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We all need, to varying degrees, the ability to withdraw for the world and find seclusion away from the concern of other human beings.[1] Most academics agree that this is a basic psychological and social need, the loss of which will erode our happiness and ability to participate in social life. But while we may not want others to know about our personal details, we are strangely fascinated by knowing the details of others. Today more than ever news stories probe the tragic, the triumphant and the mundane for the enjoyment and amusement of other people. In the name of free speech and democracy, we can observe victims of a war in real time; we hear the sordid details of someone's extra-marital affair; and we know every last detail of the local traffic accident or plane crash. While there are regulatory frameworks to set boundaries for the conduct of the Press and other media in their news gathering activities,[2] until very recently there was no separate civil action available to a person who had experienced a violation of his or her privacy.
As we enter the twenty-first century, the thirst for information (or 'infotainment' as the case may be) consumes our privacy in an unprecedented way. Modern technology has combined with an insatiable hunger on the part of the public to know more facts, more figures and more sensational gossip about others. But the desire of most people for some right of privacy in the face of this increasingly zealous media has made the ability to gather and publish information about individuals' personal lives a topic of some concern.[3]
The focus of this paper will be the common law's response to these concerns. The New Zealand courts have responded with recognition of a separate tort of infringement of privacy relating to the 'unwarranted public disclosure of private facts'.[4] In contrast, in the United Kingdom the courts have extended the action for breach of confidence to create an indirect means for the protection of privacy interests. This paper will focus upon these two causes of action as methods of privacy protection, and the potential differences between them. The issue has gained importance in the New Zealand context with the recent High Court decision of Hosking v Runting[5] in which the judge showed support for the New Zealand courts to abandon the existing tort of privacy in this country and develop our own breach of confidence action in a similar fashion to the United Kingdom.
Following a brief examination of the historical interest and recognition of privacy interests both in New Zealand and abroad, discussion will turn to the difficulties that the Hosking decision presents to the developing tort of privacy in this country. It will be argued that departure from the New Zealand authorities at this stage in the tort's development is contrary to the conventions of the common law, and that recent cases in the United Kingdom have shown confusion and inconsistency of reasoning among judges. Lastly, it will be argued that the breach of confidence action is a conceptually inappropriate alternative to the separate tort of privacy as it exists in this country. The possibility that the conceptual differences between the two causes of action could threaten the effective protection of privacy where breach of confidence is used will be addressed in relation to two particular kinds of case. The result, it is hoped, will put to rest the misgivings expressed in Hosking toward a privacy tort, and thereby dismiss the prospect of an extended law on breach of confidence at the present time in this country.
The importance ascribed in Western societies to a sphere of privacy is a distinctively modern phenomenon. It can be compared with the Greeks' association of privacy with deprivation of the 'highest human status',[6] and can be traced to the liberalist notion of a personal zone free from the encroachment of the modern state.
In today's liberal democracy, privacy has in fact been described as 'one of the most important human rights of the modern age'.[7] According to Bloustein:
The man who is compelled to live every minute of his life among others and whose every need, thought, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. Such an individual merges with the mass... [S]uch a being, although sentient, is fungible; he is not an individual.[8]
The demarcation of a 'private zone' thus maintains the individual's interest in preserving human dignity and individuality. It marks a sphere into which the community cannot intrude upon the individual,[9] the importance of which is found in the attainment of certain social needs. As Charles Fried argues, privacy provides the 'moral capital' for a human being's experience of respect, love, friendship and trust. It allows forthe 'sharing of information about one's actions, beliefs, or emotions which one does not share with all'.[10]
Today, the preservation of one's 'moral capital' is more difficult than ever before. With devices such as the parabolic microphone and telephoto lens, we can now gather information about others without the need for intrusion by physical means. A detailed personal profile of an individual can be compiled virtually instantaneously using the internet, or worse, by intercepting that person's email, internet 'chatting' or telephone communications. The development of this ability has corresponded with a much increased capacity to disseminate information. Information can he forwarded to, or 'posted' on the web to an audience of billions virtually instantaneously.[11] And in the 'global village', geography is no obstacle to communication. Whereas a piece of gossip might once have been confined to the modest readership of the local rag, it is now almost impossible to ascertain the extent that an item has been disseminated. As one United States Supreme Court judge observed 'we are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations.'[12]
The ability to collect, collate and disseminate information is compounded by the changes that have occurred in media activities over the same period. The media is increasingly involved in 'investigative reporting'; the results of which can reveal humiliating and distressing facts about particular individuals. While, at their best, as one English Member of Parliament observed, 'the media expose crooks, spies and fraudsters... at their worst they intrude into private lives when no public interest is served'.[13] An example of the latter in this country is the appearance of tabloid websites featuring the intimate details of local celebrities' lives. The public benefit in knowing the contents of a public figure's rubbish bin or seeing photographs of him or her gardening on private property is dubious at best. Access to this sort of information has been improved with changes to the modem lifestyle generally. Physically, we now live much closer together. In New Zealand, the quarter acre section is rapidly being replaced by high-density developments with thin walls and little private space. From a balcony overlooking the next apartment's 'private courtyard', your neighbour's personal 'business' can easily become your own.
