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Horrell v Banyan Pacific Capital Ltd [2023] NZHRRT 35 (31 October 2023)

Last Updated: 31 October 2023

(1) ORDER PROHIBITING PUBLICATION OF THE NAMES, ADDRESSES, OR OTHER DETAILS WHICH MIGHT LEAD TO THE IDENTIFICATION OF CANCER SOCIETY CLIENTS OR THEIR FAMILY MEMBERS, OTHER THAN PLAINTIFF WHOSE ADDRESS ONLY IS NOT TO BE PUBLISHED

(2) ORDER PROHIBITING PUBLICATION OF THE NAMES, ADDRESSES, OR OTHER DETAILS WHICH MIGHT LEAD TO THE IDENTIFICATION OF NATURALWEAR CLIENTS

(3) ORDER PREVENTING SEARCH OF THE TRIBUNAL FILE WITHOUT LEAVE OF THE CHAIRPERSON OR TRIBUNAL

IN THE HUMAN RIGHTS REVIEW TRIBUNAL [2023] NZHRRT 35 I TE TARAIPIUNARA MANA TANGATA

2023_3500.png

Reference No. HRRT 030/2019

UNDER THE PRIVACY ACT 2020

BETWEEN CHERYL CHRISTINE HORRELL PLAINTIFF

AND BANYAN PACIFIC CAPITAL LIMITED TRADING AS NATURALWEAR

FIRST DEFENDANT

AND NWSI LIMITED TRADING AS

NATURALWEAR SECOND DEFENDANT

AT CHRISTCHURCH BEFORE:

Ms MG Coleman, Deputy Chairperson Ms WV Gilchrist, Member

Ms ST Scott QSM, Member

REPRESENTATION:

Ms CC Horrell in person

Mr R Brady, Director of Naturalwear, for first and second defendants DATE OF HEARING: 30-31 March, 1 April 2021

DATE OF DECISION: 31 October 2023

(REDACTED) DECISION OF TRIBUNAL1

1 This decision is to be cited as Horrell v Banyan Pacific Capital Ltd [2023] NZHRRT 35. (Due to publication restrictions, the names and/or addresses of Naturalwear and Cancer Society clients referred to in this decision have been anonymised or redacted.)

OVERVIEW OF CLAIM

THE ISSUES

2 The Health Information Privacy Code 1994 has now been replaced by a new Code promulgated in 2020. The Privacy Act 1993 (Privacy Act) has been repealed and replaced with the Privacy Act 2020. However, all references to “the Privacy Act” and “the HIPC” in this decision are those in operation at the time of the alleged privacy breach which are those in the 1993 Act and the 1994 Code.

3 See Privacy Act 1993, s 66(1)(a).

her privacy has been interfered with by Naturalwear by showing that she has suffered one or more of the kinds of harm set out in the Privacy Act 1993 (the Privacy Act), s 66(1)(b). It is only once both a breach of HIPC rules and harm have been established that the Tribunal can consider whether it would be appropriate to grant a remedy.

[15.1] Was the source of Ms Horrell’s health information used by Naturalwear for direct marketing Ms Horrell’s warranty card, or was it the Cancer Society database?

[15.2] Did Naturalwear breach any of the collection rules set out in rr 1 to 4 of the HIPC?

[15.3] If there was a breach of the collection rules, did that breach (or breaches) result in an interference with Ms Horrell’s privacy?

[15.4] If there has been an interference with privacy, either through a breach of the collection rules or the already acknowledged interference with privacy arising out of the breach of r 10, what is the appropriate remedy (if any)?

WHAT WAS THE SOURCE OF MS HORRELL’S HEALTH INFORMATION USED BY NATURALWEAR FOR DIRECT MARKETING TO HER?

Evidence of Cheryl Horrell

addressed to Cheryl Horrell at [redacted], Christchurch, and advised that Naturalwear was offering a prosthetic fitting service in Christchurch and that Addie [Adrienne Harrison] was available for home visits.

Evidence of Elizabeth Chesterman

manipulating the completed database and instructed Ms Derrick to remove the database from a common computer drive to a secure drive.

transparently identifies the spelling mistakes which were duplicated by Naturalwear in its marketing.4

...

