
• [7] From July 2010, Mr Walker set about his work by calling for records of PVL. Mr Henderson did not co-operate. Mr Walker alleged that various offences had been committed and took steps to have the police obtain and execute search warrants. Among the items seized when the warrants were executed on 8 April 2011 was a tape drive holding a backup copy of PVL’s server and a laptop belonging to PVL but used by Mr Henderson. The police did not retain this material as they ought to have done but gave it to Mr Walker, notwithstanding the liquidation had been stayed.
• [8] Shortly after Mr Walker delivered copies of seized documents to the Serious Fraud Office. He also told others, including the National Business Review, that he held a great many emails and other evidence. He made those claims to a private investigator, Wayne Idour, who had been engaged by Mr Henderson and is said to have falsely claimed to be a representative of unsecured creditors. In a conversation with Mr Idour in June 2011 Mr Walker spoke of Mr Henderson in derogatory terms and expressed some doubt about his own rights to retain and share with others some of the information he held. He nonetheless said that Mr Idour could “fly to bloody Wellington and [he] can look at it”.
• [9] The police subsequently did not commence prosecutions, and the warrants were later declared unlawful. The liquidation remained stayed, but Mr Walker was permitted to retain information and material that was the property of PVL. That property included the tape drive, which included a backup copy of the laptop.
• [10] The tape drive included documents of a private nature, which Thomas J categorised as:^[3]

(a) personal emails between Mr Henderson and his wife talking about issues in their marriage;

(b) personal emails between Mr Henderson and his friends relating to marital breakdowns, health, weight loss, and fitness;

(c) emails relating to medical advice and ordering various medical supplements;

(d) photographs of family, friends and pets;

(e) emails to Mr Henderson from public figures (including politicians) seeking advice;

(f) emails with legally privileged material, including in relation to companies of which Mr Walker was the liquidator; and

(g) emails unrelated to the affairs of the companies of which Mr Walker was liquidator.

• [11] Over the period between 12 April and 22 September 2011 Mr Walker made at least 11 distributions of this private information. He gave copies of the tape drive to the Inland Revenue Department and he disclosed specific items to a number of other people, including the Official Assignee, who had no colourable claim to PVL’s or Mr Henderson’s information. This proceeding concerns just one of those disclosures, made to a Mr Garry Holden and one or two other people.

Mr Walker’s disclosure to Mr Holden

• [12] Following the lifting of the stay on the original liquidations, Mr Walker was appointed liquidator of a further 15 PVL companies on 9 February 2012. Mr Hyndman was a director of these companies, having assumed office after personal bankruptcy disqualified Mr Henderson from holding that office.
• [13] Mr Walker subsequently provided private information of Mr Hyndman’s to Mr Holden, who had formed a relationship with Mr Hyndman’s former de facto partner. Mr Holden had no interest in the affairs of PVL but he did harbour an intense dislike of Mr Hyndman, whom he harassed for about three years via abusive emails and text messages. Mr Holden’s behaviour resulted in Mr Hyndman securing a restraining order against him in 2015.
• [14] It is necessary to explain with some care the origin and nature of Mr Hyndman’s private information that Mr Walker disclosed to Mr Holden and that is at issue here.
• [15] On 22 July 2010 Mr Holden had sent Mr Hyndman an email containing what the Judge described as very personal information of Mr Hyndman.^[4] We would describe the email as an abusive tirade which included a number of allegations regarding Mr Hyndman’s character. It appears it had been sent after Mr Hyndman had called to speak to his former de facto partner. Mr Holden accused Mr Hyndman of having been a controlling partner in his former relationship with her. Mr Holden accused him of childishness and of being a poor father, of being paranoid about him, and of being involved in “bizarre groups”.
• [16] None of these allegations originated with Mr Walker and he was not responsible for Mr Holden sending the email to Mr Hyndman. Mr Walker was not on notice at the time that Mr Holden was, as he put it in evidence, “toxic” in his attitude toward Mr Hyndman. Mr Hyndman’s complaint against Mr Walker is not based on Mr Hyndman’s personal information contained in Mr Holden’s 22 July email.
• [17] Rather, Mr Hyndman shortly afterwards forwarded Mr Holden’s email to Mr Henderson. Then, on 26 July, Mr Henderson emailed to Mr Hyndman a draft reply he had prepared for Mr Henderson to send to to Mr Holden. The draft reply was written to mock Mr Holden. It contained few, if any, references to Mr Hyndman. Mr Hyndman described that email correspondence as a humorous exchange between him and Mr Henderson.
• [18] The substantive content of that exchange was confined to Mr Holden’s email to Mr Hyndman and the proposed reply to Mr Holden drafted by Mr Henderson. Mr Hyndman chose not to send that proposed reply. The exchange of emails between Mr Henderson and Mr Hyndman contained no other information of a private nature.
• [19] Mr Hyndman would appear to have become aware of the disclosure to Mr Holden of the 26 July email when, on 22 September 2011, Mr Hyndman received a series of texts from Mr Holden. One of them claimed that “Wayne”, apparently meaning Mr Idour, had obtained for Mr Holden copies of emails between Mr Hyndman and Mr Henderson, and alleged that “[b]ack then you stated i was pot smoker and pokie addict, great emails”. Mr Holden claimed that Mr Idour was now working for him. It will be recalled that Mr Idour was originally Mr Henderson’s agent, engaged to obtain information from Mr Walker.
• [20] The Judge found that through Mr Walker the draft email of 26 July 2010 had been disclosed to Mr Holden.^[5] She did not find that Mr Walker disclosed it himself, and she noted his evidence that he cut ties with Mr Holden once he understood the latter’s behaviour. She found on balance that disclosure was indirect, perhaps by Ryan Eathorne, who was an employee or contractor of Mr Walker’s, giving it to Grahame Thorne, a former friend of Mr Henderson’s who had fallen out with him over a water right, or to Mr Holden. She did not find that Mr Idour, who was unavailable to give evidence, was the conduit.
• [21] The Judge stated that she was willing to find that Mr Walker had disclosed other private communications to adversaries of Mr Henderson and Mr Hyndman.^[6] She accepted that, while he was focused on Mr Henderson’s business affairs, Mr Walker took some pleasure in sharing private information to which he had access with others whom he knew to be hostile toward Mr Henderson and Mr Hyndman. But the only other specific disclosures involved matters that were public in nature or did not involve Mr Hyndman. And on appeal the 26 July email is the only specific disclosure relied on by Mr Hyndman.
• [22] The Judge found that the 26 July email, to which was attached the 22 July email from Mr Holden, was disclosed to two or three people. They presumably included Mr Holden and Mr Thorne. Mr Holden had obviously already seen the 22 July email.