Most will agree that some degree of intrusion into one's private life is a necessary incident of living in a modern industrial society. At the same time, we wish to keep some measure of secrecy in our lives. The notion that we must surrender the right to keep our hopes, desires, intimacies and fears secret in exchange for our participation in an open democracy is no less than abhorrent. As one American writer wrote: 'we are beginning to learn how much may be lost in a culture of transparency: the capacity for creativity and eccentricity, for the development of the self and soul, for understanding, friendship, and even love... we need more shades and more blinds and more virtual curtains.'[14]
In most countries, the law has been slow to respond to this plea for privacy protection. While parliaments, judges and academics have grappled with the question, translation of a right of privacy into legal doctrine has proven a difficult and divisive task. Some of the reasons for the disparity of views on privacy protection are examined below.
In part, disagreement has arisen out of the traditional reluctance of the courts to compensate plaintiffs for emotional harm. An invasion of privacy can result in suffering as acute as that produced by a bodily injury,[15] but injury to human dignity is a form of mental distress. Traditionally, the courts have shown a reluctance to provide a remedy for this type of claim, for fear that an avalanche of fanciful claims will result.[16] At first blush the notion that an action could be brought for the publicity of true facts is an unusual concept in itself even though, arguably, the disclosure of something embarrassing that is true is more harmful than if it were false.
The difficulties in framing a workable definition for the concept of privacy have similarly thwarted its recognition at law. In 1972, an English committee expressed the view that privacy was incapable of a satisfactory definition. Of the definitions it considered, the committee believed 'either they go very wide, equating the right to privacy with the right to be left alone, or they boil down to a catalogue of assorted values to which the adjective 'private' or 'personal' can reasonably, but not exclusively, be attached'.[17] The lack of consensus on the definition of privacy is not for want of effort. Winfield defined 'infringement of privacy' as 'unauthorised interference with a person's seclusion of himself or of his property from the public.'[18] Much earlier, Thomas Cooley (an American academic and later judge) provided the widely accepted phrase, 'the right to be left alone'.[19] Ruth Gavison's conception of privacy as 'limited accessibility' has also attracted interest.[20] She argues that an individual's loss of privacy can be objectively measured 'as others obtain information' about him, 'pay attention to him, or gain access to him'.[21] Critics however, argue that a loss of privacy must be limited to information that is intimate or related to the individual's identity. Any attempt at a 'neutral' definition such as that proposed by Gavison, loses its 'intuitive meaning'.[22]
The difficulty in defining a right of privacy does not derogate from the importance of its legal protection. A later English parliamentary committee was satisfied that a workable legal definition could be reached, and adopted a definition similar to the Younger Committee in its first report: 'the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information.'[23]
Assuming that such a definition is suitable, its application to particular cases presents further difficulty. What is 'private' is an inherently subjective concept. Few generalisations can be made about it. As a legal right, it requires the particular judge(s) to make value judgments about the offensiveness of the subject matter and the legitimacy of the public's interest in it. As the Chief Justice of the High Court of Australia noted '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'.[24]
Are photographs of a person mourning the death of a loved one suitable for publication in a newspaper? What of a person severely injured after an accident? Or consider whether the fact that a person is a homosexual, or that he or she has had a personal failure is a private matter deserving of legal protection. The imprecision of 'privacy' is partly due to its reliance upon the prevailing standards of taste and decency of the particular society. It is said that the article that sparked the privacy tort in the United States was written because of the outrage of one of the authors that a newspaper had reported on his daughter's private wedding.[25] Such a report might be viewed differently today. Similarly, attitudes to single parenthood, infidelity, divorce, and mental and physical illnesses have changed dramatically. Nowhere is this more apparent than the candour with which the media now discuss people's sexual relations.
Moreover, even at a given period of time, as Post remarks, 'the common law tort purports to speak for a community', but the 'community' is not, and will never be, homogenous.[26] In this sense, the plurality of ages, ethnicities, religions, and political beliefs in our society means that to speak of the 'community', deviant communities must be displaced.[27] While judges are familiar with legal tests which require their subjective judgment, there is nevertheless a concern in respect of a privacy law that they will be required to assume a 'social engineering' role.[28] To this end, one commentator has suggested that privacy is not an interest that is suitable for legal protection in itself.[29]
Should the definitional problems of privacy be surmounted, its recognition at law must be balanced with the competing but nonetheless fundamental interest of freedom of expression. Section 14 of the New Zealand Bill of Rights Act 1990 protects freedom of expression in this country, a value described by one American judge as 'the matrix, the indispensable condition of nearly every other form of freedom' .[30] The media plays a crucial role in educating, informing and entertaining the community, and any restriction on it threatens this role. Some argue that the wider benefits of free speech outweigh the injustices of a particular case. As Lord Justice Hoffmann once said, '...a freedom which is restricted to what Judges think to be responsible or in the public interest is no freedom'.[31] Prior restraint where the facts sought to be published are true, is clearly a major limitation on press freedom. There is a risk in this context that such restraint will be excessive and impose limitations even where there is a public benefit in the information receiving publicity. Of further concern is the threat posed by a right of privacy to the prior restraint rule developed in relation to defamation law. The careful balance developed by the courts to protect free speech in the context of actionable untrue statements may be tipped should litigation be permitted for the publication of those which are true.[32]
Ironically, bringing a privacy action can result in greater publicity to the plaintiff than did the actions on which the grievance is based. Notwithstanding, in recent years, the courts in both New Zealand and further a field have shown a readiness to overcome the obstacles involved and afford some legal recognition at least, to the concept of the 'right to be let alone'. It is this recognition to which discussion will now turn.