  1. A B received a letter from Naturalwear, along with two other women she knows (C D and E F deceased) at the same time. A told me she was concerned how Naturalwear had obtained her details so contacted the Naturalwear Auckland Office telephone number (0800 612 612) and was told by someone at that office that "the Cancer Society had sold their data base to Medivex/Naturalwear".
  1. A B has supplied me with a copy of the letter she received from Naturalwear and it contains the identical details as recorded on our spreadsheet, including errors. Her name is spelt incorrectly as "[redacted]" and her address has a lower case "l" in the word Lane. These mistakes are not replicated in the Cancer Society's hard copy card record system, and I therefore believe that these were the result of a data entry mistake at the time of compiling the spreadsheet. It is also unlikely that A would have written her name and address incorrectly on any Warranty Card.
  1. An entry on our spreadsheet records the name GH GH, instead of GH I (on our card system) or GH J (married name). Interestingly, G J told me that she received the Naturalwear letter addressed to GH GH, which she has forwarded to the Cancer Society. I believe this is a data entry mistake on the Cancer Society's part and is unlikely to have been recorded by G J on her Warranty Card or the Ministry of Health's subsidy claim forms, if that had been the source of Naturalwear's data.
  1. In addition, on the Cancer Society's data base, G’s address is incorrectly recorded as [redacted] road (lower case "r") and the letter from Naturalwear received by G contains the same error.
  1. K L told me that she called the Auckland 0800 number for Naturalwear, regarding the letter from Naturalwear sent to her sister-in-law, M L. M no longer lives in New Zealand. K said that she was told by Debbie at Naturalwear that the company had been “given the data base by the Cancer Society”. This is not true.
  1. Another client, N O, told me that she had contacted the Cancer Society, the Ministry of Health and Naturalwear, demanding information on the source of her name. N told me that she was told by Debbie that it came from the Amoena Breast Form Warranty Cards. When she said this was not ethical and she would be taking it further, Debbie from Naturalwear said “it would be a shame if it went further and that if N did she would be denying their service to many other women in New Zealand”.
  1. P Q, a client on our data base told me she also received a letter from Naturalwear, contacted them asking how her name had been obtained and was told it was from the Amoena Warranty. P told me she was seriously concerned about this, so contacted Amoena (Australia) Joy.Magee@amoena.com and was informed by email (copy forwarded to the Cancer Society for our records) that they had no record of her details and are very clear that the warranty names must not be used for any other purpose other than proof of purchase for warranty claims made within a two year period. I understand that P did not purchase Amoena products which is why she is not on the Amoena warranty system.
  1. During a phone call I had with Addie Harrison on Thursday 9 February she told me that the details were sourced from the Amoena Warranty cards. I asked her how this could explain women purchasing an Anita product from another company, Breast Care Products? She told me she wasn't sure, but that Medivex used to sell Anita prostheses, however a search I conducted on the internet revealed Breast Care Products were established in June 2010 (prior to our 2012 cut- off date for our spreadsheet).
  1. G J told me she made face to face contact with Addie Harrison on Friday 10 February 2016. This was after my phone call conversation with Addie the previous day. G told me that [sic] was told by Addie that Naturalwear had obtained the client names from the Ministry of Health.
  2. R S advised the Cancer Society that she had talked directly to Addie Harrison and asked about the source of her name. She told me that Addie cried on the telephone and said she had no knowledge of any of the issues she had raised.

12 T U told me that on 13 February 2017 she telephoned the Naturalwear Auckland office and was informed that her name was sourced from the Amoena warranty cards.

13. V W telephoned the Cancer Society on 13 February 2017 to advise that his wife, X, had died three years ago and he was most distressed to have received mail from both Naturalwear and the Cancer Society. He told the Cancer Society that he had phoned Addie earlier and she had told him that X’s name came from suppliers in Melbourne and Germany.

By the time communication ceased with Richard Brady in May 2017 the Cancer Society was aware of at least thirty women who had received unsolicited letters from Naturalwear. Eight of these women had purchased non Medivex/Naturalwear products, so their names could not have been sourced from warranty cards held by Naturalwear. Two of these women are deceased. In addition, the plaintiff, Cheryl Horrell, has since come forward ... the address on both the Cancer Society’s data-base spreadsheet and on the letter she received from Naturalwear bear the same error – [redacted] rather than its correct spelling of [redacted]. The Cancer Society had entered this incorrectly into their spreadsheet, and a likely explanation is that it was transposed with this error from the Cancer Society’s spreadsheet to Naturalwear’s data base. It is very unlikely that Ms Horrell would have spelt her own street name incorrectly on warranty information purportedly held by Naturalwear.