The High Court judgment

• [23] The Judge dismissed Mr Hyndman’s claims for breach of confidence, invasion of privacy, misfeasance in public office, breach of statutory duty and contempt of court. The appeal is confined to invasion of privacy, so we need not discuss the other causes of action. We record that the Judge dismissed the claim for breach of confidence on the ground that there was no relationship of confidence between Mr Walker and Mr Hyndman and no obligation of confidence arose in the circumstances.^[7]
• [24] The Judge held that the invasion of privacy tort extends to the disclosure of private documents to a third party without authorisation and does not require disclosure to the public generally.^[8] Hosking v Runting concerned widespread disclosure, but this Court did not preclude further development of the tort. There may be a reasonable expectation of privacy and qualifying conduct by the defendant that would be considered highly offensive to an objective reasonable person. The more limited the audience the harder it will be to show the invasion was highly offensive, and so actionable.
• [25] The Judge found that the 26 July 2010 email was a private communication between close friends, in which Mr Hyndman had a reasonable expectation of privacy.^[9] That expectation extended to the attached 22 July email from Mr Holden.^[10] Mr Walker knew that there was personal information on the laptop. However, there was no realistic argument that disclosure of emails of this kind would be considered highly offensive by a reasonable person:^[11]

There is nothing embarrassing or compromising, or even particularly personal, in the 26 July 2010 email. There is also no evidence to suggest any other documents disclosed by Mr Walker to Mr Holden or Mr Thorne were more personal in nature. Furthermore, the emails were disclosed to a very limited audience of two or three private individuals, albeit individuals who held grudges against Mr Hyndman and Mr Henderson.

• [26] Mr Hyndman’s claim accordingly failed.

Corresponding findings in Mr Henderson’s case

• [27] In the Henderson proceeding Thomas J discussed the relationship between invasion of privacy and breach of confidence.^[12] Mr Walker was held liable to Mr Henderson in both causes of action. Mr Henderson was awarded damages of $5000 for breach of confidence and a declaration, with no damages, for invasion of privacy.^[13]
• [28] What distinguished Mr Henderson’s case from this one was that a relationship of confidence was held to arise by reason of Mr Walker’s status as liquidator and the disclosures were far more extensive.^[14] For the most part, though, the information was mostly concerned with the affairs of PVL and it was mostly disclosed to people who had a proper interest in it.^[15] The Official Assignee had a proper interest in much of the material but received some personal information, the disclosure of which was highly offensive.^[16] By reference to the authorities, the Judge concluded it could not be said that these disclosures merited an award of damages.^[17] Some disclosures were made to people such as Mr Thorne, and although there was no justification for Mr Walker’s conduct in those cases there was also nothing to suggest the disclosures would be highly offensive to an objective reasonable person.^[18]

The appeal

• [29] For Mr Hyndman, Mr Moss contended that this Court should not follow Hosking v Runting but rather should depart from it by discarding the “highly offensive” limb, which he said was unduly restrictive, uncertain in application and unnecessary. It is unnecessary because the concept of a reasonable expectation of privacy adequately limits the reach of the tort. Alternatively, Thomas J focused too much on the content of the emails and not enough on the offensive conduct of Mr Walker in disclosing them to people who held grudges against Mr Hyndman. He submitted that this Court ought to find the breach proved and make a modest award of damages.
• [30] For Mr Walker, Mr Fowler QC submitted that the Judge was right to find no breach in this case and there is no need to reformulate the tort; doing so would only burden the courts with trivial claims of the type Mr Hyndman has brought.

The tort of giving publicity to private facts in New Zealand

• [31] The tort is aimed at publicity given to private facts.^[19] It is generally accepted that the tort is founded on a person’s inherent dignity, and oftentimes personal autonomy,^[20] and is a constraint on others’ right to freedom of expression.
• [32] In Hosking v Runting a well-known television personality failed to obtain an injunction against a magazine company for the publication of photographs taken of his wife and infant children in a public street.^[21] A majority of the Full Court of the Court of Appeal recognised a new tort of giving publicity to private facts in New Zealand, opting not to follow English law, which then relied on breach of confidence. Gault, Blanchard and Tipping JJ held that a successful claim for invasion of privacy requires: ^[22]

(a) The existence of facts in respect of which there is a reasonable expectation of privacy; and

(b) Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.

• [33] The second limb was carried over directly from the American formulation of the tort,^[23] and restated by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,^[24] the Court of Appeal reasoning that some breaches of privacy are to be expected and only the most serious should be actionable. As Gault and Blanchard JJ said in Hosking:

[72] Finally, the matter made public must be one that would be offensive and objectionable to a reasonable man of ordinary sensibilities: Reed v Real Detective Publishing Co Inc 63 Ariz 294; 162 P 2d 133 (1945); Davis v General Finance & Thrift Corporation 80 Ga App 708; 57 SE 2d 225 (1950). It is only when the publicity given is such that a reasonable person would feel justified in feeling seriously aggrieved by it that the cause of action arises. Prosser explained at p 396 that this is because, given the nature of society, no one can avoid the public gaze or public inquiry entirely and “complete privacy does not exist in this world”.^[[25]]

• [34] Gault and Blanchard JJ were concerned to limit liability to breaches of privacy that were “truly humiliating and distressful or otherwise harmful”, regardless of the scale of publicity given to the information.^[26] The concern of the law is generally with “widespread publicity of very personal and private matters”, and is distinct from publication relating to defamation.^[27]
• [35] The Judges emphasised that what must be “highly offensive” is the publicity, not the information itself:

[127] We consider that the test of highly offensive to the reasonable person is appropriate. It relates, of course, to the publicity and is not part of the test of whether the information is private.