While France[33] and Germany[34] have created specific protections for privacy, the origin of the common law tort of privacy is found in a seminal article of Samuel Warren and Louis Brandeis published in 1890.[35] Concerned with the physical intrusion into a person's private affairs by the press and others, they argued for legal recognition of 'the right of Privacy, as a part of the more general right to the immunity of the person - the right to one's personality'.[36] Their argument was based on English cases brought under the laws of breach of confidence, property, copyright and defamation which collectively, were seen to protect the common interest of a right of privacy. Warren and Brandeis's thesis has been said to enjoy 'the unique distinction of having initiated and theoretically outlined a new field of jurisprudence in the United States.[37] It sparked a volume of case law and literature,[38] and in 1960 William Prosser sought to bring order to the 'haystack in a hurricane' by identifying four distinct torts under the one umbrella privacy tort. The four torts were as follows:[39] intrusion upon another's seclusion or solitude; public disclosure of embarrassing private facts about another; appropriation of another's name or likeness; and publicity that unreasonably places another in a false light in the public eye.
The efficacy of the tort in the United States has however, been questioned, and numerous concerns have been raised as to the consistency in its application among cases.[40] A body of opinion does not even see Prosser's third and fourth categories as involving privacy at all, and the overlap between a false light action and the law of defamation is considered substantial.[41] Partly due to this criticism, the courts in other common law countries have not matched the United States' development of a full-blown privacy tort.[42] They have instead focused upon the first and second categories of Prosser's classification, interests which are seen to symbolise the core interests of a right of privacy. This is the case in New Zealand.
Historically in New Zealand, the legal protection for plaintiffs who had suffered an invasion of their privacy in either of Prosser's first two categories was fragmentary in form. Plaintiffs had to resort to the incidental protection of privacy afforded by existing causes of action in nuisance, trespass, defamation, passing off, copyright, harassment and breach of confidence. If a plaintiff could not prove the violation of another legal right, he or she was left without legal remedy.
The risk that deserving privacy plaintiffs would 'slip through the cracks' in the law was graphically illustrated in the English case of Kaye v Robertson [43] A journalist gained unauthorised entry into a hospital and purported to conduct an interview with a severely injured Mr Kaye (a celebrity actor) and photograph him in his hospital bed. The photo was published on the front page of the defendants' 'lurid and sensational'[44] publication, but Mr Kaye had no recollection of the event. The judges in the English Court of Appeal expressed regret at the lack of remedy for the claimant since, as Bingham LJ remarked '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'.[45]
But English law did not recognise an enforceable right of privacy, however gross the invasion of it.[46] Their Honours concluded that the right had been so long disregarded by the common law that it could only be recognised by the legislature.[47] The case instead showed the legal contortions necessary to protect any right of privacy that Mr Kaye held. Four causes of action were considered: passing off; trespass to the person; libel; and malicious falsehood. Different requirements attaching to the first three precluded the claimant succeeding under them.[48]
Kaye succeeded 'by the skin of his teeth'[49] on the grounds of malicious falsehood, a difficult, and rarely used tort. But use of the tort in the case was no reflection of the injury. The test of the action is that the words are false, and because the publication falsely stated the photos and interviews were taken with the claimant's consent, the action could succeed. Yet the true invasion involved the claimant's right to be let alone, away from the public eye whilst recovering from a distressing accident. The prevention of the disclosure of private information has also been accomplished by the courts under several other heads of liability. Copyright, for instance, succeeded to protect the publication of some drawings made by a royal couple in the middle of the nineteenth century.[50] The law of defamation can also assist a claimant, but it is limited by the fact that at common law, truth is a complete defence to defamation. Thus, it cannot prevent the truth-based 'resurrection' of a plaintiff's past, however personal or embarrassing the revelation is.
In cases where breach of confidence has been used, protection has depended on the receipt of confidential information in the course of a confidential relationship. In Argyll v Argyll[51] for example, it was argued that an implied obligation of confidence had arisen where a man attempted to disclose the details of his marital affairs. The requirement that the plaintiff seeking redress for a violation of privacy must prove the existence of an express or implied relationship of confidentiality is due to the original formulation of the doctrine to protect commercial interests. No remedy was available where a plaintiff was unable to prove that a relationship existed. This will be explained below.
