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Burrows, John --- "Neil Williamson Memorial Lecture: The news media and the law" [2003] CanterLawRw 9; (2003) 9 Canterbury Law Review 229


John Burrows[*]

If there is a coherent subject called Media Law - and sometimes I am inclined to doubt it — its fundamental principle is supplied by s 14 of the New Zealand Bill of Rights Act 1990. That provision guarantees the right of freedom of expression, subject of course to s5 which provides that that freedom is subject to such reasonable limits as can be demonstrably justified in a free and democratic society. Freedom of expression includes freedom of the press. Let us not take that freedom for granted. Like many aphorisms which are frequently stated it can roll too easily off the tongue and we can forget its true significance. Without a news media we would know almost nothing about what was going on around us. As the American newsman Walter Lippmann once said, we would live in an invisible environment. Not only would we not know the score in the most recent rugby test match, we would not even know that the test had been held. Without a free media we would not know enough to exercise our democratic rights. We would indeed not have a democracy at all. Without a free media we would lack an essential control on the abuse of power by governments and others. How free, then, are the New Zealand media? A respected international organisation called Freedom House conducts an annual survey on press freedom.[1] The results of the most recent survey have just been released. 193 countries were surveyed and New Zealand rates first equal. We stand in the company of Sweden, Iceland and Andorra. It is interesting that Freedom House rates us ahead even of the United States of America, where freedom of speech has so long been enshrined in the Constitution that some regard that country as its finest exemplar. The principal focus of Freedom House is the relationship between the media and the government. In New Zealand our government is open, and exerts negligible control over the press. Parliament meets in public; every word of what is said in its proceedings is reported in Hansard; it is broadcast; and there is a press gallery whose reporters can freely report the proceedings in their media. (I often believe that our media do not take advantage of this freedom as often as they might. Perhaps this is for economic reasons; there have been cut-backs in press gallery staff in recent years.) We are fortunate also to have the Official Information Act 1982 which enacts a presumption that information held by a large range of government agencies must be disclosed on request unless there is 'good reason for withholding it.' Overall that Act has worked well, although human nature ensures that compliance with it is sometimes rather grudging: people do not like embarrassing things being published about them and their organisations. Nor is there any real censorship. In practice there is a free right to criticise government. I might say that on paper the law is a little more restrictive than that. The sedition provisions of the Crimes Act 1961[2] provide that it is a criminal offence to publish material with the intention of bringing the government into hatred or contempt. If that 'hatred or contempt' test is the same as that employed in the law of defamation it does not set a particularly high threshold. However the sedition provisions, far from being unreasonably enforced, have never been enforced at all. They are virtually a dead letter. Again, the Standing Orders of the House of Representatives give parliament power to punish those who engage in 'reflection contempts', that is to say publications which 'offer indignities' to the House or a Member of Parliament.[3] Parliament has from time to time dusted off those contempt laws, but it has never imposed severe penalties. In fact it has the power to imprison, but in New Zealand that power has never been exercised. (It was in Australia as recently as the 1950s when journalists were imprisoned for publishing offensive comments about a Member of Parliament).[4] Given that our sedition and contempt of parliament laws are not strictly enforced it is high time they were amended. It is pointless, and indeed it can be damaging, to have draconian laws on the books even though they are not used.

So the only effective constraints on criticism of government are the private rights of Members of Parliament and others to sue for defamation, or to lay complaints with the Broadcasting Standards Authority. It is important that these private rights be not unreasonably exercised. We contrast strongly indeed with countries at the bottom of Freedom House's list of 193. Here is their comment about one of those countries:

The government controls all media and information, and strictly curtails freedom of speech. Censorship is enforced... Ordinary citizens face a steady onslaught of propaganda from radio and television that are pre-tuned to receive only government stations. According to the Committee to Protect Journalists the penal code cites listening to foreign broadcasts and possessing dissident publications as 'crimes against the state' which are punishable by death. Citizens have neither the right nor the means to access the internet.

How lucky we are.

What then are the constraints which do exist on press freedom in New Zealand? As the New Zealand Bill of Rights Act 1990 envisages, there surely must be some reasonable limits on this freedom. It could never be the law that the media can publish anything they like with impunity, however false, damaging and malicious it might be.