• [36] Legitimate public concern was established as a defence to the tort.^[28]
• [37] Tipping J, in a concurring judgment, agreed that there was a need for a privacy tort.^[29] However he was not convinced that the “highly offensive” requirement ought to be standalone; rather he thought the question of offensiveness could be accounted for within the assessment of a reasonable expectation of privacy. He expressed some hesitation that a “high” level of offensiveness could be unduly restrictive, preferring the descriptor “substantial”:

[255] It is conventional in the American jurisprudence to measure expectations of privacy and whether any asserted expectation is reasonable by the level of offence, and thus of harm, which publication of the material in question might be expected to cause an ordinary member of society in the plaintiff’s circumstances. The standard criterion has been to require a high level of offence. Such a formulation is a useful reminder that relatively trivial invasions of privacy should not be actionable. This criterion also has the effect of requiring something substantial before there can be any intrusion on freedom of expression.

[256] While I recognise the value and the importance of these factors, and would not wish to encourage litigation at a low level of impact, I would myself prefer that the question of offensiveness be controlled within the need for there to be a reasonable expectation of privacy. In most cases that expectation is unlikely to arise unless publication would cause a high degree of offence and thus of harm to a reasonable person. But I can envisage circumstances in which it may be unduly restrictive to require offence and harm at that high level. That might be so if, for example, the publication served little or no public good, save an abstract upholding of the liberty theory. I accept that it will always be necessary for the degree of offence and harm to be substantial, so that freedom of expression values are not limited too readily. At the risk of being thought guilty of a verbal quibble, I would prefer the qualifier to be a substantial level of offence rather than a high level of offence. That seems to me to be a little more flexible, while at the same time capturing the essence of the matter.

This view of the tort largely aligns with that now taken in the United Kingdom, as we explain below.

• [38] The minority in Hosking v Runting, Keith J and Anderson P, held that a cause of action for giving publicity to private facts ought not be recognised in New Zealand. Keith J thought it significant that a right to privacy was not included in the New Zealand Bill of Rights Act 1990,^[30] and that existing, limited statutory protections told “strongly against” the existence of a tort of privacy.^[31] He pointed to the limited success of privacy claims in the United States,^[32] and observed that a tort could contribute to a chilling effect on freedom of expression.^[33] Anderson P concurred, finding that the tort would be an unjustified limitation on freedom of expression.^[34]
• [39] There has been very little development of the tort in the 16 years since Hosking v Runting. In Television New Zealand Ltd v Rogers, a broadcaster sought to use a police video interview with the plaintiff, Noel Rogers, in a television broadcast.^[35] In the interview he made damning admissions that he was responsible for the death of Kathy Sheffield, for which he was later acquitted at trial. The video was seemingly confidential and it was unclear how it had made its way into the hands of Television New Zealand. It had been ruled inadmissible before trial because it was obtained in substantial breach of Mr Rogers’ rights. He claimed its broadcast would breach his privacy, while Television New Zealand responded with the defence of public concern. The Supreme Court dismissed Mr Rogers’ appeal, allowing the interview to be broadcast.
• [40] McGrath J, with whom Blanchard and Tipping JJ concurred, held that the privacy claimed failed on the test as formulated in Hosking v Runting.^[36] The test itself was not affirmed or critiqued. The Judge was not convinced that the video interview had a private character,^[37] and held that open justice should prevail.^[38]
• [41] Elias CJ, with Anderson J, was of the ultimate view that the case should be remitted back to the High Court for reconsideration because the claim was not pleaded properly at first instance.^[39] She was also hesitant to accept the test for a breach of privacy as expressed in Hosking v Runting because of the overlapping claim in confidence on the facts in Rogers.^[40] She also pointed out that the “highly offensive” element of the Hosking test had been doubted by the House of Lords in Campbell v MGN Ltd.^[41]

[25] In view of developments in other jurisdictions since Hosking v Runting was decided, it is necessary to be cautious. I believe this Court should, for example, reserve its position on the view expressed in Hosking v Runting (applying a test suggested by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd) that the tort of privacy requires not only a reasonable expectation of privacy but also that publicity would be “highly offensive”. The test has been doubted by members of the House of Lords in Campbell v Mirror Group Newspapers Ltd.

(Footnotes omitted.)

She also commented that the relevant time at which a reasonable expectation of privacy is assessed was left unresolved by the Hosking case.^[42]