So far as legislation is concerned, no general right of privacy has ever been incorporated into law by the New Zealand Parliament. Although a right of privacy was not included in the New Zealand Bill of Rights Act 1990 the Court of Appeal has shown sympathy towards privacy interests under the other guarantees contained in the Act.[52] Privacy has also been recognised as a right in several international human rights instruments to which New Zealand is a signatory.[53] And other pieces of legislation also provide for privacy in discrete areas, the most significant of which are the Broadcasting Act 1989 and the Privacy Act 1993. Neither of these confer tortious rights or duties. However, the latter regulates the collection, use and dissemination of personal information in both the private and public sectors,[54] but the news media are exempt from it in relation to their news activities. While the Broadcasting Act imposes duties on broadcasters to respect the privacy principles developed by the Broadcasting Standards Authority (the BSA),[55] it is a regulatory regime and applies only to broadcasting media. It does not provide for a complaints mechanism against other members of the media, or private defendants. Furthermore, the BSA possesses an 'after the event'jurisdiction. It provides no remedy for plaintiffs wishing to prevent the broadcast of material invasive of their privacy.[56]
Notwithstanding the limited legislative recognition of a right of privacy in this country, the common law has fared better. In fact, until recently, it was considered settled (albeit at an infant stage of development) that a common law tort of infringement of privacy involving the unwarranted publication of private facts existed in New Zealand.[57] The High Court judgment of Nicholson J in P v D[58] followed a number of dicta to this effect, and the Court of Appeal had accepted in an earlier decision that there was at least an arguable case for the tort's existence.[59]
In P v D, substantive discussion on a possible tort of privacy was made in this country. P sought an interim injunction to prevent the defendant journalist and newspaper publishing information that he or she had been treated at a psychiatric hospital and had been attended to by a police officer in an emergency medical situation.
Nicholson J considered that a tort of infringement of privacy encompassing public disclosure of private facts did exist in New Zealand, and he awarded an injunction to the plaintiff on this basis.[60] His Honour adopted the formulation of the tort of breach of privacy set out by Gallen J in Bradley v Wingnut Films Ltd.[61] This consisted of three factors:
i) That the disclosure of the private facts must be a public disclosure and not a private one.
ii) Facts disclosed to the public must be private facts and not public ones,
iii) The matter made public must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities.
Nicholson J added a fourth factor concerning the nature and extent of legitimate public interest in having the information disclosed.[62] This element, his Honour thought, might involve anything from 'idle curiosity and amusement' to 'assessment of character, credibility and competence' .[63] In Bradley,[64] the plaintiff had sought an injunction to restrain the defendant film producer from releasing fourteen seconds of background footage contained in a horror film of the plaintiff s burial plot in a public graveyard. One of several causes of action pleaded was breach of privacy. Gallen J noted the strong statements from the New Zealand High Court in favour of a tort of privacy in New Zealand.[65] In particular, he referred to
Tucker v News Media Ownership Ltd.[66] There, an interim injunction was sought and granted against certain media organisations from publishing details of the criminal past of a man who sought public donations for a life saving heart transplant operation. The High Court had held that it was arguable a tort of invasion of privacy did exist. The gist of the action, according to Jeffries J, 'unlike defamation, is not injury to character or reputation, but to one's feelings and peace of mind'. This could result from the 'unwarranted publication of intimate details of the plaintiff's private life which are outside the realm of legitimate public concern or curiosity'.[67]
The Court of Appeal accepted that the matter raised arguable and important issues, and members of the court upheld the interim injunction. But by the time the matter was referred back to the High Court for full trial, details had already been made public by other sources, and thus it was unnecessary for McGechan J to consider the matter fully. Nevertheless, he stated:
.. .albeit with caution and hesitation in the absence of considered argument on the point and the warnings as to difficulty sounded by the Court of Appeal, I go further. I support the introduction into the New Zealand common law of a tort covering invasion of personal privacy at least by public disclosure of private facts.[68]
Noting McGechan J's support for the tort, Gallen J in Bradley added 'I too am prepared to accept that such a cause of action forms part of the law of this country but I also accept at this stage of its development its extent should be regarded with caution'.[69] Such caution was necessary because of the difficulty in formulating bounds on the tort to ensure that the rights and concerns of the individual are balanced against the significance in a free country of freedom of expression.[70] The facts of Bradley did not readily lend themselves to any of Prosser's four torts but came closest to the second: the publication of a private fact. The matter sought to be kept private was the tombstone in the public cemetery. Applying Prosser's three requirements however, the judge was of the view that 'there could scarcely be anything less private than a tombstone in a private cemetery'.[71] It therefore failed to satisfy the private fact requirement. Gallen J added however, that the fact that something occurred or existed in public did not necessarily mean that it should receive widespread publicity, provided that it did not involve a matter of public concern. Nevertheless, the facts of the case failed to meet the 'highly offensive' requirement also.
