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High Court of New Zealand Decisions |
Last Updated: 22 January 2018
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2004-404-3536
BETWEEN GARY ROBERT ANDREWS AND PENELOPE JOAN ANDREWS
Plaintiffs
AND TELEVISION NEW ZEALAND LIMITED
Defendant
Hearing: 14-17 August 2006
Appearances: B P Henry for plaintiffs
W Akel and N Alley for defendants
Judgment: 15 December 2006
JUDGMENT OF ALLAN J
Solicitors:
Daniel Overton & Goulding, PO Box 13 017, Onehunga
Simpson Grierson, william.akel@simpsongrierson.com
Counsel
B Henry, PO Box 4070, Shortland St,
Auckland
ANDREWS V TVNZ HC AK CIV 2004-404-3536 15 December 2006
[1] In Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, the Court of Appeal
affirmed the existence in New Zealand of a tort of invasion of privacy. Certain
of the principles
discussed there were very recently re-affirmed in
Television New Zealand Limited v Rogers CA12/06 7 August 2006. There
are two fundamental requirements for a successful claim:
[2] At [118] of the Hosking v Runting judgment Gault P and
Blanchard J said:
No Court can prescribe all the boundaries of a cause of action in a single
decision, nor would such an approach be desirable. The
cause of action will
evolve through future decisions as Courts assess the nature and impact of
particular circumstances.
[3] The present case, involving the filming and subsequent screening on
public television of the victims of a road accident,
raises issues as to the
scope and applicability of the tort in circumstances which, in a broad sense,
are likely to recur from time
to time.
Factual background
[4] The plaintiffs are husband and wife. They are now in their 40s.
There is evidence that over a period of some years each
had been prominently
involved in the commercial life of the Papakura district where they reside; so
they are relatively well known
in that area.
[5] On the evening of 21 December 2002 they attended a social function together. Each consumed a quantity of alcohol. During the evening an argument developed between them and there remained a degree of tension when they left the
function in order to drive home. While driving homewards in the southbound
lane of the Southern Motorway near Ramarama, the driver
lost control of the
vehicle, which left the roadway, passed over a fence and came to rest in a field
some considerable distance from
the carriageway. At that point the motorway is
significantly elevated above surrounding farmland. Both Mr and Mrs Andrews
profess
to have no recollection of the journey, and in particular, no memory at
all as to which of them was driving.
[6] Blood samples were subsequently obtained from each of them.
Upon analysis those samples revealed that each was
significantly over the legal
blood alcohol limit. They were both charged under the relevant blood alcohol
legislation, but ultimately
the charges were withdrawn because the
police were unable to establish which of them was the driver of the
vehicle.
[7] Fortunately, neither plaintiff was seriously injured in the
accident, although they were both admitted to hospital in the
first instance.
Mrs Andrews suffered a blow to the head and superficial scratches and bruises.
However the injury to her head
proved to be transitory in nature. Mr Andrews
was rather more significantly affected. He sustained a minimally displaced
fracture
to his neck, together with some relatively minor bruising. He was in
hospital for a day or so, but was then discharged. It was
necessary for him to
wear a collar to protect his neck injury for some three months. Subsequently
he suffered spells of dizziness
and experienced pins and needles in his limbs,
but overall it appears that he has made a full recovery.
[8] The accident was witnessed by several people who were on the motorway at the time. Two truck drivers were the first to reach the plaintiffs’ vehicle. They were followed some minutes later by police officers and then by a fire fighting team and ambulance officers. The fire fighters were accompanied by a camera operator who filmed the subsequent rescue operation in its entirety. The plaintiffs were trapped in the vehicle and it was necessary to call upon so-called “jaws of life” equipment in order to free them. About an hour elapsed between the time at which the fire crew and camerawoman arrived at the scene and the time of the departure of the plaintiffs in an ambulance.
[9] Footage derived from the camera operator’s activities was
supplemented by that obtained from a helmet camera worn
by one of the fire
fighters, and from a camera inside the cab of the fire truck.
[10] The filming was undertaken by Greenstone Pictures Limited as part of
a series commissioned by the defendant. The series
was known simply as
“Fire Fighters”. The purpose of the series was to portray the lives
and daily work of fire officers.
[11] Evidence given by witnesses for the defendant was to the effect that
the Fire
Fighters series, and this episode in particular, had multiple
aims:
b) the importance of road safety;
[12] The plaintiffs were unaware at the scene, or indeed thereafter until
the programme was screened, that they were being filmed.
The field tapes were
later edited, and coverage of the accident appeared as part of episode eight of
the Fire Fighters series,
which screened on TV1 on 28 February 2004 at 7 pm.
So a little over a year had elapsed between the date of the accident and the
date of screening. The plaintiffs received no prior indication of the
defendant’s intention to screen material relating to
the accident, and
were unaware it was being screened until they were advised of it while attending
a party at a neighbour’s
house. They then viewed the programme in the
company of a number of others, some of whom were known to the plaintiffs, and
some
not.
[13] The programme, as screened, focused to a significant degree on the work of the fire fighters attending the scene and those assisting them, but considerable footage was devoted to depicting the plaintiffs while they were trapped in their car,
primarily in respect of their interaction with rescue staff. There were
shots of Mr Andrews, whose face was largely obscured
on each occasion by an
oxygen mask. There was some coverage of Mrs Andrews as she spoke both to her
husband and to the rescue team.
Her face was the subject of pixilation in each
instance, but the extent of the pixilation was not always sufficient to obscure
the whole of her face. At times the lower part of her face was plainly
visible.
[14] There was coverage of what passed between Mr and Mrs
Andrews. Mrs Andrews in particular was naturally distressed
and there were
expressions by her of her concern and love for her husband, and exhortations to
him to “stay with her”.