• [42] No privacy case since Rogers has gone further than the High Court. All have applied the Hosking v Runting test as set out by the majority. In Andrews v Television New Zealand Ltd, footage of a couple injured in a car crash aired on television was found to engender a reasonable expectation of privacy.^[43] The footage included intimate conversation between the couple. But the publicity was found not to be highly offensive to a reasonable person.^[44] Allan J considered the “highly offensive” test was distinct from the reasonable expectation of privacy assessment because the former related to publicity.^[45] He went on to hold that a reasonable expectation of privacy is to be assessed at the time of publication.^[46] Ultimately the claim failed because the plaintiffs were unable to identify any aspect of the footage which they regarded as humiliating, embarrassing or offensive.^[47]
• [43] The District Court decision in Brown v Attorney-General involved successful claims for breach of privacy and breach of confidence where police posted public flyers bearing an offender’s name, address, and photograph and identified him as a convicted paedophile.^[48] Contrasting Andrews, Judge Spear interpreted the reasonable expectation of privacy assessment to be at the time privacy is alleged to have been “invaded”.^[49]
• [44] In A v Hunt (Contempt), Wild J held that a claim for breach of privacy was not available for the discussion of a confidential settlement in a published book on the basis that there was “no disclosure of highly offensive, private facts”.^[50] The Judge took the view that the facts themselves must both be offensive and true to found a cause of action.^[51] Similarly in Chatwin v APN News and Media Ltd, an application for an interim injunction, Katz J described the offensiveness in the second limb of the test as relating to the nature of the facts disclosed: “the facts must be of a kind the publicity of which would be highly offensive or objectionable to a reasonable person of ordinary sensibilities”.^[52] These cases suggest that the “highly offensive” requirement has migrated to some degree, from the publicity given to private information to the nature of the information itself.
• [45] In a recent strike-out judgment in Driver v Radio New Zealand Ltd, Clark J took note of the circumstances relevant to whether there was a reasonable expectation of privacy that have developed in English law.^[53] We return to these factors below at [66]. The Judge also acknowledged that there can be overlap between defamation and privacy torts where disclosure of private facts could cause both distress and concern for one’s reputation.^[54]
• [46] In another recent decision of the High Court, Peters v Bennett, Venning J also drew on English authority in questioning whether the “highly offensive” limb of the tort is necessary.^[55] He confirmed that the assessment is nevertheless “contextual” — disclosure of superannuation information to the Ministry of Social Development in that case could not be regarded as highly offensive.^[56] The Judge found that, in contrast, disclosure of that information to the media would and did amount to breach of privacy.^[57] But in the absence of an identifiable conduit the claim failed.^[58] We note that an appeal is pending in that case.
• [47] The handful of other tortious claims for making private facts public have involved straightforward application of the Hosking v Runting test in the context of applications for interlocutory injunctions^[59] or strikeouts,^[60] most of them unsuccessful.^[61]

No remedy in this case under existing law

• [48] It is common ground that the emails between Messrs Hyndman and Henderson were personal communications between friends who had a reasonable expectation of privacy in them.
• [49] We turn to the information disclosed. As Mr Moss accepted, its personal nature is relevant though not dispositive. The 26 July email drafted by Mr Henderson was what the Judge described as a “tongue-in-cheek” response to the abusive and personal allegations made in Mr Holden’s email of 22 July.^[62] The 26 July email contained, as the Judge found, “nothing embarrassing or compromising, or even particularly personal”.^[63] It was aimed at Mr Holden, commenting on his age, appearance and background, and as we have said it was written to be sent to Mr Holden.
• [50] Turning next to circumstances of the publicity, the emails were not published generally, but only to a very small number of people. We accept that disclosure to a small class may suffice, but the broader the publicity and the less prior knowledge in the audience, the more likely it is that disclosure will be highly offensive.^[64] It must be borne in mind that the person to whom Mr Hyndman finds the disclosure most offensive was Mr Holden, who obviously knew what was in the 22 July email because he wrote it. Mr Thorne was likely also to be aware already of Mr Holden’s views of Mr Hyndman. It is presumably for this reason that the claim focuses on the draft reply rather than the personal and abusive allegations in the email of 22 July, though Mr Walker disclosed both.
• [51] There is evidence that the disclosure caused offence to Mr Hyndman. He deposed that Mr Walker’s various disclosures (not confined to the 22 and 26 July emails) caused him great emotional distress and the information was used by his enemies to threaten, belittle and criticise him. He said that he felt powerless. And he gave evidence of health, personal and business problems that he attributed to Mr Walker’s behaviour. However, the Judge heard that evidence and she did not find that Mr Walker’s behaviour would have had these effects on the reasonable person.^[65] She did not refer to the impact on Mr Hyndman at all.
• [52] We accept for present purposes that Mr Hyndman had been harassed by Mr Holden. We accept too that the loss of control over private communications might be harmful even if the content were completely unremarkable. Further, Mr Hyndman had chosen not to send the 26 July email to Mr Holden, and by disclosing it Mr Walker took that decision out of his hands. But we are not prepared, in the absence of findings below, to find that the disclosure of the 22 and 26 July emails had the effects of which Mr Hyndman complains. His evidence did not focus on those emails (it will be recalled that Mr Walker was accused of making a number of disclosures). He said rather that he was already going through a difficult time when the emails were sent.
• [53] Nor do we accept that a reasonable person would find the disclosures seriously offensive. We readily accept that the reasonable person would take exception to Mr Walker’s misuse of information gained in the exercise of statutory powers; we return to that point at [77] below. But the privacy tort focuses on the expectation of privacy and the circumstances of the disclosure. We add that the reasonable observer would recognise that the disclosure occurred in the context of a running battle between Mr Henderson, who was seeking to avoid accountability for a failed business venture, and Mr Walker, who was pursuing the interests of creditors but had lost the objectivity expected of a liquidator. There were questionable practices on both sides. The Judge did not find that Mr Idour passed on these particular emails, but he was an agent of Mr Henderson and did obtain information from Mr Walker by passing himself off as a representative of creditors.^[66]
• [54] For these reasons, we agree with the Judge that Mr Walker’s (via Mr Eathorne) disclosure to Mr Holden or Mr Thorne did not meet the “truly humiliating and distressful or otherwise harmful” standard set by Hosking v Runting.^[67] It would not be considered highly offensive to a reasonable person in Mr Hyndman’s position.

Where next for the tort?

• [55] Mr Moss developed a persuasive argument that the tort is ripe for further development, particularly having regard to developments in English law that began with the House of Lords decision in Campbell v MGN Ltd, which was delivered just over one month after Hosking v Runting.^[68] His submissions relied on the work of Professor Nicole Moreham, who has written extensively on the topic.^[69] We will survey the English developments briefly before summarising the argument.