Six years later in P v D, Nicholson J held that publication of the plaintiff's treatment for mental illness would amount to an invasion of privacy. His Honour said that treatment at a psychiatric hospital was clearly a private fact, and disclosure of that information by a newspaper or other media would be public disclosure. The 'highly offensive' requirement involved an objective test, and in spite of the increasingly enlightened public attitude towards mental illness, his Honour felt that publication that a person had been a patient in a psychiatric hospital would still be highly offensive and objectionable to a reasonable person of ordinary sensibilities. The giving of emergency medical aid could not be so classified since on its own the statement could relate to a wide range of situations. In terms of the public interest. Nicholson J saw no basis for the concern that the plaintiff's past or present mental health would affect his ability to carry out his occupation or that it was necessary for the public to assess his character, credibility or competence. The public interest in disclosure was therefore minimal.[72] The privacy action was thus successful and Nicholson J issued an injunction against publication of any information that P had been treated at a psychiatric hospital until further order of the Court.[73] There has been little definitive discussion of the tort by the courts since Nicholson J's judgment. In the High Court, an application for an interim injunction to restrain a newspaper from publishing the identity of a police officer who shot a man in a public street was refused. One of the causes of action was based on privacy, but Doogue and Robertson JJ considered that a 'public act in a public place by a public officer' could not give rise to a claim of breach of privacy.[74]
In the District Court, an action based upon privacy in L v G[75] succeeded where the plaintiff, who was a sex worker, had had sexual relations with the defendant client. The client published photographs of the plaintiff in an adult lifestyle magazine allegedly without the plaintiff's consent. Abbott J accepted that the requirements of a tort of breach of privacy were made out, even though the plaintiff was not identifiable in the publication. Significantly, for the first time in this country, damages rather than an injunction were granted for the breach.
Notwithstanding its relatively slow development since the discussion in P v D, a tort of infringement of privacy has clearly been considered part of New Zealand law since that decision, at least in so far as it concerns the public disclosure of private facts. There has been no indication that the tort extends to either the third or the fourth categories identified by Prosser, although there may be more sympathy for protection of the first category.[76] The relatively settled nature of the tort's existence however, was turned on its head by the 2003 high-profile decision of Hosking v Runting.[77] In order to understand the position taken by the High Court in that case, it is firstly necessary to examine the course of privacy law in the United Kingdom.
Prior to Kaye v Robertson,[78] a number of committees had investigated what type of remedy might fill the 'monstrous gap' in English law. It was the conclusion of the Younger Committee[79] that the development of breach of confidence was the most suitable way in which to protect privacy without creating an actionable right of privacy in itself. The traditional requirements for a successful confidence action were set out in Coco v A N Clark (Engineers) Ltd:[80]
a) The information must have the necessary quality of confidence about it
b) It must have been imparted in circumstances imparting an obligation of confidence
c) There must have been an unauthorised use of that information to the detriment of the party communicating it (although there has since been doubt as to whether this is really necessary).
The confidence action had been used in the courts to protect personal, as well as commercial confidences. For example, it had protected confidential discussions between friends on sexual matters[81] ; the disclosure of personal documents of the royal family; [82] health records;[83] and confidential communications between husband and wife.[84] The impediment to the free use of the breach of confidence action as a de facto privacy remedy in this manner, as noted above, was the second requirement outlined in Coco. There had to be an understanding of confidence between the parties that the information entrusted by one party to the other was to remain confidential. In the majority of cases involving the disclosure of personal facts, no such relationship of confidence exists.