Little, if anything said by Mr Andrews was
included in the programme. The plaintiffs were referred to on a number of
occasions
by their Christian names. There was no reference to the surname of
the plaintiffs and no identification of their vehicle by the
depiction of its
registration plates. There was no reference to the cause of the accident, nor
to the fact that each of the plaintiffs
had consumed a quantity of alcohol prior
to the accident.
[15] The plaintiffs were greatly distressed by the screening of the
programme. They had had no warning of it. The accident had
given rise to
tensions within the family, particularly in the relationship between the
plaintiffs themselves and in respect
of the emotional health of one of their
children. They were forced to re-live the trauma of the accident, as they
saw the
scene from an entirely different viewpoint. Moreover, all of
this occurred while they were in the company of a number of other
people, not
all of whom were known to them.
[16] The plaintiffs say they were shocked, humiliated and embarrassed by
the screening of the programme without warning. They
contended there had been
an interference with their privacy rights, and so have issued this
proceeding.
The pleadings
[17] In their statement of claim, the plaintiffs say the conversations and scenes depicted in the defendant’s television programme gave rise to a reasonable expectation of privacy. They say that the conversations in which Mrs Andrews took
part occurred while she was dazed and suffering from shock, and that she
was unaware at all material times that she was being filmed,
or that her private
conversations were to be recorded and published.
[18] The plaintiffs then plead that the broadcast was highly offensive to
them, and to an objective reasonable person. By way
of particulars of that
allegation they refer to the following matters:
9.1 the entire contents and circumstances of the conversations
as contained in the programme.
9.2 the medical condition of the plaintiffs at the time the filming
took place.
9.3 the stressful nature of the plaintiffs’ circumstances at the
time the filming took place.
9.4 the belief held at the time the filming took place on the part of the second named plaintiff that her husband was seriously injured.
9.5 the private nature of the conversations which took place.
9.6 the broadcast took place for the purpose of private gain.
9.7 neither the makers of the film recording at the scene of the
accident nor the defendant ever sought the plaintiffs’
consent to such
broadcast.
9.8 there was no public need served by the broadcast.
[19] They then allege that they have suffered damage, in that they were not notified that the programme was to be screened, that it was seen by friends and relatives who recognised them despite pixilation, and that screening occurred at a time when they were at a party with friends. They say that they have suffered substantial humiliation, pain and suffering and they claim that the defendant’s conduct is a “flagrant departure from the precepts of prudence or standards of a broadcaster”. They seek damages of $100,000, together with punitive damages of
$15,000.
[20] In its amended statement of defence, the defendant denies that the plaintiffs were identifiable to the general public in the broadcast, and pleads specifically that the scenes and conversations broadcast in the programme all occurred in a public place, or in a place in the view of the public. It denies there was any reasonable
expectation of privacy in the conversations and scenes relied upon by the
plaintiffs and says that the broadcast would not be considered
highly offensive
by an objective reasonable person. It further pleads two affirmative
defences:
a) that the broadcast related to a matter of legitimate public
concern and/or was in the public interest;
b) liability is excluded by the provisions of s 4(3) of the
Broadcasting
Act 1989 (the Act).
[21] Finally the defendant pleads that if the plaintiffs are entitled to
damages, then such damages should be limited to a sum
not exceeding $5000 each,
consistent with s 13(1)(d) of the Act.
The issues
[22] The issues which arise on the pleadings are:
a) whether the plaintiffs have established an actionable interference
with their right to privacy in the light of the criteria
discussed in Hosking
v Runting;
b) if the plaintiffs’ claim is made out, was the broadcast
nevertheless justified because it covered matters of legitimate
public
concern;
c) whether liability is excluded by the provisions of s 4(3) of the
Act;
d) whether the plaintiffs have an entitlement to an award of damages (including punitive damages) and if so the proper quantum of such damages.
Privacy expectations
[23] Hosking v Runting concerned photographs taken in
public of the young children of a television celebrity. A majority of the
Court (Keith and
Anderson JJ dissenting) ruled in favour of the existence of a
tort of interference with (or invasion of) privacy in New Zealand.
The leading
judgment (of Gault P and Blanchard JJ) summarised the elements of the cause of
action and certain of its limitations
in [125]- [128] as follows:
Publicity that is highly offensive
[125] In theory, a rights–based cause of action would be made out
by proof of breach of the right irrespective of the
seriousness of the breach.
However, it is quite unrealistic to contemplate legal liability for all
publications of all private information.
It would be absurd, for example, to
consider actionable merely informing a neighbour that one’s spouse has a
cold. By living
in communities individuals necessarily give up seclusion and
expectations of complete privacy. The concern of the law, so far as
we are
presently concerned, is with widespread publicity of very personal and
private matters. Publication in the technical
sense, for example as applies in
defamation, is not in issue.
[126] Similarly publicity, even extensive publicity, of matters which,
although private, are not really sensitive should
not give rise to
legal liability. The concern is with publicity that is truly
humiliating and distressful or otherwise
harmful to the individual concerned.
The right of action, therefore, should be only in respect of publicity
determined objectively,
by reference to its extent and nature, to be offensive
by causing real hurt or harm. In the Restatement the requirement is
“highly
offensive to a reasonable person”; the formulation expressed
in Australia by Gleeson CJ (drawn from the United States cases)
and referred to
by the English Court of Appeal in Campbell imbues the reasonable person
with “ordinary sensibilities”. In a similar vein the Privacy Act, in
s 66 defining interference
with the privacy of an individual, requires
“significant” humiliation, loss of dignity or injury to
feelings.
[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.
[128] We do not see personal injury or economic loss as necessary
elements of the action. The harm to be protected against
is in the nature of
humiliation and distress.
[24] In a separate judgment, Tipping J, while in support of the existence of a remedy in tort, was nevertheless inclined to pitch the required level of offence rather lower than Gault P and Blanchard J. At [255]-[256] he said:
[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.