We accept there may be a few names on the Naturalwear database that must have come from the Cancer Society list somehow. I can not [sic] speculate how this happened, yet I understand this [is] a small number – perhaps 5 – when compared to the overall database of 700-800 names.

Evidence of Richard Brady

Ms Horrell at “[redacted]”, the same spelling of her address as on the Cancer Society database. Mr Brady’s explanation for Ms Horrell’s address being spelt identically in the marketing material and in the Cancer Society database was that the same human error was made when the warranty card information was typed into Naturalwear’s database.

concern that Naturalwear had improperly accessed its database. Mr Brady said that he had shown Ms Chesterman and Mr Kyne a couple of warranty cards, although he did not challenge Ms Chesterman’s evidence that she was not shown any warranty cards. He further said that it never occurred to him to show them all of the warranty cards or to show them his database of former Cancer Society clients to establish the match between it and the warranty cards Naturalwear held.

What was the source of Ms Horrell’s personal health information?

from the Cancer Society database, we find it more likely that this too was the source of Ms Horrell’s address.

WAS THERE A BREACH OF THE COLLECTION RULES?

The collection rules

[81.1] Rule 1 deals with the purpose for which information is collected;

[81.2] Rule 2 deals with the source of any health information collected and also requires an agency to collect health information from the individual concerned unless one or more of the stated exceptions apply;

[81.3] Rule 3 deals with transparency of the collection of health information; and

[81.4] Rule 4 deals the manner of collection of health information.

Collection Limitation Principle

  1. There should be limits to the collection of personal data and such data should be obtained by lawful and fair means and, where appropriate, with the knowledge or consent of the data subject.

6 The OECD Guidelines were adopted by OECD member countries in September 1980. See, for example, Stephen Penk and Rosemary Tobin (eds) Privacy Law in New Zealand (2nd ed, Thomson Reuters, Wellington, 2016) at [3.2].

7 See, for example, Holmes v Housing New Zealand Corporation [2014] NZHRRT 54 at [74].

Sharing information by related companies

In this Act, a company is related to another company if—

(a) the other company is its holding company or subsidiary; or

(b) more than half of the issued shares of the company, other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital, are held by the other company and companies related to that other company (whether directly or indirectly, but other than in a fiduciary capacity); or

(c) more than half of the issued shares, other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital, of each of them are held by members of the other (whether directly or indirectly, but other than in a fiduciary capacity); or

(d) the businesses of the companies have been so carried on that the separate business of each company, or a substantial part of it, is not readily identifiable; or

(e) there is another company to which both companies are related;— and related company has a corresponding meaning.

8 Armfield v Naughton [2014] NZHRRT 48 at [44].

9 Armfield, above n 8, at [44].

[A]ny person or body of persons, whether corporate or unincorporate, and whether in the public sector or the private sector; and, for the avoidance of doubt, includes a department.

Was there a breach of Rule 1?

Rule 1

Purpose of Collection of Health Information

Health information must not be collected by any health agency unless:

(a) the information is collected for a lawful purpose connected with a function or activity of the health agency; and

(b) the collection of the information is necessary for that purpose.

10 See Tan v New Zealand Police [2016] NZHRRT 32 at [77].

Was there a breach of rule 2?

Rule 2

Source of Health Information

(1) Where a health agency collects health information, the health agency must collect the information directly from the individual concerned.

(2) It is not necessary for a health agency to comply with subrule (1) if the agency believes on reasonable grounds:

(a) that the individual concerned authorises collection of the information from someone else having been made aware of the matters set out in subrule 3(1);

(b) that the individual is unable to give his or her authority and the health agency having made the individual’s representative aware of the matters set out in subrule 3(1) collects the information from the representative or the representative authorises collection from someone else;

(c) that compliance would:

(i) prejudice the interests of the individual concerned;

(ii) prejudice the purposes of collection; or

(iii) prejudice the safety of any individual;

(d) that compliance is not reasonably practicable in the circumstances of the particular case;

(e) that the collection is for the purpose of assembling a family or genetic history of an individual and is collected directly from that individual;

(f) that the information is publicly available information;

(g) that the information:

(i) will not be used in a form in which the individual concerned is identified;

(ii) will be used for statistical purposes and will not be published in a form that could reasonably be expected to identify the individual concerned; or

(iii) will be used for research purposes (for which approval by an ethics committee, if required, has been given) and will not be published in a form that could reasonably be expected to identify the individual concerned;

(h) that non-compliance is necessary:

(i) to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences;

(ii) for the protection of the public revenue; or

(iii) for the conduct of proceedings before any court or tribunal (being proceedings that have been commenced or are reasonably in contemplation); or

(i) that the collection is in accordance with an authority granted under section 54 of the Act.