A series of dicta suggested however, that a relaxation of the relationship element of a confidence action may be appropriate. During the Spycatcher[85] litigation, Lord Goff noted that the duty of confidence lay 'in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained'.[86] According to his Lordship, an obligation of confidence could thus be inferred in circumstances 'beloved of law teachers, where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by'.[87]
Five years later, Laws J in Hellewell v Chief Constable of Derbyshire stated, obiter:
If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name attached to the cause of action would be breach of confidence.[88]
The extension of the English law of confidence to remove the relationship element in this manner was accelerated by the enactment of the Human Rights Act 1998 (the HRA). The HRA incorporates the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) into domestic law. Articles 8 and 10 are relevant to a discussion of legal protection for a right to privacy. Article 8 (1) of the Convention provides that 'everyone has the right to respect for his private and family life, his home and his correspondence'. Article 10(1) provides:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
Since its incorporation into English law, the courts have been obliged to act compatibly with the principles enshrined in the Convention.[89] Cases have confirmed that the appropriate way to do so in relation to Article 8 and the unwanted disclosure of private information is by developing the existing action for breach of confidence. The dicta of Lord Goff has been followed by a number of judicial statements to the same effect. It is now clear that an express or implied obligation is no longer necessary for a duty of confidence to arise. Rather, the duty can be inferred from the nature of the information and circumstances of the case. A clear example of a case in which a duty would be imposed arises where information has been obtained by surreptitious means or through deception or subterfuge.[90] To some extent, cases since the HRA came into force have clarified the scope of this extended breach of confidence action. In Douglas v Hello! Ltd[91] the English Court of Appeal overturned an interim injunction initially granted against the publishers of a magazine from publishing photographs of the wedding of the plaintiffs who had sold the exclusive rights to publish images of the event to the third plaintiffs, a rival magazine. Strict security was arranged at the wedding, but photographs were nevertheless taken surreptitiously and sold to the defendant publishers. The Court thought that the plaintiffs were likely to establish that publication should not be allowed on confidentiality grounds, but was not satisfied that the claim would outweigh the competing interest in freedom of expression.[92] Reflecting on the dicta before the HRA came into force to the effect that a pre-existing relationship between the parties is not required for a confidence suit, Keene LJ expressed the view that 'there would seem to be merit in recognising that the original concept of breach of confidence has in the particular category of case now developed into something different from the commercial and employment relationships with which confidentiality is mainly concerned.'[93]
According to Keene LJ, the nature of the subject matter or the circumstances of the defendant's activities may suffice in some instances to give rise to a suit in confidence. In this context, his Honour thought that had the plaintiff in Kaye brought a suit in confidence, the result may have been different.[94] A year later in A v B plc[95] an application by the claimant to restrain a newspaper from publishing details given to it by a woman with whom he had had an affair was allowed by the trial judge. On appeal, the English Court of Appeal overturned the injunctions and took the opportunity to examine the requirements of a duty of confidence. Importantly, Lord Wolf stated that 'a duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know that the other person can reasonably expect his privacy to be protected.'[96] The wording of this paragraph implied that the requirement of an obligation of confidentiality could arise simply on the basis of the obviously confidential nature of the information itself. As a result, the second element of the Coco action (that the information has been imparted in confidence) is ultimately merged with the first. Some commentators argue that as a result, an action for breach of privacy has effectively come about in England, whether or not it continued to be described as 'breach of confidence'. [97] They point to Keene LJ's observation in Douglas A that 'whether the resulting liability is described as being for breach of confidence or for breach of a right to privacy may be little more than deciding what label is to be attached to the cause of action'.[98] When the HRA first came into force, the possibility that the courts would go further and recognise a freestanding tort of invasion of privacy was given strength by dictum of Sedley LJ in the same case. His Honour observed that:
[We] have reached a point at which it can be said with confidence that the law recognises and will appropriately protect a right of personal privacy... The law no longer needs to construct an artificial relationship between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy. [99]
A differently constituted Court of Appeal in Campbell vMGN Ltd[100] also showed sympathy for a more direct approach to privacy protection. Lord Phillips MR stated:
The development of the law of confidentiality since the Human Rights Act 1998 came into force has seen information described as "confidential" not where it has been confided by one person to another, but where it relates to an aspect of an individual's private life which he does not choose to make public. We consider that the unjustifiable publication of such information would better be described as breach of privacy rather than breach of confidence.[101]
The early hopes for a freestanding tort of infringement of privacy in England, encouraged by these dicta in Douglas and Campbell, have been dispelled in subsequent cases.[102] The formulation of any generic privacy tort was most recently denied by the House of Lords in Secretary of State v Wainwright.[103] While identifying privacy as an underlying value that will be protected, their Lordships showed their preference for the extension of breach of confidence in order to do so. Lord Hoffmann expressed the view that:
[T]here seems to me a great difference between identifying privacy as a value which underlies the existence of a rule of law (and may point the direction in which the law II should develop) and privacy as a principle of law in itself... 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.[104]
Thus, while the English courts have moved to protect privacy interests to comply with the HRA, it seems that their 'weapon of choice'[105] to do so is the action for breach of confidence. In Wainwright, Lord Hoffmann read down Sedley LJ's comments as 'no more (although certainly no less) than a plea for the extension or possibly renaming of the old action for breach of confidence'.[106] Their Lordships took a similarly narrow view of the European Court of Human Rights decision in Peck v United Kingdom.[107]The decision has been used by privacy law advocates to show that a general tort of invasion of privacy was needed to fill the gaps in existing remedies.[108] The European Court had considered that the wide publication of the plaintiff in a public street, visibly distressed and holding a kitchen knife, constituted a serious interference with the applicant's right to respect for his private life. The law of breach of confidence, the Court said, would not provide adequate redress under English law. However, Lord Hoffman in Wainwright considered that the case merely showed the need for a remedy for unauthorised use of CCTV materials. It did not require the creation of a law to deal with 'every imaginable kind of invasion of privacy'.[109] The treatment of the Peck decision in this way shows a basic, but important, feature of the obligations under the European Convention. Article 8(1) does not require that there be a directly enforceable protection against an individual's right of privacy. The concern of the courts is simply whether the law can give adequate redress in a particular case where it believes that an invasion of privacy has occurred. Where the enforcement of private and family life by other means is already available, there is no need for the courts to recognise any freestanding law of privacy.[110] The potential for the breach of confidence doctrine to protect interests far outside its original formulation was illustrated in the case of Venables v News Group Newspapers,[111] where injunctions against the world based on breach of confidence were granted preventing publication by any media outlet of information which might reveal the identity and location of the young killers of Jamie Bulger. There were clearly no circumstances importing an obligation of confidence in the case, as the court expressly recognised. The injunction could apply regardless of how the information was obtained.[112] Privacy law in England has thus followed a very different path from that in New Zealand. The former has employed a pre-existing action to respond to its obligations under domestic human rights legislation. In this country, our courts have developed a separate tort to protect against the unwarranted disclosure of private facts. It is against this background that the New Zealand High Court judgment of Hosking v Runting[113] was received with some surprise early last year.