[25] It is to be noted that at [256] Tipping J expressed the view that in
most cases no expectation of privacy is likely to arise
unless publication would
cause a high degree of offence, and thus of harm to a reasonable person. To
some degree, the Judge thought
the two elements might be regarded as likely to
coalesce. But it is important to bear in mind as a matter of analysis at a
practical
level that the “highly offensive” test relates to
publicity. It is not part of the test of whether information is private.
The
Court does not reach the stage of considering the “highly offensive”
test unless and until it has concluded
that what has been disclosed was
private information: see the judgment of O’Regan and Panckhurst JJ in
Television New Zealand Ltd v Rogers at [68].
[26] The first inquiry is therefore whether facts exist in respect of which there is a reasonable expectation of privacy. By way of aside, it is to be observed that Tipping J at [257] of Hosking v Runting uses the expression “information or material” rather than the simple word “facts”. It might be thought that such a phrase describes rather more accurately what is involved in this case (as to the distinctions see the useful article by N A Moreham (2005) 121 LQR 628 at 648-656).
[27] The test for a reasonable expectation of privacy is a single test,
and is not to be subdivided into two parts: whether there
are private facts
and, if so, whether they are of such a character as to give rise to a
reasonable expectation of privacy:
Television New Zealand Limited v Rogers
at [41].
[28] As noted in the judgment of Gault P and Blanchard J in Hosking v
Runting at [119], there is no simple test for what constitutes circumstances
giving rise to a reasonable expectation of privacy, although
it may be possible
to draw an analogy with the test employed in breach of confidence cases –
whether the information has about
it the necessary quality of confidence. By
definition, private facts are those not known to the world at large, but they
may be
known to some people, or even a particular class.
[29] It is common ground in this case that no bright line is to be drawn
between what is private and what is not. The
following passage from
Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR
199, was cited with approval in Hosking v Runting at [119]:
[42] 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 measures 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.
[30] As a matter of principle the question of whether there is a reasonable expectation of privacy is to be assessed at the time of publication. That is because the interference complained of arises by reason of the publicity. That is not to say that circumstances existing when the facts first arose will always be irrelevant. But the passage of time and changed circumstances may well impact upon reasonable expectations held in relation to the facts: Television New Zealand Limited v Rogers at [52]-[54].
[31] As a general rule something which occurs in a public place is
unlikely to give rise to a reasonable expectation of privacy:
Hosking v
Runting at [164]. In that case, photographs of the plaintiff’s
children taken on the street in Newmarket, Auckland, were held to do
no more
than portray what could have been observed by any member of the public in
Newmarket on the particular day. But there are
exceptions to the general rule.
It will not always be a complete answer to a claim to a reasonable expectation
of privacy to show
that the relevant facts or information arose from something
occurring in public. In exceptional cases a person might be entitled
to
maintain a claim to protection from additional publicity, although the relevant
circumstances arose in public, and were observed,
or were observable, by those
in the immediate vicinity.
[32] Situations in which reasonable expectations of privacy might arise
for matters occurring in public have been considered in
two recent European
cases. Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 concerned the activities of Ms
Naomi Campbell, a celebrity supermodel. Her status is rather memorably
described
in the opening words of the judgment of Lord Nicholls of Birkenhead
at [1]:
My Lords, Naomi Campbell is a celebrated fashion model. Hers is a household
name, nationally and internationally. Her face is
instantly recognisable.
Whatever she does and wherever she goes is news.
[33] A publication of the respondent, the Mirror newspaper, had for some considerable period avidly followed Ms Campbell’s career. There had been rumours that she took drugs. She volunteered information to the media claiming, untruthfully as it turned out, that she did not take drugs. The respondent secured photographs of Ms Campbell in the street outside a drug therapy clinic. The learned Law Lords were all agreed that it was legitimate to publish a story to the effect that Ms Campbell had deceived the public about her drug-taking, but a majority held that the publication of the information in its totality went beyond disclosure which was necessary to add credibility to that story. Although the photographs were taken in a public place, the context in which they were used, and the manner in which they were linked to the articles, added to the overall intrusion into Ms Campbell’s private life. Her right to privacy was held to outweigh the newspaper’s rights to freedom of expression.
[34] The majority took into account the reasons for Ms Campbell’s
visit to the clinic, related as they were to the condition
of her physical and
mental health and the treatment she was receiving for it. They held that those
considerations were akin to private
and confidential information contained in
medical records, and their publication required specific justification which the
newspaper
was not able to provide.
[35] On the other hand, Lord Nicholls and Lord Hoffman
held against Ms Campbell. Their approach is, I think,
neatly illustrated by
the following passage from the judgment of Lord Hoffman at [66]. Speaking of Ms
Campbell he said:
She has given them stories to sell their papers and they have given her
publicity to promote her career. This does not deprive Ms
Campbell of the right
to privacy in respect of areas of her life which she has not chosen to make
public. But I think it means that
when a newspaper publishes what is in
substance a legitimate story, she cannot insist upon too great a nicety of
judgment in the
circumstantial detail with which the story is
presented.
[36] The ultimate outcome of that case turned upon an
assessment of reasonableness. The learned Law Lords
differed in making their
assessments. That reflects the difficulty inherent in making a value judgment
in a marginal case.
[37] In considering the English cases, it is to be remembered that
the tort of invasion of privacy is not recognised there.
Rather, a claimant
must rely upon an alleged breach of confidence. But the English test, although
differently underpinned, nevertheless
involves, as here, a consideration
both of those facts which are contended to give rise to a reasonable
expectation of
privacy, and of the extent to which a reasonable person of
ordinary sensibilities would find disclosure offensive. For present purposes,
the importance of Campbell v MGN is that it provides an illustration of
a case in which facts arising in public were nevertheless held to justify
protection.
As to that, the learned Law Lords recognised that
reasonable expectations of privacy will not ordinarily arise in respect
of
things which occurred in public. But as Lord Hope of Craighead pointed out (at
[122]):
... private life considerations may arise once any systematic or permanent record comes into existence of such material from the public domain.