It is here that we come upon a paradox. As I have said, the media are our constitutional safeguard. They have been referred to as the fourth estate. We depend on our media for the maintenance of democracy. However, our media are commercial enterprise. They have to return a profit; and to return a profit they have to sell their product. So they do what all businesses do; they find what their consumers want and try to give it to them. This is reflected by a recent statement by Ian Fraser, the Chief Executive of Television New Zealand, when he announced a senior appointment to the news team:

He offered a quality of excitement and edge and boldness which is not totally separate of course from risk.

The road starting at excitement can, unless it is carefully controlled, lead to the destination called sensationalism. And sensationalism sells. That is why the English tabloid newspaper The Sun has a circulation many times that of the venerable Times newspaper.

I wish to make it clear that in my view the New Zealand media behave very much better than some of their cousins overseas. They do not come close to the excesses of some of the tabloid newspapers elsewhere. I think overall they exercise responsibility in the face of the modern pressures to increase the size of the figure on the bottom line.

Nevertheless, the law has to set limits, and there are many. I wish to talk about two, both of them ones which are designed to protect the individual citizen. One of them is well-established, the other embryonic and of entirely uncertain extent.

First I wish to speak about defamation, which most consider the major legal constraint on the media. Defamation is defined simply as publishing matter which could lower the plaintiff in the eyes of the right-thinking member of society. In other words, it is the law which protects reputation against unjustified attack.

Reputation lies deep in our psyche. Shakespeare had Othello say 'I have lost my reputation: I have lost the immortal part of myself.' Injury to reputation is the stuff of which duels used to be made. It is a matter of honour. In early England the laws about defamation were very tough indeed. Reports from the year 1537 cite the case of one Richard Vowles[5] who was unwise enough to libel a high official. The court described him as a 'foolish, lewd, slanderous, seditious and light person' and sentenced him to have both his ears cut off, one at Westminster and one at his home town of Bruton. When the common law developed to make defamation redressable in civil proceedings that law was severe as well. It remains, on paper at least, the most plaintiff-friendly of all the torts. The plaintiff does not have to prove that the statement made about him or her was false. Rather it is up to the defendant to prove that it was true. And truth can be difficult to prove in a court of law. Nor does the plaintiff have to prove any fault on the defendant's part: defamation can be committed by mistake or accident. Given the volume of matter which crosses journalists' desks every day in a media office, and the tight deadlines to which they work, it is not surprising that mistakes are occasionally made. It has been well said that the odds against producing an accurate history of the day's events are long and lengthening all the time. Nor does the plaintiff have to prove damage; such is the importance of reputation that damage is assumed. Money awards are high, although not as high in this country as in Great Britain. The highest on record so far in this country is an award of $675,000.00 to entertainer Ray Columbus.[6] Moreover now that many newspapers have a website as well as being in hard copy, they can be at risk throughout the world. A newspaper published in New Zealand may be subj ect to a defamation action half a world away. Add to this the fact that most defamation cases are heard by juries, and that juries can be somewhat unpredictable in these matters, and one can see the level of risk involved. All of this sounds unacceptably restrictive. In practice it is probably not as bad as it sounds. It takes a very determined plaintiff to endure the publicity, and the cost, of pursuing a defamation case to a conclusion in the courts. And plaintiffs do not always win. Last year for example, lawyer Donna Hall lost a case against the National Business Review.

Nevertheless, the law of defamation probably does have a chilling effect on the media. It can make an editor decline to run a piece exposing wrong-doing by a person in high office, even though the journalists involved are convinced of the truth of their allegations. In other words, there probably are times when editors wish to publish something but are afraid to do so because of the risk of defamation. We do not yet know the extend of this is in New Zealand, although the anecdotal evidence is quite strong. But in 1997 there was a survey undertaken in Great Britain[7] which demonstrated conclusively that the chilling effect is real, although it tends to chill the smaller media rather than the large ones which can afford to employ expert legal advice. In New Zealand my colleague Ursula Cheer is currently undertaking a similar survey. It is too early yet to predict the results, but I would be surprised if they are very different from those obtained in Great Britain. If we feel that the balance in defamation is currently too much against the media, what are we to do? What is the right balance between the freedom of information on the one hand and individual reputation on the other? It is one of the law's most difficult questions. Lord Goodman, an English lawyer who had much to do with the media and knew it well, once said:

I still find the utmost difficulty in deciding precisely what middle course is most suitable in a civilised society to procure that no scandal can legitimately be concealed, no matter of public concern removed from public vigilance, while yet no inoffensive and law abiding person can find himself pilloried and lampooned for the cruel delectation of a public either born or assiduously schooled to love sensation.[8]

However, New Zealand has made a move in recent years, as indeed have Australia and the United Kingdom in very similar circumstances. The New Zealand Bill of Rights Act 1990 played a part in the reasoning in New Zealand. In Lange v Atkinson,[9] Mr Lange, the former Prime Minister, sued North & South magazine for publishing an article about his years as a politician. He complained about some of the criticisms made of him. Perhaps the magazine could have successfully defended some of them on the basis of honest opinion, but in relation to those which were statements of fact rather than opinion truth would have been the only defence, and the truth of sweeping allegations is sometimes very difficult to prove. So the magazine defended itself on the basis of privilege. This was a new departure. It was arguing in fact that there should be a privilege, a latitude, to criticise politicians more than other people. After the case had taken a devious route from Court of Appeal to Privy Council back to Court of Appeal again, the Court of Appeal acceded to that suggestion. It held that in New Zealand there is more latitude to discuss politicians than other people, and that in the interests of free debate in a democratic society, publishers may be able to get away with a few allegations that they cannot prove absolutely true. Free political discussion is so important that one should be able to engage in it openly and fearlessly. One of the prices we may have to pay is the occasional error. Nevertheless, the Court of Appeal made it clear that the privilege will only be effective if the media concerned have acted responsibly. They cannot get away with what was described as a 'cavalier approach to the truth.’ That is to say, they cannot rely on casual gossip, their sources should be carefully checked, they should not have engaged in deceptive practice, and their tone should not be sensational.

Currently the case is confined to national politicians. That is because that is what Mr Lange was, and there was no need for the court to take the law any wider than that. It has been aptly said that the common law scores its runs in singles. But in logic there is no reason why the principle should not extend further: to local body politicians, to government officials (they after all advise politicians on policy), and even to captains of industry. Those people can have every bit as much of an effect on our daily lives as can politicians. In the United Kingdom the equivalent privilege does extend that far. It is interesting, however, that after three years there have been no further developments of the Lange principle and the case has not really been tested. The reason I think is that Lange has left some of the boundaries unclear. Exactly what sorts of discussion are privileged? What exactly is responsible conduct? It may be that editors have been tentative about testing the new waters. This does show the drawbacks of judicial law-making. Judges, simply because they are deciding the case before them, find it difficult to chart a clear and detailed path for future development. I come next to an area where some urge that the law should be doing more to protect the citizen while others resist such a development for fear of weakening freedom of speech. Currently things are in a state of great uncertainty. Our question is how far the law protects an individual's privacy. In the past there has been nothing like a coherent protection of privacy. Over the years a few protections developed which could best be described as haphazard and anomalous. Thus, it is unlawful in New Zealand to record a private conversation with a listening device,[10] but not to film the parties involved; it is unlawful for a private investigator to take photos of a person[11] but not for the paparazzi to do so; it is unlawful to peer through a dwellinghouse window at night[12] but not during the daytime; and until recently it was unlawful to open somebody else's mail but not to hack into their computer. [13] There was nothing like a general protection of privacy. That was shown dramatically in Britain in 1990 in a case involving Gorden Kaye, the well known actor who played Renee in the television show' 'Allo 'Allo!'.[14] Kaye was seriously injured when he was driving his car in stormy weather. The gale-force winds blew a piece of wood through his car window injuring his head. He required major surgery. As he was coming out of the anaesthetic in his hospital room, lapsing in and out of consciousness, reporters and photographers from a newspaper managed to get into his room and photograph and interview him. Kaye later brought action against them. The Court of Appeal said he had no redress for breach of privacy, because the law did not recognise any such general right. One judge said:

The defendant's conduct towards the plaintiff here was a monstrous invasion of his privacy. If ever a person has a right to be let alone by strangers with no public interest to pursue it must surely be when he lies in hospital recovering from brain surgery and in no more than partial command of his faculties. It is this invasion of his privacy which underlies the plaintiff's complaint, yet it alone, however gross, does not entitle him to relief in English law.[15]

(Kaye was in fact given a remedy in malicious falsehood, but this was almost fortuitous because the newspaper had suggested he had consented to the interview, which was manifestly untrue. Had it not been for this he probably would have received no redress at all.)