Hosking involved an application by Mike Hosking, a well-known television personality, and his wife to restrain a women's magazine from publishing photographs taken of their two daughters being pushed in their stroller by Mrs Hosking in Newmarket on a busy Saturday morning. Mrs Hosking was unaware that the photos were being taken at the time. When she later learned that the photographs had been taken, with a view to publication, she made it clear to the publishers that she opposed the publication of the photographs, and was concerned for the children's safety should the photographs be published.
Mr and Mrs Hosking subsequently issued proceedings alleging that the taking of the photographs and or their publication amounted to a breach of their children's privacy. Since the photographs were taken while the children were in a public place, it was accepted by the plaintiffs that the images could not be said to be private or confidential, and therefore a claim in breach of confidence could not be sustained. Counsel for the plaintiffs instead based their privacy claim on the decision of Nicholson J in P v D[114] and the Supreme Court of Canada decision in Les Editions Vice- Versa Inc vAubry and Canadian Broadcasting Corporation.[115]
They submitted that a tort of privacy had been recognised in New Zealand, notwithstanding uncertainty as to its ambit. The plaintiffs also relied on the development of the law of privacy in the United States, and the international instruments protecting privacy. They argued that there were difficulties in applying the concept of breach of confidence beyond existing relationships as the English Court of Appeal had done. For the defendants, it was submitted that a tort of privacy should not be recognised in New Zealand. Alternatively, the facts of the case did not involve the public disclosure of private facts, and therefore did not satisfy the criteria identified by existing New Zealand authorities.
In a reserved judgment, Randerson J concluded on the facts of the case that:
The plaintiff's claim must fail since the law in New Zealand does not recognise a tortious cause of action in privacy based on the publication of photographs taken in a public place. I also find that the plaintiff's case does not fulfil the criteria set out in previous decisions of this court which have held there is a tort of invasion of privacy arising from the public disclosure of private information.[116]
Randerson J rejected a tort of privacy in so far as it concerned the publication of photographs taken in a private place. The plaintiff's submission necessitated an extension of the tort beyond the present formulation in New Zealand, suggesting that the right of privacy encompassed 'a right to be left alone; a right to anonymity; and a right to image'. Randerson J considered that they did not fall into any of the four categories defined in the United States Restatement either. The judge further accepted the defendant's submission that shopping in Newmarket on a Saturday prior to Christmas was 'the last place one would seek solitude or seclusion'.[117] As a matter of logic, there is no general prohibition against the taking of photographs in a public place. It is one of the ordinary incidents of living in a free community. While there may be exceptions to this rule (an issue which this paper will address),[118] the facts in Hosking were unexceptional. Furthermore, as Randerson J noted, they fell well short of being 'highly offensive to reasonable persons', the test to which the tort is subject in the United States.[119] The basis for the plaintiff's application in Hosking was really the privacy of children. The claim for a general ban on the defendant publishing any unauthorised photos of the children until the age of 18 lay on the boundary of any form of a tort of invasion of privacy, and whether the law should give special protection to children in other respects is an issue that falls outside the scope of this paper.[120] More relevant for present purposes is the judge's treatment of a tort of infringement of privacy in New Zealand. It is this matter to which discussion will now turn.
In no uncertain terms, Randerson J rejected the case law supporting a tort of privacy in New Zealand to date.' In the light of subsequent development of the law elsewhere and for the other reasons elaborated in this judgment' he stated, 'I would respectfully differ from the conclusions reached in those earlier decisions'.[121] His Honour cited with approval the words of Lord Woolf in the English case of A v B plc that '[i]n the great majority of situations, if not all situations, where protection of privacy is justified ... an action for breach of confidence now will, where this is appropriate, provide the necessary protection.'[122]
Randerson J thought it could be doubted whether the earlier New Zealand cases would have been decided the same way had the judges known of the development of the law of confidence in the United Kingdom. His Honour considered that 'any development of the law of privacy by the Courts should build incrementally on existing remedies, particularly the equitable action for breach of confidence. If gaps in privacy law warrant further attention, Parliament should provide the remedy.'[123] This passage makes Randerson J's final preference for the protection of Privacy interests in this country uncertain. Presumably, his comments in support of a legislative remedy are directed at privacy cases that do not involve the publication of private facts, since the body of his judgment shows support for the 'incremental' development of the law by the courts, through the extension of the law of confidence. His 'rear-view' suggestion that earlier New Zealand cases would have been decided differently had the judges anticipated the later direction taken by the courts in the United Kingdom was inappropriate at this stage in the tort's development, and of no assistance to the law as it stands today.[124] The preference for New Zealand to follow the United Kingdom developments is open to critique in a number of other aspects. Some of these are outlined in the discussion that follows.