[38] The second case is Peck v United Kingdom [2003] ECHR 44; (2003) 13 BHRC 669, a judgment of the European Court of Human Rights (4th Section). The judgment in Peck preceded that in Campbell by a little over a year. The applicant, who was suffering from depression, had attempted suicide by cutting his wrists with a knife in a town High Street, late at night. He was unaware that a local authority closed circuit television (CCTV) camera, installed to facilitate the prevention of crime, was filming
his movements. The CCTV operator notified the police and observed their
intervention. Subsequently the authority released to regional
and national
media the CCTV footage capturing the immediate aftermath of the episode, with
the aim of advertising the effectiveness
of the CCTV system in the prevention
and detection of crime. Still photographs taken from the footage were published
in newspapers,
and extracts were broadcast on television without the
applicant’s knowledge or consent. In some instances the applicant’s
face was masked, but he remained easily recognisable to anyone who knew
him.
[39] The Court held that although the incident took place in a public
street, the authority’s disclosure of the footage
to the media caused it
to be viewed to a degree surpassing that which the applicant could
possibly have foreseen. Thus,
the disclosure by the authority of the
relevant footage constituted a serious interference with the applicant’s
right to respect
for his private life. Moreover, although the state had a
strong interest in detecting and preventing crime, and in those respects
the
CCTV system played an important role rendered more effective and
successful through advertising the system and its benefits,
the authority could
have achieved its objectives by obtaining the applicant’s consent prior to
disclosure, or properly masking,
or taking appropriate steps to ensure such
masking, of the applicant’s identity. The Court found that there had
been a
violation of Article 8 of the Convention for the Protection of Human
Rights and Fundamental Freedoms, 1950.
[40] It is necessary to exercise some care when analysing European cases in this area. Privacy is expressly protected by the European Convention on Human Rights, and ranks equally alongside the right to freedom of expression. The latter freedom is enshrined in the New Zealand Bill of Rights Act 1990, but privacy is not.
[41] In the United States, a person who is in a public place cannot
ordinarily claim a right to privacy. In Hosking v Runting at [164],
Gault P and Blanchard J drew together the principles in other jurisdictions in
this way:
There is a considerable line of cases in the United States establishing that
generally there is no right to privacy when a person
is photographed on a public
street. Cases such as Peck and perhaps Campbell qualify this to some extent, so
that in exceptional cases
a person might be entitled to restrain additional
publicity being given to the fact that they were present on the street in
particular
circumstances.
Plaintiff culpability
[42] On occasion, it may be appropriate in assessing the reasonableness
of an expectation of privacy, to take into account the
culpability or
blameworthiness of the plaintiff. In the passage from Australian
Broadcasting Ltd v Lenah Game Meats cited earlier in this judgment, the
Court said that “contemporary standards of morals and behaviour”
would need to be
taken into account in assessing whether certain types of
activity were meant to be unobserved, and therefore private in
character.
[43] In England, the Court will not protect facts or information which,
to use a term ordinarily associated with breach of confidence
cases, evidence
iniquity: see for a local example European Pacific Banking
Corporation v Television New Zealand Ltd [1994] 3 NZLR 43.
[44] In Campbell, Lord Nicholls at [24] agreed that Ms
Campbell’s counsel was right to concede that she could have no reasonable
expectation of
privacy in the fact that she continued to take drugs, because she
had previously claimed in public that she was drug-free. Lord
Nicholls agreed
with the observation made in the Court of Appeal that:
... where a public figure chooses to present a false image and to make untrue
pronouncements about his or her life, the press
will normally be entitled to
put the record straight.
[45] A striking example of a case in which a plaintiff was refused a remedy was Theakston v MGN Ltd [2002] EWHC 137; [2002] EMLR 22, where a prominent television personality had been recognised by the media when entering a brothel. Ouseley J said that
information about sexual activity of that sort would not be
protected from publication, in circumstances where the plaintiff
had courted
publicity in the past, and had fostered an image founded upon his physical and
sexual attractiveness to women. On the
other hand, evidence of the
plaintiff’s sexual activity in the context of a more enduring personal
relationship might have
been entitled to protection. That approach was affirmed
by the Court of Appeal in A v B [2002] EWCA Civ 337; [2003] QB 195.
[46] It is difficult, and indeed undesirable, to lay down any
general principle governing the extent to which personal culpability
might
impinge upon reasonable expectations of privacy. This tort is in its
early stages of development. The character
and seriousness of
blameworthy conduct, or iniquity, will vary significantly from case to
case. The effect of
such conduct on a reasonable expectation of privacy will
therefore also vary.
[47] I accept however, that an expectation of privacy, otherwise
reasonable, may in certain circumstances be lost by reason of
culpability on the
part of the plaintiff. It is to be observed that the same consideration might
well arise in a given case in the
course of an assessment of whether publication
of private facts is highly offensive, and further, in relation to the assessment
of
a defence of legitimate public concern.
Highly offensive
[48] I turn now to the second limb of the inquiry, namely whether, if
there are private facts, publication would be highly offensive
to the reasonable
person in the shoes of the complainant.
[49] Mr Akel submitted that the burden faced by a plaintiff is a high one. I agree. The test was explained in the joint judgment of Gault P and Blanchard J in Hosking v Runting at [125]-[127]. The Court must keep clearly in mind the role of the “reasonable person” in the overall assessment. The mind that must be considered is not that of a general reader, but of the person who is affected by the publicity, assuming that person to be a reasonable person of ordinary sensibilities. In TVNZ Ltd v Rogers O’Regan and Panckhurt JJ said:
[66] In Campbell v MGN Limited [2004] UKHL 22; [2004] 2 AC 457 (HL) Lord Hope of
Craighead said at [99]:
The mind that has to be examined is that, not of the reader in
general, but of the person who is affected by the publicity.
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.
This must be so. The present case well demonstrates the point.