One of the law's more interesting questions is why English law has been so slow to recognise a cause of action in privacy. Perhaps some of the reasons are as follows. Emotional distress, humiliation and embarrassment are the gravamen of a privacy claim. English law still does not recognise emotional distress alone as a recoverable head of damage in tort. Moreover privacy is about respect for our fellow citizens and the law generally does not enforce respect as such. It is not illegal to belittle or humiliate someone because of their appearance or their beliefs; nor has it been illegal to humiliate them by breaching their privacy. The law has treated these matters as being more at home in the field of ethics and manners than of law. We must remember, too, that the first half of the 20th Century was a time of great deprivation. There were two world wars and a world depression which caused the most appalling loss of life and physical deprivation, and also extreme economic and financial hardship. It may well be that in this context breaches of privacy were seen as being very low on the list of legal priorities.

Another major difficulty with privacy has always been how one defines it. The best known definition is an American one - 'the right to be let alone'[16] - but that of course will not do. If everyone had the right to be let alone, the media could publish almost nothing.

In recent years there has been growing pressure for the protection of privacy. We live in a sophisticated modern society where people are concerned that their behaviour can be monitored by new electronic devices and long-range cameras. It is also true that in some overseas countries, including Britain, the behaviour of some of the media has exceeded what is acceptable. The Gorden Kaye case is only one example. There have been recent cases of female actors and celebrities being photographed in a state of undress with long-range cameras. Members of the royal family have been subjected to merciless harassment. As a result of all this, the protection of privacy has slowly found its way into the international legal arena. It appears quite explicitly in some international conventions. The European Convention on Human Rights, for example, provides:

Everyone has the right to respect for his private and family life, his home and his correspondence. [17]

Philosophers also make the case that privacy is an ingredient of liberty: that you cannot be truly free if you are afraid of being watched all the time. It is said that proper nurture of the family also requires freedom from intrusion.

If all of this is true, here we have a dilemma indeed. There are two powerful interests, freedom of expression and privacy, and both are apparently aspects of liberty. Yet they are almost the opposite of each other. If reconciling freedom of information with the right to reputation is difficult, reconciling it with a so-called rightto privacy is even more so. So it is currently proving. In this country as in others there has been movement on several fronts towards a degree of privacy protection. First, we have a Privacy Act 1993 which essentially provides that information about other people must be kept secure by those who hold it. In the original Bill the media were to be subject to this, but it became apparent immediately that it would be impossible for them to work within such constraints. If this privacy legislation applied to the media, the media could hardly continue to operate as we know them. So on its passage through Parliament the Privacy Bill was amended, and as enacted, the media are exempt from its principles when engaging in news activities. That is a necessary exemption. This type of privacy legislation, which is essentially about data collection and protection, is not suitable for regulating the media.

Next, the Broadcasting Act 1989 requires that broadcasters in their programmes must do nothing inconsistent with the privacy of the individual. There is no definition of privacy, but provision for complaints to be made to the Broadcasting Standards Authority. It was a bold move indeed to enshrine in statute a term as difficult to define as privacy, and effectively throw its administration into the lap of a tribunal of four people. The BSA is mid-way between an ethical and a legal body; in privacy matters it does have power to award damages. It hears a fair number of privacy complaints every year, and has formulated a set of principles according to which it acts. It is building an interesting jurisprudence.[18]

Finally the courts are also being asked to enter the fray. In New Zealand the first response of the High Court was to assert that there is a tort of infringement of privacy which consists in the publication of private facts in a way which is offensive and objectionable to the ordinary person, where there is no countervailing public interest in doing so. In the best-known of these cases an interim injunction was awarded against a newspaper to stop it publishing an article to the effect that a well-known New Zealand professional person had received psychiatric treatment.[19] In the United Kingdom, the courts are protecting something close to a privacy interest, but they have preferred to do so through the medium of other branches of the law, in particular the law of breach of confidence. The best-known of the English cases involved actors Catherine Zeta-Jones and Michael Douglas.[20] They had sold the exclusive rights to photograph their wedding to OK! magazine. A rival magazine Hello!, however, had obtained pictures from a photographer who had managed to get through security into the wedding reception, knowing that photography was banned, and taken some pictures of the couple. The judge found that this was a breach of 'commercial confidence' and at the time of this lecture is considering the question of quantum of damages.