Developments in English law

• [56] Developments in English law have owed much to the Human Rights Act 1998 (UK). That legislation gave effect to art 8 of the European Union Convention on Human Rights, which recognises that everyone has “the right to respect for his private and family life, his home and his correspondence”.
• [57] In Campbell, the House of Lords unanimously recognised a cause of action for “wrongful disclosure of private information”, overturning the Court of Appeal.^[70] Although framed as an extension to the breach of confidence tort rather than a standalone privacy tort, it was said to give effect to arts 8 and 10 of the Convention and was described as a protection against “invasion of privacy”.^[71]
• [58] The facts were that photographs were taken of a celebrity fashion model apparently leaving a Narcotics Anonymous meeting and published in a news article stating that she was a drug addict who was receiving treatment for her addiction, attending Narcotics Anonymous, and giving details of her treatment. The claimant accepted that the newspaper was entitled to disclose that she was a drug addict receiving treatment because she had previously publicly denied any drug use. But a majority of the Court found that details of the claimant’s therapy were largely indistinguishable from details of a medical condition or its treatment, being private details that imported a duty of confidence.^[72] Disclosure risked disrupting her treatment and an objective and reasonable person in her shoes would find it distressing and highly offensive.^[73]
• [59] The rationale for the cause of action in England and Wales is “the protection of human autonomy and dignity — the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people”.^[74] As Lord Hoffmann described, the tort balances freedom of expression against the right to protect personal information:

[55] I shall first consider the relationship between the freedom of the press and the common law right of the individual to protect personal information. Both reflect important civilised values, but, as often happens, neither can be given effect in full measure without restricting the other. How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need: see Sedley LJ in Douglas v Hello! Ltd [2000] EWCA Civ 353; [2001] QB 967, 1005, para 137.

• [60] The test centres on “whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy”.^[75] Lord Nicholls rejected a “highly offensive” threshold, saying that such a consideration more properly goes to the secondary question of the proportionality of the breach such as the degree of intrusion into private life, and the extent to which publication was a matter of proper public concern:

21 Accordingly, in deciding what was the ambit of an individual’s “private life” in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.

22 Different forms of words, usually to much the same effect, have been suggested from time to time. The American Law Institute, Restatement of the Law, Torts, 2d (1977), section 652D, uses the formulation of disclosure of matter which “would be highly offensive to a reasonable person”. In Australian Broadcasting Corpn v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 266, para 42, Gleeson CJ used words, widely quoted, having a similar meaning. This particular formulation should be used with care, for two reasons. First, the “highly offensive” phrase is suggestive of a stricter test of private information than a reasonable expectation of privacy. Second, the “highly offensive” formulation can all too easily bring into account, when deciding whether the disclosed information was private, considerations which go more properly to issues of proportionality, for instance, the degree of intrusion into private life, and the extent to which publication was a matter of proper public concern. This could be a recipe for confusion.

• [61] Similarly, Baroness Hale did not see much benefit in a “highly offensive” limb to the test for reasonable expectation of privacy. She stated that it had been taken out of context from the judgment of Gleeson CJ in the High Court of Australia decision in Australian Broadcasting Corp v Lenah Game Meats Pty Ltd:

134 ... The position we have reached is that the exercise of balancing article 8 and article 10 [which protects freedom of expression] may begin when the person publishing the information knows or ought to know that there is a reasonable expectation that the information in question will be kept confidential. ...

135 An objective reasonable expectation test is much simpler and clearer than the test sometimes quoted from the judgment of Gleeson CJ in the High Court of Australia in Australian Broadcasting Corpn v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 226, para 42, that “disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities”. It is important to set those words in their full context, bearing in mind that there is no constitutional protection of privacy in Australia:

“There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.”

136 It is apparent, therefore, that Gleeson CJ did not intend those last words to be the only test, particularly in respect of information which is obviously private, including information about health, personal relationships or finance. It is also apparent that he was referring to the sensibilities of a reasonable person placed in the situation of the subject of the disclosure rather than to its recipient.

• [62] Instead Baroness Hale framed the appropriate test as, first, an assessment of whether there was a reasonable expectation of privacy in respect of the information disclosed followed by, second, a balancing exercise of the claimant’s privacy interest against the respondent’s interest in disclosure:

137 It should be emphasised that the “reasonable expectation of privacy” is a threshold test which brings the balancing exercise into play. It is not the end of the story. Once the information is identified as “private” in this way, the court must balance the claimant’s interest in keeping the information private against the countervailing interest of the recipient in publishing it. Very often, it can be expected that the countervailing rights of the recipient will prevail.

• [63] Lord Hope was of the view that where information that is clearly private is disclosed, then breach of confidence can be established on that basis alone.^[76] He did not think that the “highly offensive” test would be necessary in such cases.^[77] But where there is room for doubt, it could assist.^[78] He held that the relevant reasonable person to whom publication must be highly offensive is an objective person in the claimant’s shoes; “[t]he question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity”.^[79]
• [64] Campbell has established that the English cause of action for breach of confidence extends to unauthorised or public disclosure of private information.^[80] Subsequent cases have developed the tort further. Notably, it no longer requires that there be a relationship of confidence and it has been increasingly recognised as a separate privacy tort.^[81]
• [65] In Murray v Express Newspapers plc the Court of Appeal developed the test for a reasonable expectation of privacy.^[82] Covert photographs were taken of a famous author’s infant son while the parents were pushing his stroller down a public street. The parents claimed for breach of privacy on their son’s behalf, which was struck out by the trial judge in reliance on Hosking v Runting. The Court of Appeal reversed the strike-out, holding there was an arguable cause of action.
• [66] The Court identified seven contextual factors relevant to the assessment of a reasonable expectation of privacy. They were the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.^[83] It confirmed that “reasonable person” is one in the same position as the claimant.^[84]
• [67] The Court expressly rejected a “highly offensive” limb, opting rather for the second-stage rights balancing exercise favoured by Baroness Hale in Campbell:

35 In these circumstances, so far as the relevant principles to be derived from Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 are concerned, they can we think be summarised in this way. The first question is whether there is a reasonable expectation of privacy. This is of course an objective question. The nature of the question was discussed in Campbell v MGN Ltd. Lord Hope emphasised that the reasonable expectation was that of the person who is affected by the publicity. He said, at para 99: “The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.” We do not detect any difference between Lord Hope’s opinion in this regard and the opinions expressed by the other members of the appellate committee.