[67] The ordinary viewer would perhaps be curious about and want to see
the videotape. But, placed in Mr Rogers’ shoes,
and asked whether they
would then consider disclosure of the videotape highly offensive, the answer may
well be different. The
value which underpins the tort is personal
privacy. Its gravamen is publicity which is truly humiliating and distressful
or
otherwise harmful to the individual concerned: Hosking v Runting at
[126]. It follows that whether disclosure would be highly offensive must be
tested from the perspective of that person,
but subject to an
objective overlay. The fragile sensibility of the claimant cannot
prevail, so a reasonable person
test is introduced to that extent.
[50] In a given case, indeed in most cases, it may be that a Court,
having satisfied itself that a plaintiff is a person of ordinary
sensibilities,
can proceed without resort to a fictitious “reasonable person”. But
that will not always be so.
[51] It is to be observed also that there may be instances where the
disclosure of otherwise relatively inoffensive facts may
become offensive by
reason of the extent and tone of a publication. So the manner of disclosure is
a relevant consideration. O’Regan
and Panckhurt JJ said in TVNZ Ltd v
Rogers:
[68] In addition, the proposed manner of disclosure is a relevant
consideration. As this Court observed in R v Mahanga [2000] NZCA 354; [2001] 1 NZLR 641
at [41], public disclosure in a controlled environment like a courtroom may not
be offensive, but transmission of excerpts of the videotape
on national
television may be.
Identification
[52] Identification was not in issue in either Hosking v Runting or TVNZ Ltd v Rogers. At least in most circumstances, in order to make out a claim, a plaintiff will need to establish that he or she has been identified in the publication, either directly or by implication.
[53] In Bradley v Wingnut Films [1993] 1 NZLR 415, Gallen
J upheld the existence in New Zealand of a tort of invasion of privacy
involving public disclosure
of private facts, but ruled that the
disclosure, to be actionable, must be highly offensive and objectionable
to a reasonable
person of ordinary sensibility. That was a case in which the
plaintiffs complained that a relative’s tombstone was depicted
in a
satiric film set in part in a cemetery, and containing a significant degree of
gore and violence. The tombstone was never shown
in its entirety. It appeared
in the film for a total of 14 seconds only, and it was not possible to read any
writing on the tombstone.
[54] In consequence, the tombstone could not be identified by viewers.
Moreover, there was nothing to connect the action in the
film with the
tombstone. Publication could not therefore be highly offensive. The action
failed.
[55] The Broadcasting Standards Authority has developed
certain privacy principles which it applies in considering
complaints made
under the Broadcasting Act. The first of those principles is materially the
same as the principle developed in Hosking v Runting. It reads:
It is inconsistent with an individual’s privacy to allow the public
disclosure of private facts, where the disclosure is highly
offensive to an
objective reasonable person.
[56] The Authority requires that a complainant be able to establish that he or she is identifiable beyond his or her immediate circle, before a privacy complaint may be upheld. In Television New Zealand Ltd v Broadcasting Authority HC WN CIV
2004-485-1299 and 1300, 13 December 2004, Miller J said:
[7] The Authority held that its first task when determining a
complaint when a broadcast involves a breach of privacy is to
decide whether
the complainant is identifiable from the broadcast. The complainant must be
identifiable beyond immediate family
and close acquaintances who may
reasonably be expected to be aware of the activities for which the complaint has
received publicity.
[57] That case was an appeal from the Broadcasting Standards Authority. The Court therefore applied the privacy principles developed by that Authority. The plaintiff had to show that she was identifiable to those who knew her, but did not
know of the facts. In that particular case she was held to have been so
identifiable, by reason of her voice, the visual depiction
of her hands and
torso which showed distinctive jewellery, and evidence that others had
identified her. There was also reference
to her occupation, which was revealed
in the relevant footage; only two people held that particular role in the
organisation concerned.
[58] The only other New Zealand case going directly to identification, to
which I have been referred, is the District Court decision
in L v G
[2002] DCR 234. That case is succinctly summarised and commented upon at
[84] of the judgment of Gault P and Blanchard J in Hosking v Runting as
follows:
[84] Recently in L v G [2002] DCR 234 damages were awarded for
breach of privacy following a substantive trial in the District Court at
Christchurch. Ms
L, a prostitute, had a sexual relationship with Mr G, her
client. Mr G took a number of sexually explicit photographs of Ms L, and
had one
of them published without her consent in an adult magazine. Ms L could not be
identified in the photograph, but Judge
Abbott had no hesitation in
concluding at p 246 that breach of privacy is an actionable tort in New Zealand,
and that Mr G’s
actions had destroyed her “personal shield of
privacy”. It may be that this case would have been better dealt with
as a
breach of confidence claim; cf Theakston v MGN [2002] EWHC 137; [2002] EMLR
22.
[59] In the circumstances, the judgment in L v G is of little
assistance.
[60] In cases such as the present, it seems that plaintiffs
will ordinarily be concerned about being identified in
the context of the
facts of a particular case to those who know them but do not know the facts.
Identification to those who already
know the facts will, in general, be of
little moment. Identification to the world at large, which does not know the
plaintiff,
will often likewise be of limited concern although cases will no
doubt arise in which a plaintiff becomes known to the world at large
simply by
reason of the publicity. But publication to those who know the plaintiff, but
not the facts, is likely in many instances
to be central to a plaintiff’s
claim.
Private facts?
[61] This accident occurred in public. The plaintiffs’ vehicle
left the Southern
Motorway and came to rest in a field some distance from the motorway but clearly
visible from it. Four fire tenders attended the scene. There were also
about 20 emergency services personnel, including representatives
of the Fire
Service, the Police, and the Ambulance Service. Members of the public were
also present. Indeed, the first two
people to reach the wrecked vehicle were
other drivers who had seen the accident.
[62] Commonly it will be the case that road accident victims are the
subject of treatment, attention and advice from a range of
people, including
both those whose job it is to attend at accident scenes, and those members of
the public who happen to be in the
vicinity. In general terms it can be said
there will be no right to privacy in the fact of the accident, and the
circumstances surrounding
it. Nor can there be any legitimate complaint about
the fact that Mrs Andrews’ conversations with her husband were
overheard by those attending the couple.