Since these English developments, the matter has returned to the New Zealand courts where broadcaster Mike Hosking and his estranged wife are suing to prevent photographs being published showing their two infant children being pushed in a stroller down a busy Auckland street. At first instance, Mr and Mrs Hosking were refused a remedy.[21] But Randerson J, in a thorough judgment, preferred to take the English line that there is no tort of infringement of privacy as such, and that in extreme cases deserving of a remedy other causes of action, in particular breach of confidence, may be pressed into action.

I can see why this line is being taken. Judges develop the law incrementally; they do not create new causes of action out of nothing. (We are seeing similar caution in response to arguments that there should be a law of good faith in contract in New Zealand).

The question is indeed a tricky one. I have real doubts about the utilisation of breach of confidence in the privacy context. To enable breach of confidence to protect privacy one needs to distort the concept. Breach of confidence was initially based on the notion of a relationship where one entrusted information to another. In some of the so-called privacy cases there is no such relationship. Moreover, breach of confidence has had most of its development in the commercial arena, where it protects trade secrets. That is not sympathetic ground in which to plant a doctrine which protects human dignity. I worry about the judge's reliance on commercial confidence in the Zeta Jones - Douglas case. I hope no-one takes that case as authority that if I grant the exclusive right to photograph me, or write about me, to a particular magazine then no other members of the media can write about me or photograph me if they know about that exclusive arrangement. We simply cannot have a situation where people can thus control the image that they present to the public. If Zeta Jones - Douglas is to be justified at all, it is best justified on the ground that there was a trespass, and an abuse of the condition of entry onto private property.

However, if it is decided in this country that there should be a right of privacy which is enforceable in the courts (whether this right is created by legislation or by the judges under their common law powers), there are very significant dangers. The difficulty of definition remains formidable. And whenever there are difficulties of definition there is a danger that the protection will extend too far. In this context too much privacy protection would do serious harm to freedom of information. Let us look very briefly at some of the cases which have been before the BSA and the courts. The interests protected by these cases are so various that one wonders whether they are illustrative of any consistent principle at all. In P v D[22] there was prohibition on publication of a story because it revealed matters about the mental health of the plaintiff. Health is undoubtedly an intensely private and personal matter. Recently an injunction was granted to stop publication of the whereabouts of Constable Abbott, who was involved in the Waitara shooting.[23] The interest involved there is the safety of the constable and his family. In a case before the BSA it was held to be an infringement of privacy to show a picture of the house of the parents of a woman who had been killed in an air accident, with a statement that the house was currently empty.[24] One of the major reasons for this decision was to protect a proprietary interest — an announcement that a house is empty might be an inducement to burglars. In yet another case before the BSA it was held to be a breach of privacy for a talk back host to publicly abuse over the air a woman with whom he had been in some kind of a relationship (he described her as a 'stupid old bag' and a 'tart').[25] I regard the gravamen of that as being not so much breach of privacy as unacceptable abuse. Again, it has recently been held by the BSA,[26] and upheld in the High Court,[27] that it is a breach of privacy to film teenage prostitutes in the streets of Fiji even though the film was not shown in Fiji, and even though it was not shown that anyone in New Zealand recognised or identified them. The thrust of this decision is the protection of children. I wonder whether that is properly regarded as a privacy issue. I note in this regard that the New Zealand Press Council in its Statement of Principles treats privacy on the one hand,and care and consideration for children on the other, as two different principles.[28]