Was there a breach of rule 3?

Rule 3

Collection of Health Information from Individual

(1) Where a health agency collects health information directly from the individual concerned, or from the individual’s representative, the health agency must take such steps as are, in the circumstances, reasonable to ensure that the individual concerned (and the representative if collection is from the representative) is aware of:

(a) the fact that the information is being collected;

(b) the purpose for which the information is being collected;

(c) the intended recipients of the information;

(d) the name and address of:

(i) the health agency that is collecting the information; and

(ii) the agency that will hold the information;

(e) whether or not the supply of the information is voluntary or mandatory and if mandatory the particular law under which it is required;

(f) the consequences (if any) for that individual if all or any part of the requested information is not provided; and

(g) the rights of access to, and correction of, health information provided by rules 6 and 7.

(2) The steps referred to in subrule (1) must be taken before the information is collected or, if that is not practicable, as soon as practicable after it is collected.

Was there a breach of rule 4?

Rule 4

Manner of Collection of Health Information

Health information must not be collected by a health agency:

(a) by unlawful means; or

(b) by means that, in the circumstances of the case:

(i) are unfair; or

(ii) intrude to an unreasonable extent upon the personal affairs of the individual concerned.

11 Harder v Proceedings Commissioner [2000] NZCA 129; [2000] 3 NZLR 80 (CA) at [32] and [34].

12 Harder, above n 11.

13 At [31]–[33].

14 Lehmann v Canwest Radioworks Ltd [2006] NZHRRT 35 at [73].

did not intend to exclude from consideration any harm suffered by the subject of the information.

Breach of r 10 accepted by Naturalwear

Rule 10

Limits on Use of Health Information

(1) A health agency that holds health information obtained in connection with one purpose must not use the information for any other purpose unless the health agency believes on reasonable grounds:

(a) that the use of the information for that other purpose is authorised by:

(i) the individual concerned; or

(ii) the individual’s representative where the individual is unable to give his or her authority under this rule;

(b) that the purpose for which the information is used is directly related to the purpose in connection with which the information was obtained;

(c) that the source of the information is a publicly available publication [and that, in the circumstances of the case, it would not be unfair or unreasonable to use the information];

(d) that the use of the information for that other purpose is necessary to prevent or lessen a serious [...] threat to:

(i) public health or public safety; or

(ii) the life or health of the individual concerned or another individual;

(e) that the information:

(i) is used in a form in which the individual concerned is not identified;

(ii) is used for statistical purposes and will not be published in a form that could reasonably be expected to identify the individual concerned; or

(iii) is used for research purposes (for which approval by an ethics committee, if required, has been given) and will not be published in a form that could reasonably be expected to identify the individual concerned;

(f) that non-compliance is necessary:

(i) to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences; or

(ii) for the conduct of proceedings before any court or tribunal (being proceedings that have been commenced or are reasonably in contemplation);

(g) that the use of the information is in accordance with an authority granted under section 54 of the Act.

HAS THERE BEEN AN INTERFERENCE WITH MS HORRELL’S PRIVACY?

66 Interference with privacy

(1) For the purposes of this Part, an action is an interference with the privacy of an individual if, and only if,—

(a) in relation to that individual,—

(i) the action breaches an information privacy principle; or

(ii) the action breaches a code of practice issued under section 63 (which relates to public registers); or

(iia) the action breaches an information privacy principle or a code of practice as modified by an Order in Council made under section 96J; or

(iib) the provisions of an information sharing agreement approved by an Order in Council made under section 96J have not been complied with; or

(iii) the provisions of Part 10 (which relates to information matching) have not been complied with; and

(b) in the opinion of the Commissioner or, as the case may be, the Tribunal, the action—

(i) has caused, or may cause, loss, detriment, damage, or injury to that individual; or

(ii) has adversely affected, or may adversely affect, the rights, benefits, privileges, obligations, or interests of that individual; or

(iii) has resulted in, or may result in, significant humiliation, significant loss of dignity, or significant injury to the feelings of that individual.

[29] The feelings of human beings are not intangible things. They are real and felt, but often not identified until the person stands back and looks inwards. ... However a feeling can be described, it is clear that some feelings such as fear, grief, sense of loss, anxiety, anger, despair, alarm and so on can be categorised as injured feelings. They are feelings of a negative kind arising out of some outward event. To that extent they are injured feelings.