[63] In tacit acknowledgement of that consideration the plaintiffs do
not pitch their claim at that level. Mrs Andrews agreed
that she had no
difficulty at all about the fact that what she said at the accident scene was
heard by those in attendance. Likewise,
there could be no real objection to
filming, or the taking of still photographs, of an accident scene in general, if
it occurs on
a public road. Such an accident is a public event.
[64] But the facts of this case are readily distinguishable from,
for example, limited news footage of an accident scene
which might, for a
matter of seconds, depict wrecked vehicles, and even injured occupants. Here,
the camera operator filmed the
area around the car continuously for a period of
about an hour, so catching much of what passed between those present. Mr Akel
submitted
that nevertheless, there was no disclosure in the programme, as
screened, of information about the plaintiffs that was sufficiently
private to
be actionable.
[65] I do not agree. Mrs Andrews asked where she was, asked her husband and others whether he was “ok”, told her husband that she loved him, told him she did not want to leave him and as she was removed from the vehicle, made a light hearted reference to her attempts to diet. Mr Andrews indicated that he had a sore back and neck. In my view, most of these communications were private. Those between the
plaintiffs were of an intimate character and of an altogether more personal
nature than the information with which Hosking v Runting was concerned.
Although the plaintiffs would have been aware that they would be overheard by
those around them, they had a legitimate
expectation that there would be no
additional publicity. Neither was aware that they were being filmed throughout
from close range.
I do not accept, as Mr Akel submitted, that the footage of
the plaintiffs went no further than observing them at the scene. It
went much
further than that. The length of the screened footage combined with the
accumulation of depicted intimate communications,
serves to distinguish the
privacy expectations in this case from those in which the images portrayed and
the information conveyed
can be characterised as part and parcel of general news
footage.
[66] In the circumstances of this case, I consider the plaintiffs were
entitled reasonably to expect that their conversation would
not be heard beyond
those within earshot.
Was the publication offensive?
[67] As Tipping J noted in Hosking v Runting there may be cases in
which a reasonable expectation of privacy, and a high degree of offence, will
amount to one and the same thing.
Indeed, such cases may well be in the
majority. But in my view this is not such a case. Although by reason of the
intimate and
highly personal character of what passed between them, the
plaintiffs had a reasonable expectation of privacy, they have not, in
my
opinion, made out the second limb of the Hosking v Runting test. There
was no reference whatever in the programme to the precise cause of the accident,
and no mention of the fact that the
driver of the vehicle was intoxicated. Mr
Andrews accepted that there was nothing in the programme which showed him in a
bad light.
In cross-examination he was unable to point to anything in the
programme which he regarded as humiliating or embarrassing. Indeed,
his stance
was that Mrs Andrews was the primary target of the programme, and it was she who
felt aggrieved.
[68] But Mrs Andrews was equally unable to identify anything specific in the broadcast which she claimed to be offensive. She accepted that she was portrayed as
a caring person, very much concerned about her husband’s wellbeing.
She acknowledged that her comment to the effect that she
was trying to diet as
she was being lifted from the car, depicted her as someone who was coping well
by making light of the situation.
She further acknowledged that nothing she
said to her husband could be regarded as humiliating or embarrassing to either
of them.
[69] The fact that nothing inherently embarrassing was said by one to the
other, or by one of them to those in attendance, does
not lead inexorably to the
conclusion that disclosure was not humiliating or distressful. But as the
evidence unfolded,
it emerged that it was not the intrusion on the
plaintiffs’ privacy which lay at the heart of the proceeding, but rather
the
plaintiffs’ chagrin and annoyance at not being advised they were
being filmed at close range, either at the time or later.
Even more
importantly, they were given no prior notice of the date of the broadcast and
their role in it. By reason of this latter
omission, the plaintiffs found
themselves viewing the programme without prior warning in the company of a
significant number of people,
some of whom knew them but did not know of the
circumstances of the accident.
[70] A failure to obtain consent prior to publication is not an
ingredient of the tort of breach of privacy. Consent and notification
issues
fall within the jurisdiction of the Broadcasting Standards Authority, but no
complaint has ever been made by the plaintiffs
to that body. There was evidence
from Mr Manson (of TVNZ) as to the protocols under Broadcasting Standards
Authority principles
for obtaining appropriate consents. For example,
consent is required from parents where a child is to be shown, and consent
is
sought from key participants if the focus of a story is upon them and their
activities. But consent is not ordinarily sought
where filming takes place in
public view, particularly if those involved are not identifiable to the general
public.
[71] I accept Mr Akel’s submission that, in the circumstances of this case, it is not possible to conclude that a reasonable person in the shoes of the plaintiffs would consider the publication of the conversations at the accident scene to be highly offensive, given that neither plaintiff did so. As Gault P and Blanchard J said in their judgment in Hosking v Runting, the concern is with publicity that is truly
humiliating and distressful, and not with publicity, even extensive
publicity, of matters which, although private, are not really
sensitive.
[72] I hold accordingly, that the plaintiffs have been unable to satisfy
the “highly offensive” test. It follows that
the proceeding must
fail.
[73] However, in deference to the detailed arguments advanced by
counsel, I
propose to touch briefly on one or two further matters.
Were the plaintiffs identifiable?
[74] Mr Akel submitted that the plaintiffs must fail because
they were not identifiable to the public at large. He
pointed out that they
were referred to throughout the programme only by their first names, and
when in full view, Mrs
Andrews’ face was pixilated.
[75] I would not have held against the plaintiffs on the ground that they
were not identifiable. It is correct of course, that
the plaintiffs were not
known to the world at large, and in my view pixilation was sufficient to
preclude subsequent recognition
of the plaintiffs by members of the general
public. It is equally correct that the plaintiffs may have been
identified
by close friends and family, who would have been likely to have known
about the accident and the surrounding circumstances, so nothing
significantly
new and personal would be disclosed to them.