36 As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.

...

40 At a trial, if the answer to the first question were yes, the next question would be how the balance should be struck as between the individual’s right to privacy on the one hand and the publisher’s right to publish on the other. If the balance were struck in favour of the individual, publication would be an infringement of his or her article 8 rights, whereas if the balance were struck in favour of the publisher, there would be no such infringement by reason of a combination of articles 8(2) and 10 of the Convention.

41 At each stage, the questions to be determined are essentially questions of fact. The question whether there was a reasonable expectation [of] privacy is a question of fact. If there was, the next question involves determining the relevant factors and balancing them. As Baroness Hale put it, at para 157, the weight to be attached to the various considerations is a matter of fact and degree. That is essentially a matter for the trial judge.

• [68] Later authorities have held that trivial breaches will not found a cause of action.^[85] The alleged harm to the plaintiff’s personal autonomy must attain “a certain level of seriousness”,^[86] the expectation of privacy must be objectively reasonable, and countervailing public interest considerations may outweigh the privacy interest. In R (Wood) v Commissioner of Police, Laws LJ held that:

21 The notion of the personal autonomy of every individual marches with the presumption of liberty enjoyed in a free polity: a presumption which consists in the principle that every interference with the freedom of the individual stands in need of objective justification. Applied to the myriad instances recognised in the article 8 jurisprudence, this presumption means that, subject to the qualifications I shall shortly describe, an individual’s personal autonomy makes him — should make him — master of all those facts about his own identity, such as his name, health, sexuality, ethnicity, his own image, of which the cases speak; and also of the “zone of interaction” ... between himself and others. He is the presumed owner of these aspects of his own self; his control of them can only be loosened, abrogated, if the state shows an objective justification for doing so.

22 This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual’s liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases. At the same time it is important that this core right protected by article 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose I think there are three safeguards, or qualifications. First, the alleged threat or assault to the individual’s personal autonomy must (if article 8 is to be engaged) attain “a certain level of seriousness”. Secondly, the touchstone for article 8(1)’s engagement is whether the claimant enjoys on the facts a “reasonable expectation of privacy” (in any of the senses of privacy accepted in the cases). Absent such an expectation, there is no relevant interference with personal autonomy. Thirdly, the breadth of article 8(1) may in many instances be greatly curtailed by the scope of the justifications available to the state pursuant to article 8(2). ...

(Citations omitted.)

The argument for reform of the tort

• [69] Arguments for reform of the New Zealand tort are much informed by developments in English law and focus on the “highly offensive” limb of the tort.
• [70] Perhaps the weightiest argument is that the tort takes too narrow a view of privacy harm. Professor Moreham emphasises that the tort is concerned with “the preservation of choice about when the private aspects of one’s life will be accessible to others. This ... is a fundamental aspect of individual dignity and autonomy”.^[87] To interfere with privacy is to undermine dignity, and for that reason the tort should be actionable without proof of loss or harm.^[88] In application, she argues, the “highly offensive” limb has led to the tort focusing instead on protection from reputational harm or embarrassment.^[89] So, for example, in Andrews v Television New Zealand Ltd, the claim failed because the information, though private, was presented in a sympathetic manner.^[90] The real injury was that someone decided the world should see and hear the plaintiffs as they dealt with the aftermath of an accident.
• [71] Professor Moreham also argues that the “highly offensive” limb makes the tort unpredictable and erratic.^[91] She contends that whereas the criteria for assessing a reasonable expectation of privacy are tolerably clear, the “highly offensive” test is not, perhaps because it serves primarily to exclude cases that judges find unmeritorious. The cases do not articulate a principled approach. We observe that this problem is to some extent inherent in the Hosking v Runting framing of the tort. As Tipping J stated in his concurring judgment, it is not possible to separate the two limbs of the test, for the second is implicit in the first.^[92] In consequence, judges considering whether disclosure was highly offensive inevitably focus not only on the disclosure but also the reasonable expectation of privacy. As Professor Rosemary Tobin observes, however the tort is formulated “the surrounding circumstances will always be relevant, including the nature of the information, the circumstances in which the defendant came into possession of it, and also the manner of its proposed release”.^[93]
• [72] Finally, Professor Moreham argues that the “highly offensive” limb is unnecessary.^[94] She accepts that privacy torts are capable of silencing legitimate speech and deterring investigations of wrongdoing, and so need to be kept within clearly defined parameters. However, the reasonable expectation of privacy test strikes the appropriate balance between privacy and free expression because it requires that the plaintiff’s subjective expectation be objectively reasonable having regard to general societal values. The standard of objective reasonableness involves a normative enquiry into what privacy protection a plaintiff can expect the law to provide, and once this is recognised it becomes plain that the standard will not be satisfied unless the interference in question is a serious one.
• [73] There is a good deal of force in these criticisms of the tort as formulated in Hosking v Runting. However, it does not follow that it would be right to accept Mr Moss’s invitation simply to abandon the second limb, leaving the reasonable expectation of privacy to do all the work of striking the appropriate balance. Professor Tobin has sounded a note of caution:^[95]

While it is certainly true that the tort protects a dignitary interest, freedom of expression is also seen as an inherent right that is rooted in human dignity and autonomy. That being so the appropriate balance must be achieved between the two, particularly when only one of these is a right that can be found in the Bill of Rights Act.

Similar concerns underpinned the dissenting judgments of Keith J and Anderson P in Hosking v Runting.