[61] ... [A] plaintiff claiming an interference with privacy must show the defendant’s act or omission was a contributing cause in the sense that it constituted a material cause. The concept of materiality denotes that the act or omission must have had (or may have) a real influence on the occurrence (or possible occurrence) of the particular form of harm. The act or omission must make (or may make) more than a de minimis or trivial contribution to the occurrence (or possible occurrence) of the loss. It is not necessary for the cause to be the sole cause, main cause, direct cause, indirect cause or “but for” cause. No form of words will ultimately provide an automatic answer to what is essentially a broad judgment.

15 Director of Proceedings v O’Neill [2001] NZAR 59 (HC).

16 Taylor v Orcon Ltd [2015] NZHRRT 15, (2015) 10 HRNZ 458 at [61].

felt that she was fed a mix of lies and red herrings which made her angry and upset and that she was treated with hostility by Naturalwear staff.

Not only was Naturalwear uninvited, unwelcome and intruding into my life, it went on to minimise the breach of my privacy. The receipt of inappropriate advertising was traumatic but the realisation that the company had collected my breast cancer information without my knowledge or consent was devastating. When Naturalwear staff responded to my queries with inappropriate statements and conflicting explanations, I felt it was shutting down my questions.

Conclusion on interference with privacy

REMEDIES

85 Powers of Human Rights Review Tribunal

(1) If, in any proceedings under section 82 or section 83, the Tribunal is satisfied on the balance of probabilities that any action of the defendant is an interference with the privacy of an individual, it may grant 1 or more of the following remedies:

(a) a declaration that the action of the defendant is an interference with the privacy of an individual:

(b) an order restraining the defendant from continuing or repeating the interference, or from engaging in, or causing or permitting others to engage in, conduct of the same kind as that constituting the interference, or conduct of any similar kind specified in the order:

(c) damages in accordance with section 88:

(d) an order that the defendant perform any acts specified in the order with a view to remedying the interference, or redressing any loss or damage suffered by the aggrieved individual as a result of the interference, or both:

(e) such other relief as the Tribunal thinks fit.

(2) In any proceedings under section 82 or section 83, the Tribunal may award such costs against the defendant as the Tribunal thinks fit, whether or not the Tribunal makes any other order, or may award costs against the plaintiff, or may decline to award costs against either party.

(3) Where the Director of Human Rights Proceedings is the plaintiff, any costs awarded against him or her shall be paid by the Privacy Commissioner, and the Privacy Commissioner shall not be entitled to be indemnified by the aggrieved individual (if any).

(4) It shall not be a defence to proceedings under section 82 or section 83 that the interference was unintentional or without negligence on the part of the defendant, but the Tribunal shall take the conduct of the defendant into account in deciding what, if any, remedy to grant.

88 Damages

(1) In any proceedings under section 82 or section 83, the Tribunal may award damages against the defendant for an interference with the privacy of an individual in respect of any 1 or more of the following:

(a) pecuniary loss suffered as a result of, and expenses reasonably incurred by the aggrieved individual for the purpose of, the transaction or activity out of which the interference arose:

(b) loss of any benefit, whether or not of a monetary kind, which the aggrieved individual might reasonably have been expected to obtain but for the interference:

(c) humiliation, loss of dignity, and injury to the feelings of the aggrieved individual.

Remedies sought

$20,000. She did so in response to the way in which she perceived Naturalwear conducted the litigation which she said wore her down and increased her levels of stress. Ms Horrell described the additional $10,000 as punitive damages for providing a copy of her warranty card which Naturalwear had previously claimed to have destroyed and for restructuring the business so that Naturalwear became the trading name of a different company which she said was to escape the jurisdiction of the Tribunal. She also said the additional sum better reflected the amount of time she had spent on the case as well as the cost of materials such as toner for printing documents. Ms Horrell asked that the punitive damages be paid to the Cancer Society in recognition of the trauma and distress caused to its clients and staff.

Damages

[139.1] The award of damages is to compensate the plaintiff rather than to punish the defendant, although the conduct of the defendant may be a relevant factor in the assessment of the quantum of damages awarded.

[139.2] Where it is found for the purposes of s 66(1)(b)(iii) that there has been an interference with privacy it follows that the threshold for awarding compensatory damages has been met. This is because that subsection (set out above at [119]) requires the plaintiff to establish significant humiliation, significant loss of dignity or significant injury to feelings.