[76] But that overlooks a further group: those who knew the plaintiffs but were not aware of the accident, or at least of the circumstances of the accident. During the programme, the use of Christian names (Gary and Penny) is likely to have alerted a number of those persons. Moreover, having observed Mrs Andrews give evidence for some time, I am not satisfied that the extent of the pixilation was sufficient to prevent her from being identified by those acquainted with her.
Involuntary participants?
[77] Mr Akel submitted that the plaintiffs had brought the
publicity upon themselves. This was not a case of persons
lawfully going about
their own business, and becoming the innocent victims of another driver’s
negligence, he argued. Both
plaintiffs were well over the legal alcohol limit.
The driver should not have driven; the other should have prevented the driver
from doing so. Mr Akel submitted they were the authors of their own misfortune,
and ought not to have been able to claim they should
not have been
filmed.
[78] I would not have upheld that argument. This emergency scene was
not selected because it was the site of the commission
of a criminal offence, or
because the makers of the programme were engaged in filming those
involved in the detection
of crime. Rather, the focus of the makers of the
series was upon fire fighting staff, and the purpose in filming the accident
scene
was to illustrate the work of fire fighters. At least primarily, the
focus was not upon the road toll, or the perils of drinking
and driving. The
plaintiffs were not, in my view, disqualified from maintaining this proceeding
simply by reason of the fact that
they had been consuming alcohol before
driving.
[79] It must be emphasised that an argument based upon plaintiff
culpability raises quite different issues from those relevant
to the defence of
legitimate public concern, a matter to which I now turn.
Legitimate public concern
[80] In Hosking v Runting the Court of Appeal recognised the
availability in appropriate cases of a defence of legitimate public concern.
The applicability
of the defence will depend upon the outcome of a balancing
exercise described in that case by Gault P and Blanchard J at [132]:
The importance of the value of the freedom of expression therefore will be related to the extent of legitimate public concern in the information publicised. Phillipson refers to proportionality which captures the interrelationship between the competing values. That this may draw the
Courts into determinations of what should or should not be published must be
accepted. Such judgments are made with reference
to indecent
publications and suppression orders and are part of the judicial function. It is
not a matter of Judges being arbiters
of taste, but of requiring the exercise of
judgment in balancing the rights of litigants.
[81] The word “concern” is deliberately used, in order to
distinguish between matters that are merely of general
interest or curiosity to
the public and matters which are “properly within the public
interest”. A matter which is simply
of general interest will not be
enough to outweigh a substantial breach of privacy: Hosking v Runting at
[133]-[134].
[82] In assessing an asserted defence of legitimate public concern, the
Court will ordinarily permit a degree of journalistic
latitude, so as to avoid
robbing a story of its attendant detail, which adds colour and conviction. In
TVNZ Ltd v Rogers William Young P said at [128]:
I agree that the underlying issues can be debated without the videotape being
shown on national television. But experience shows
that arguments are
usually more easily understood where they are contextualised. An esoteric
argument ... becomes far more accessible
to the public if the implications can
be assessed by reference to the concrete facts of a particular case.
[83] To the same effect is the dissenting judgment of Lord Nicholls in
Campbell v
MGN.
[84] The extent of the invasion of privacy will be an important
factor when conducting the balancing exercise mandated
by Hosking v
Runting. The greater the invasion of privacy, the greater must be the level
of public concern to amount to a defence: Tipping J in Hosking v Runting
at [257]. But if the invasion of privacy is less serious, then the degree
of legitimate public concern necessary to establish the
defence will likewise
fall towards the lower end of the scale: O’Regan and Panckhurst JJ in
TVNZ Ltd v Rogers at [86].
[85] An illustration of the application of the defence in California is provided by Shulman & Ors v Group W Productions Inc & Ors 955 P.2d 469 (Cal.1998), a decision of the Supreme Court of California. That case also involved a road accident, but the circumstances were altogether more serious than here. A woman injured in a road accident was left a paraplegic. She was filmed at the scene and
while receiving treatment in a rescue helicopter. By reason of the position
of the vehicle when it came to rest, she was unlikely
to have been seen by those
on the nearby freeway. A nurse who attended the plaintiff at the scene wore a
wireless microphone that
picked up conversations with the plaintiff and
other rescue personnel. The plaintiff was shown several times, either by
brief
shots of a limb or torso, or with her features blocked by others or
obscured by an oxygen mask. Several times she was
heard speaking. For
example, she was heard to say “This is terrible” and “I just
want to die”. Reference
was made only to her first name. Footage was
included of the nurse speaking into a radio microphone and transmitting certain
of
the plaintiff’s vital medical signs, including statements that she
could not move her feet and had no sensation. The footage
obtained was
screened on an episode of “On Scene: Emergency
Response”.
[86] The Supreme Court held that where footage of a person (not being a
public figure), who has become involuntarily involved
in an event or activity of
legitimate public concern, is broadcast, a defence of legitimate public concern
will be made out only
where a logical nexus exists between the role of the
complainant and the matter of legitimate public concern. The contents of the
publication or broadcast will be protected only if they have some substantial
relevance to that matter. The public’s right
to know is balanced against
the plaintiff’s privacy interest, by drawing a protective line at the
point at which the material
revealed ceases to have any substantial connection
to the subject matter of the newsworthy report.
[87] The Court went on to say that, in some instances, while a particular
event may be newsworthy, identification of the plaintiff
as the person involved,
or use of the plaintiff’s identifiable image, adds nothing of significance
to the story. But the fact
that the broadcast could have been edited to exclude
some of the plaintiff’s words and images, will not be determinative.
Nor
is the possibility that a Court might find a differently edited broadcast more
to its taste, or even more interesting. The Court
does not sit as a
censor.