• [74] The absence of express protection for privacy in the New Zealand Bill of Rights Act 1990 does not preclude liberalisation of the tort. Winkelmann J, as she then was, pointed in an extrajudicial address to privacy values that are found in the common law or underpin some of the express rights in the Act and might provide a conceptual framework for the law’s response to new and urgent privacy harms occasioned by the development of internet communication and services.^[96] These developments challenge privacy law, requiring that courts assess and meet community expectations of privacy and provide appropriate remedies for breach.
• [75] However, courts must proceed with care, paying close attention to countervailing rights and interests when formulating the criteria that will be used to gauge reasonable expectations of privacy. They must also recognise their institutional limitations, which dictate that law should be developed incrementally and by reference to specific facts. As we have already indicated, we do not regard this case as a suitable vehicle for the substantial reform we are being asked to undertake.
• [76] Nor do we think that justice requires we develop the tort in this case. Assuming we were to adopt the English formulation, Mr Hyndman’s claim would still fail. For the reasons given at [50]–[54] above, the claim that Mr Hyndman’s dignitary interest in his personal privacy was breached does not attain a sufficient level of seriousness in the particular circumstances of this case. We accept that the communications between Messrs Hyndman and Henderson took place in private. Further, the nature and purpose of the disclosure by Mr Walker bore no connection to the proper exercise of his duties as a liquidator. There was no question of consent and Mr Walker plainly knew that. But it must be borne in mind not only that the information in the 22 July email was not itself private — Mr Holden already had it — but also that the draft 26 July email was intended to be sent to Mr Holden and contained little if anything personal to Mr Hyndman. The emails were disclosed to very few people. In our opinion the effect of the disclosure in this case was trifling.

The Marcel principle

• [77] A different species of breach of confidence that has developed in English law warrants mention. In Marcel v Commissioner of Police of the Metropolis documents seized by police when pursuing a criminal investigation into a property development were disclosed to a third party who was making a civil claim against the same development.^[97] Marcel stands for the principle that confidential or personal information obtained compulsorily through a legal power or public duty is not to be disclosed for other private purposes.^[98] It is properly characterised as a breach of confidence tort, not a privacy tort, because it responds to the abuse of power rather than the existence of a privacy interest in the information.^[99] We note that in Henderson v Walker Thomas J accepted, relying on Marcel, that the information on the laptop and tape drive was obtained in circumstances importing an obligation of confidence.^[100] The claim failed in this case on the facts; the Judge held that a relationship of confidence existed between Mr Walker and Mr Henderson, not Mr Hyndman, and further that Mr Walker was not legally responsible for the actions of the police.^[101] We observe that the obligation of confidence arises when personal or confidential information is obtained under legal powers — here, those of a liquidator — which must be exercised for a particular purpose.^[102] However, we were not called upon to review the Judge’s findings and accordingly express no view on them.

Decision

• [78] The appeal is dismissed.
• [79] Mr Moss urged us to let costs be where they fall should the appeal fail. But the ordinary rule is that costs follow the result and we do not think it is displaced in the circumstances of this case. Mr Walker is entitled to costs for a standard appeal on a band A basis plus usual disbursements. We certify for second counsel.

Solicitors:
Canterbury Legal, Christchurch for Appellant
Luke Cunningham Clere, Wellington for Respondent

^[1] Hyndman v Walker [2019] NZHC 2188 [High Court judgment], citing Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA).

^[2] Henderson v Walker [2019] NZHC 2184.

^[3] At [41].

^[4] High Court judgment, above n 1, at [97].

^[5] At [34]–[38].

^[6] At [78] and [95].

^[7] At [85]–[89].

^[8] At [90], citing her judgment in Henderson v Walker, above n 2, at [199]–[220] and especially [207]–[217].

^[9] At [94].

^[10] At [97].

^[11] At [99].

^[12] Henderson v Walker, above n 2, at [144]–[160].

^[13] At [316]–[318].

^[14] High Court judgment, above n 1, at [84]–[85].

^[15] Henderson v Walker, above n 2, at [43]–[122].

^[16] At [238]–[240].

^[17] At [243]–[247] citing L v G [2002] NZAR 495 (DC); Brown v Attorney-General [2006] NZAR 552 (DC); Director of Human Rights Proceedings v Slater [2019] NZHRRT 13; Hammond v Credit Union Baywide [2015] NZHRRT 6, (2015) 10 HRNZ 66; Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457; Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595, [2006] QB 125; Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB); and Gulati v MGN Ltd [2015] EWCA Civ 1291, [2017] QB 149.

^[18] At [234].

^[19] A separate tort for intrusion into seclusion has also developed following C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672.

^[20] Hosking v Runting, above n 1, at [239] and [258] per Tipping J; and see Stephen Todd (ed) Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019) at 985–986.

^[21] Hosking v Runting [2003] 3 NZLR 385 (HC); and upheld by the Court of Appeal in Hosking v Runting, above n 1.

^[22] Hosking v Runting, above n 1, at [117] per Gault and Blanchard JJ. Derived from Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 (HC) at 423–424; and P v D [2000] 2 NZLR 591 (HC) at [34].

^[23] See Bradley v Wingnut Films Ltd, above n 22, at 423–424.

^[24] Hosking v Runting, above n 1, at [125]–[126] citing Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63, (2001) 208 CLR 199 at 226.

^[25] Page Keeton, Dan Dobbs and Robert Keeton Prosser and Keeton on the Law of Torts (5th ed, West Publishing, St Paul, 1984).

^[26] Hosking v Runting, above n 1, at [126].

^[27] At [125].

^[28] At [129].

^[29] At [247].

^[30] At [181].

^[31] At [207].

^[32] At [211]–[218].

^[33] At [220].

^[34] At [271].

^[35] Television New Zealand Ltd v Rogers [2007] NZSC 91, [2008] 2 NZLR 277.

^[36] At [99].

^[37] At [105].

^[38] At [136].

^[39] At [7] per Elias CJ and [151] per Anderson J.

^[40] At [24].