[139.3] The nature of the assessment required by s 88(1)(c) means there is a subjective element to any assessment to which the personality of the aggrieved person is relevant.

[139.4] The award of damages must adequately compensate the aggrieved individual for the harm suffered.

17 Hammond v Credit Union Baywide [2015] NZHRRT 6 at [170].

under s 85(4) of the Privacy Act to take the conduct of Naturalwear into account when deciding what, if any, remedy to grant.

$10,000 were identified as appropriate for harm at the less serious end, with awards in the middle band ranging from $10,000 to $50,000, and awards of over that amount for the most serious cases.18

Declaration

COSTS

NON-PUBLICATION ORDERS

Criteria and approach to non-publication orders

[66] In summary (and at the risk of some repetition) the following principle points (they are not intended to be exhaustive) should be kept in mind when interpreting and applying s 107(1) and (3) of the Human Rights Act. It is these points which will assist the determination whether the Tribunal is satisfied that it is “desirable” to make a suppression order:

19 See Geary v New Zealand Psychologists Board [2012] NZHC 384, [2012] 2 NZLR 414 at [107]- [108].

20 See Scarborough v Kelly Services (NZ) Ltd (Costs) [2016] NZHRRT 3 at [8.1].

21 Waxman v Pal (Application for Non-Publication Orders) [2017] NZHRRT 4.

[66.1] The stipulation in s 107(1) that every hearing of the Tribunal be held in public is an express acknowledgement of the principle of open justice, a principle fundamental to the common law system of civil and criminal justice. The principle means not only that judicial proceedings should be held in open court, accessible to the public, but also media representatives should be free to provide fair and accurate reports of what occurs in court.

[66.2] There are circumstances in which the interests of justice require that the general rule of open justice be departed from, but only to the extent necessary to serve the ends of justice. This is recognised by s 107(1), (2) and (3) of the Act.

[66.3] The party seeking the order must show specific adverse consequences that are sufficient to justify an exception to the fundamental rule. The standard is a high one.

[66.4] In deciding whether it is satisfied that it is desirable to make a suppression order the Tribunal must consider:

[66.4.1] Whether there is some material before the Tribunal to show specific adverse consequences that are sufficient to justify an exception to the fundamental rule.

[66.4.2] Whether the order is reasonably necessary to secure the proper administration of justice in proceedings before it. The phrase “the proper administration of justice” must be construed broadly, so that it is capable of accommodating the varied circumstances of individual cases as well as considerations going to the broader public interest.

[66.4.3] Whether the suppression order sought is clear in its terms and does no more than is necessary to achieve the due administration of justice.

Should final orders be made?

23 See Marshall v IDEA Services Ltd (Application for Interim Non-Publication Orders) [2019] NZHRRT 52 at [16.2].

24 JM v Human Rights Review Tribunal. [2023] NZHC 228 at [84]–[85].

Search of the Tribunal file

DECISION OF THE TRIBUNAL AND FORMAL ORDERS

[173.1] A declaration under s 85(1)(a) of the Privacy Act 1993 that Naturalwear interfered with Ms Horrell’s privacy in the way it collected her health information and then used that information to market its services to her.

[173.2] The defendants, jointly and severally, are to pay Ms Horrell the sum of

$10,000 for injury to feelings under s 85(1)(c) of the Privacy Act 1993.

[173.3] The defendants, jointly and severally, are to pay Ms Horrell the sum of

$500 in costs under s 85(2) of the Privacy Act 1993.

25 See A v Van Wijk (Access to File) [2019] NZHRRT 12 at [11].

[173.4] Pursuant to s 107(3)(b) of the Human Rights Act 1993 the Tribunal makes final orders that:

[173.4.1] There is to be no publication of the names, addresses, or other details which might lead to the identification of Cancer Society clients or their family members referred to in this decision or in any of the evidence before the Tribunal, other than the plaintiff whose address only is not to be published.

[173.4.2] There is to be no publication of the names, addresses, or other details which might lead to the identification of Naturalwear clients referred to in this decision or in any of the evidence before the Tribunal.

[173.4.3] There is to be no search of the Tribunal file without leave of the Chairperson or the Tribunal after first allowing the parties the opportunity to be heard on any such request.

............................................
Ms MG Coleman Deputy Chairperson
............................................
Ms WV Gilchrist Member
...........................................
Ms ST Scott QSM Member

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