[88] This last comment echoes the observation of Cooke P in Auckland Area Health Board v Television New Zealand Ltd [1992] 3 NZLR 406 at 407, to the effect that:
...It is not part of the function of the Court to act as a
censor.
See also the comments of Elias CJ in Lewis v Wilson & Horton Ltd
[2000] 3 NZLR
546 at [68].
[89] Ultimately the Court in Shulman decided that the degree of
detail shown was not only relevant, but essential to the narrative. The rescue
and medical treatment of
accident victims was said to be of legitimate
concern to much of the public, involving as it does a critical service
that
any member of the public may some day need. The focus of the piece was the
challenges facing emergency workers dealing with
serious accidents. The images
did not constitute morbid and sensational prying into private lives for its own
sake: the intrusiveness
was not disproportionate to its relevance.
[90] Shulman is a useful illustration, albeit in a
different jurisdiction, of a balancing exercise conducted in the context of a
serious
road accident case.
[91] Had it been necessary, I would have upheld the defendant’s
invocation of the defence of legitimate public concern.
The television series,
while providing a certain level of entertainment, nevertheless had a serious
underlying purpose. The entertainment
aspect is not to be taken as somehow
cancelling out that purpose.
[92] The programme was not primarily about road safety. Its focus was
on the lives of fire fighters and their work, but there
is an undoubted public
cost to road accidents, and the impact of such accidents on rescue teams is
something that attracts a significant
level of public concern. The
detail of the crash scene, including conversations between participants,
provided a necessary
degree of versimilitude. The fact that the defendant might
have achieved its objectives without identifying the plaintiffs does not
preclude the defendant from advancing the defence.
[93] Had I held that there was an actionable invasion of privacy here, then it must have fallen towards the lower end of the scale. Accordingly, the degree of public concern needed to maintain the defence would not be high.
[94] In the course of the balancing exercise I would have taken into
account such considerations as the fact that only first names
were used
throughout the programme, the omission of any reference to drink/driving issues,
the fact that the car itself was not identifiable,
the significant degree
(albeit incomplete) of pixilation, and the generally low-key and sensitive
treatment of the plaintiffs.
Broadcasting Standards Authority decisions
[95] In the course of argument the defendant made extensive
reference to a number of decisions of the Broadcasting
Standards Authority,
issued in the context of certain privacy principles developed by the Authority.
Those principles offer a remedy
somewhat wider than the tort of privacy affords.
The Authority’s decisions relating to publicity given to motor vehicle
accidents
tend not to consider complaints as involving the public disclosure of
private facts. Rather, they are regarded as constituting
instances of
intrusion into solitude and seclusion, grief and distress, or unfairness. In
the cases to which the Court was referred,
the Authority did not in most cases
uphold the complaint, usually by reason of the public interest element (the
footage being neither
lingering nor gratuitous). In some instances the fact
that the complainant could not be identified was relevant.
[96] It is not necessary to say anything more about the decisions
themselves, save to note, as did the Court of Appeal in Hosking v Runting
at [85]-[86] that the Broadcasting Standards Authority, an expert body
with great experience in media issues, is able to offer useful
guidance in this
area.
Section 4: Broadcasting Act 1989
[97] Section 4 of the Broadcasting Act 1989 provides:
Responsibility of broadcasters for programme standards
(1) Every broadcaster is responsible for maintaining in its programmes and their presentation, standards which are consistent with—
(a) The observance of good taste and decency; and
(b) The maintenance of law and order; and
(c) The privacy of the individual; and
(d) The principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest; and
(e) Any approved code of broadcasting practice applying to the
programmes.
(2) Where, in respect of any film within the meaning of the Films, Videos, and
Publications Classification Act 1993,—
(a) There is in force under that Act a decision classifying that film as objectionable; or
(b) There is in force under that Act a decision classifying that film as if certain excisions had been made,—
no broadcaster,—
(c) In the case of a film to which paragraph (a) of this subsection
applies, shall broadcast that film or any part of that film; or
(d) In the case of a film to which paragraph (b) of this subsection applies, shall broadcast the film or any part of the film, if the film or, as the case may be, that part includes any part of the film required to be excised,—
except with the consent of the Chief Censor of Film and Literature
and subject to any conditions subject to which the Chief Censor has given the consent.
(3) No broadcaster shall be under any civil liability in respect of any
failure to comply with any of the provisions of this section.
[98] Mr Akel submitted that by virtue of s 4(3), no cause of action for breach of privacy should be available where the plaintiff could have made a complaint about breach of one or more of the Authority’s broadcasting standards. Given that I have already held that this proceeding must fail, it is unnecessary for me to discuss that argument in any depth. But, if the argument is that where a claim might be made to the Authority, it ought not also to lie in tort, it is not immediately attractive. Section
4 is (necessarily) silent in respect of the tort of invasion of privacy. In
its terms therefore, the section does not operate to
prohibit the bringing of a
proceeding in tort. Moreover, a strong case in tort concerning a broadcast
falling within s 4 will in
many (if not most) cases also constitute a breach of
a provision in an approved code of broadcasting practice. If the defendant
is
right, then the most meritorious claims will fail. Additionally, there is no
logic in a state of affairs which would leave a
plaintiff able to sue for breach
of privacy occurring in print, but not by way of broadcast.
[99] On the other hand, if Mr Akel’s argument is simply intended to ensure that the bar is set at a relatively high level, because there are other avenues of redress for those less seriously affected, the majority judgments in Hosking v Runting clearly
articulate the heavy burden borne by a plaintiff in this area of the law. I
say no more on the point. The issue will be for determination
(if ever) by
another Court at another time.
Result
[100] I have held that, although the plaintiffs have established that the
defendant has published information in which they had
a reasonable expectation
of privacy, such publication would not be highly offensive to a reasonable
person in the shoes of the plaintiffs.
The claim therefore fails and the
proceeding is dismissed.
[101] The defendant is entitled to costs. Counsel may file memoranda if
they are unable to agree.
C J Allan J
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