^[41] Citing Campbell v MGN Ltd, above n 17, at [94]–[96] per Lord Hope and at [22] per Lord Nicholls.

^[42] At [26].

^[43] Andrews v Television New Zealand Ltd [2009] 1 NZLR 220 at [66].

^[44] At [72].

^[45] At [25].

^[46] At [30].

^[47] At [69] and [71].

^[48] Brown v Attorney-General, above n 17.

^[49] At [64].

^[50] A v Hunt (Contempt) [2006] NZAR 577 at [61].

^[51] At [59].

^[52] Chatwin v APN News and Media Ltd [2014] NZHC 11 at [18(c)].

^[53] Driver v Radio New Zealand Ltd [2019] NZHC 3275 at [95] citing Murray v Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch 481 at [36].

^[54] At [112].

^[55] Peters v Bennett [2020] NZHC 761 at [82]–[86].

^[56] At [118]–[119].

^[57] At [119] and [131].

^[58] At [154]–[155].

^[59] Clague v APN News and Media Ltd [2012] NZHC 2898, [2013] NZAR 99 at [34]–[38]; Callaghan v Fairfax New Zealand Ltd HC Auckland CIV-2011-404-5605, 15 September 2011 at [19]–[20].

^[60] Chatha v Attorney-General HC Palmerston North CIV-2006-454-868, 2 May 2008 at [103]; and NR v MR [2014] NZHC 863 at [104] and [111].

^[61] For example see Television New Zealand Ltd v Rogers, above n 35; Andrews v Television New Zealand Ltd, above n 43; A v Hunt (Contempt), above n 50; and all but one claim in Driver v Radio New Zealand Ltd, above n 53.

^[62] Hyndman v Walker, above n 1, at [32].

^[63] At [99].

^[64] In Hosking v Runting, above n 1, Gault and Blanchard JJ held at [125] that the tort is aimed at “widespread publicity”.

^[65] High Court judgment, above n 1, at [99].

^[66] At [38]; and Henderson v Walker, above n 2, at [29] and [122].

^[67] Hosking v Runting, above n 1, at [126].

^[68] Campbell v MGN Ltd, above n 17.

^[69] See N A Moreham “Why is Privacy Important? Privacy, Dignity and Development of the New Zealand Breach of Privacy Tort” in Jeremy Finn and Stephen Todd (eds) Law, Liberty, Legislation: Essays in honour of John Burrows QC (LexisNexis, Wellington, 2008); and N A Moreham “Abandoning the ‘High Offensiveness’ Privacy Test” (2018) 4 CJCCL 161.

^[70] Campbell v MGN Ltd, above n 17, at [12] and [17].

^[71] At [12]. See also the comment by Nicholls LJ that “[t]he essence of the tort is better encapsulated now as misuse of private information”: at [14].

^[72] At [91], [95], [145]–[147] and [165].

^[73] At [98]. But see [165]–[166] per Lord Carswell.

^[74] At [51].

^[75] At [21].

^[76] At [92].

^[77] At [94] and [96].

^[78] At [94].

^[79] At [99].

^[80] OBG Ltd v Allan [2007] UKHL 21, [2008] AC 1 at [118] per Lord Hoffmann and [272] per Lord Walker.
^[81] At [255] per Lord Nicholls; Mosley v News Group Newspapers Ltd [2008] EWHC 2341 (QB) at [8]–[10]; and Vidal-Hall v Google Inc [2015] EWCA Civ 311, [2016] QB 1003 at [25] and [41]–[43].

^[82] Murray v Express Newspapers plc, above n 53.

^[83] At [36].

^[84] At [35] and [52].

^[85] Ambrosiadou v Coward [2011] EWCA Civ 409, [2011] 2 FLR 617 at [28] and [30]; and ZXC v Bloomberg LP [2020] EWCA 611, [2021] QB 28 at [45], citing R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414, [2010] 1 WLR 123 at [22], in a passage approved of by Lord Toulson SCJ (with whom Lord Hodge SCJ agreed) in In re JR38 [2015] UKSC 42, [2016] AC 1131 (SCNI) at [87].

^[86] R (Wood) v Commissioner of Police of the Metropolis, above n 85, at [22].

^[87] Moreham “Abandoning the ‘High Offensiveness’ Privacy Test”, above n 69, at 180–181.

^[88] Moreham “Why is Privacy Important?”, above n 69, at 240.

^[89] At 242.

^[90] Moreham “Abandoning the ‘High Offensiveness’ Privacy Test”, above n 69, at 180–181.

^[91] Moreham “Why is Privacy Important?”, above n 69, at 246–247.

^[92] Hosking v Runting, above n 1, at [256].

^[93] Stephen Penk and Rosemary Tobin (eds) Privacy Law in New Zealand (2nd ed, Thomson Reuters, Wellington, 2016) at 97.

^[94] Moreham “Abandoning the ‘High Offensiveness’ Privacy Test”, above n 69, at 186–189.

^[95] Penk and Tobin, above n 93, at 103.

^[96] Helen Winkelmann, Justice of the Court of Appeal “Sir Bruce Slane Memorial Lecture” (November 2018).

^[97] Marcel v Commissioner of Police of the Metropolis [1992] Ch 225 (Ch). An appeal was allowed on a different point.

^[98] As affirmed in R (Ingenious Media Holdings plc) v Revenue and Customs Commissioners [2016] UKSC 54, [2016] 1 WLR 4164 at [17].

^[99] See N A Moreham “Privacy, reputation and alleged wrongdoing: why police investigations should not be regarded as private” (2019) 11 JML 142; and N A Moreham “Police investigations, privacy and the Marcel principle in breach of confidence” (2020) 12 JML 1.

^[100] Henderson v Walker, above n 2, at [176]–[183].

^[101] High Court judgment, above n 1, at [84]–[89].

^[102] R (on the application of Ingenious Media Holdings plc) v Revenue and Customs Commissioners, above n 98, at [17].