The danger is that 'privacy' is such an amorphous concept that one might try to do too much under its aegis and end up protecting such a diverse range of interests that there will be no shape or consistency to it all. There is a consequent danger that one will classify as privacy things that should not be so classified, but which are simply breaches of good taste. If the concept is as wide and indiscriminate as that, we will be inviting people to seek injunctions to stop publication of material just because it embarrasses them. That is unsupportable. It will enable wealthy celebrities to make a dangerous nuisance of themselves. I quote the English writer Feldman:

Privacy as a weapon in the protection of civil liberties is like a shotgun spraying pellets somewhat indiscriminately over a wide area of human endeavour, rather than a rifle delivering a powerful blow at a well defined target.[29]

Even if one is able to come up with an acceptably tight definition of privacy, that definition is likely to contain elements which require difficult subjective judgements to be made. Thus, what is a private fact? Is it a fact which is intensely personal (health, sexual activity, family life) or is it rather any fact about the person which is not in the public arena? Those are two very different starting points. When is it offensive and objectionable to publish a private fact? An extrovert and an introvert would doubtless disagree on that question. The BSA has had to make some difficult calls, and I think that even their most ardent supporters would agree that not all their decisions are self-consistent. Quite recently, in both England and New Zealand, there have been high-profile cases where lawyers, members of the public and others have disagreed on whether the matter in question should have been published. It is very hard to draw clear lines in a field like this. Letme give just four examples. When atelevision channel recently sought public opinion on whether the Hosking children should be photographed they received almost an equal number of 'yes', 'no' and 'don't know' answers. Then take the case of the English footballer Gary Flitcroft,[30] who tried to get an injunction to stop a story being published that he had had extra-marital affairs while on tour with his football team. The High Court judge granted such an injunction, but the English Court of Appeal lifted it. Their ground essentially was that as a public figure and role model the risk was his if he engaged in that kind of behaviour. Some disagree with this decision, saying that his reputation and his role model status relate to his persona as a footballer, and that what he does in his private time is irrelevant to this. Who is right?

Then there was the case of Naomi Campbell, the English model,[31] who sued because a newspaper had revealed she was receiving treatment for a drug problem, and published a picture of her coming out of a drug rehab clinic. The High Court judge awarded her a small amount of damages; the Court of Appeal reversed even that and gave her no remedy. The principal ground was that she had previously denied that she had a drug problem, and when the media discovered that indeed she did they had a right to put the matter right, and to do so in such detail as would convince the public. Even the photographs were an acceptable part of 'the j ournalistic package.And finally, what about the case of Mr Bill Trotter, the potential victim in the high-profile Wellington attempted kidnapping case in 2002?[32] Should his name have been suppressed by the court or not? Initially it was, although when he appeared as a witness the judge lifted the suppression order. The Court of Appeal found that it had no jurisdiction to determine an appeal on the matter, but said that if it had it would have agreed with the publication of the name. Again public opinion differed violently. Some believed that, as a victim, his trauma should not have been worsened by publicity. Others believed that transparency is best in the court system, and note that victims of other misfortunes (for example, survivors of air crashes and the like) usually have their identities made public.

The matter, therefore, is not at all easy. This apparent absence of common standards may be impossible to put right. General formulae, whether composed by Parliament or the courts, will impose an unenviable burden on the judges who have to administer them.

Where then do we go from here, if anywhere? How do we best reconcile the right to privacy with the right to freedom of information? I can make only the following suggestions:

• Very many complaints about infringement of privacy are minor and are best left to be dealt with as an ethical rather than legal matter.
• Because of the dangers to freedom of information, the law should not create protections of privacy unless the need is very clearly demonstrated. It is my personal view that we are not yet at that point in New Zealand.
• If it is ever decided that such protection is needed, and that the strong arm of the law needs to be involved, the law will need to define very clearly what interests it is trying to protect. It is probably better to proceed on a specific, albeit piece-meal, basis rather than try to provide ill-defined 'umbrella' protection. The law would also need to define how grave the infringement must be before it will intervene.
• If such protection is required it is probably best done by Parliament, because as a law maker it can best weigh up the competing interests in society. It can also define the limits with more precision than can any court deciding a particular case before it.
• Before entering this arena the law-maker will need to look closely at how privacy protection works overseas. The American example is sometimes held up as one we should follow. Whether the American experiment with privacy has worked depends a little on who you talk to, but I have been much informed by a scholarly essay in Basil Markesinis's recent book. The American author of this essay gloomily entitles it The Failure of American Privacy Law.[33]
• If Parliament does not intervene, what are the judges to do if a case arises before them which cries out for remedy? I believe this will happen very seldom indeed. But if it does, the courts will have the option of either going down the track of creating a tort of infringement of privacy, or searching around for an established cause of action to provide the required remedy. Breach of confidence, with all its faults, may sometimes be the only one available.

The Court of Appeal judgment in the Hosking case may help to resolve some of these matters. I can only leave you with my opinion. If there is to be any protection of privacy, please let it not pose a danger to the freedom of information which we enjoy, and must continue to enjoy, in our democracy.[34]

[*] Professor of Law, University of Canterbury.

[1] The report is on the internet at

[2] Crimes Act 1961 ss 81-83.

[3] Standing Orders of the House of Representatives, SO 396(k). The phrase 'offering indignities' is used in Erskine May's Parliamentary Practice (22nd ed, 1997) 117.

[4] R v Richards ex parte Fitzpatrick and Brown [1955] HCA 36; (1954) 92 CLR 157.

[5] (1537) 2 Dyer's Reports 344.

[6] Columbus v Independent News Ltd ( High Court, Auckland, CP 600/98, 7 April 2000).

[7] Barendt et al Libel and The Media, The Chilling Effect, Oxford, 1997.

[8] (1960) 13 Current Legal Problems 135, 137.

[9] [2000] NZCA 95; [2000] 3 NZLR 385.

[10] Crimes Act 1961 ss 216A, 216B (amended since the lecture by the Crimes Amendment Act 2003).

[11] Private Investigators and Security Guards Act 1974 s39(1).

[12] Summary Offences Act 1981 s30.

[13] Postal Services Act 1998 s23. Computer hacking became an offence when the Crimes Amendment Bill (No 6), before Parliament at the time of this lecture, was passed. (See now Crimes Act 1961 ss 248-254 (as amended in 2003)).

[14] Kaye v Robertson [1990] EWCA Civ 21; [1991] FSR 62. 15 Ibid per Bingham LJ 70.

[16] Cooley, Torts (2nd ed 1888), Callaghan & Co, Chicago.

[17] European Convention on Human Rights art 8.

[18] The BSA issues an annual report which summarises its decisions in tabular form. In 1998 Michael Stace published a book summarising the BSA's privacy decisions up till that date: Privacy, Interpreting the Broadcasting Standards Authority's Decisions (1998).

[19] P v D [2000] 2 NZLR 591.

[20] Douglas v Hello! Ltd [2003] 3 All ER 996.

[21] Hosking v Runting [2003] NZHC 416; [2003] 3 NZLR 385.

[22] Above, n 19.

[23] Abbott v The Press ( High Court, Christchurch, 13 December 2002).

[24] BSA 1996-172. The television company acknowledged it had erred in disclosing this information, which was not relevant to the item.

[25] BSA 1996 - 004, 005, 006.

[26] BSA 2002 - 032.

[27] TV3 Network Services Ltd v Ecpat New Zealand Ltd [2003] NZAR 501.

[28] Compare principles three and five.

[29] (1994) 47(2) Current Legal Problems 41, 50.

[30] A v B [2002] EWCA Civ 337; [2002] EMLR 21.

[31] Campbell v MGN Ltd [2002] EWCA Civ 1373; [2003] 2 WLR 80.

[32] Re Victim X [2003] NZCA 102; [2003] 3 NZLR 220.

[33] David A Anderson in Protecting Privacy, Markesinis (ed) (1999) 139.

[34] A United Kingdom parliamentary committee has, since the date of this lecture, recommended against legislating on privacy, saying that it 'strongly believes that a free press is vital to the health of our democracy' and that 'Government should not seek to intervene in any way in what a magazine or newspaper chooses to publish'. (See parliamentary committees/culture media and sport/cm 5985.cfm) . Compare Lord Hoffmann in Wainwright v Home Office [2003] UKHL 53, 16 October 2003: '...this is an area which requires a detailed approach which can be achieved only by legislation rather than the broad brush of common law principle.'

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