One factor that seems to have influenced Randerson J's preference for the extension of breach of confidence to protect interests in privacy is the need for common law judges to avoid 'making' the law. His Honour cited with approval comments of Buxton LJ in Wainwright,[125] who considered that in 'being invited to recognise the existence of a tort of breach of privacy, we are indeed being invited to make the law, and not merely to apply it.'[126] But Randerson J went on to emphasise the need for 'principled development' of existing remedies.[127] Accordingly, it is unclear whether the Judge favours legislative intervention, or the development of existing remedies to protect against the public disclosure of private facts, or some combination of the two.
The comments lack further clarity in their reference to 'existing' remedies. Presumably, Randerson J is stating a preference for the extension of breach of confidence in this regard.
Yet in New Zealand, the courts have remained faithful to the original design of the law on breach of confidence to cater for commercial confidences. It remains the case that information will only be protected where it has been imparted in circumstances importing an obligation of confidence.[128] Thus, the development of an 'existing remedy' in this country actually means the development of a tort of breach of privacy, and not the law of confidence. Randerson J's preference for breach of confidence seems to have taken insufficient account of the distinct developments in New Zealand case law. The position of the English courts is further distinguishable by their predecessors' denial of a common law right of privacy.[129] They have negotiated this precedent by developing, incrementally, the existing cause of action of breach of confidence and, given this background, they might indeed be 'making' the law were they to recognise a freestanding tort, at this point in time. Kaye v Robertson[130] is not however, a barrier to the recognition of a tort of privacy in this country. A number of previous New Zealand authorities have given recognition to the right of the individual to some private space.
Yet according to Randerson J, ' [i]t would not involve any great extension of the cases for a court to find the nature of the material in P v D was such as to require the defendant to respect the plaintiff's confidence'.[131] With all due respect, this suggestion lacks foundation in the case law. The line of cases since Tucker have mapped an independent path for New Zealand privacy law, and the case law since has been developed incrementally, case-by-case. These developments, when considered with the narrow development of breach of confidence in this country to date means that it would be a fundamental departure from New Zealand authority to extend the law of confidence in this manner. And it would mean the development of a legal remedy where the interests are already adequately covered by an existing cause of action, a result to be avoided in the common law.
Other reservations expressed in relation to the judicial recognition of a right of privacy in England require qualification in the New Zealand context. Discussion by judges in England has centred upon the creation of a 'high-level principle of invasion of privacy'. The courts there have perceived 'conceptual problems' with a 'blockbuster tort',[132] mainly because of the United States experience. The latter has fuelled concerns that such a tort could evolve into an unwieldy instrument that allows 'privacy' rights to attach to a broad range of interests, which have little or nothing to do with the tort as it was originally envisioned by Warren and Brandeis.[133]
These concerns, however, have little application in New Zealand. Recognition of the tort in this country has been confined to the public disclosure of private facts, and the tort itself is further circumscribed by the requirements outlined by Prosser. It is not a 'blockbuster' tort, but a limited cause of action in privacy that will afford legal protection to a focused area where the balancing of competing values weighs in its favour. Principled development of the action's requirements and defences will make the development of an unruly and unprincipled cause of action unlikely.
The inconsistency in reasoning that has emerged in the United Kingdom's extension of the breach of confidence doctrine further weakens the argument for such a development in New Zealand. According to one commentator, the English courts are 'plagued by contradictions arising from the failure to resolve decisively the extent to which principles deriving from privacy substitute themselves for the traditional ingredients of the action in confidence.'[134] Indeed, it seems there is confusion among judges as to how orthodox breach of confidence principles are to be applied to privacy cases once the bare requirements of the confidence doctrine are satisfied. In this sense, the 'almost startlingly radical'[135] extension of the law of confidence in the United Kingdom seems to have produced more problems than the principled development of a separate tort of breach of privacy would in itself.
One example of these difficulties is found in the English courts' treatment of confidentiality where the relevant information involves details of a claimant's sexual relationships. Numerous obiter statements by English judges have endorsed the imposition of an obligation of confidentiality merely by the nature of the information concerned.[136] In at least two cases, however, when it comes to clarification of the circumstances in which an obligation of confidentiality will be imposed, a reversion to the traditional principles of the breach of confidence action is evident. In A v B plc,[137] for example, Woolf C J acknowledged the difficulty of applying the pre-existing action to protect a related, but quite distinct interest.[138] Speaking of the 'significant difference' he saw between stable and transitory relationships, Woolf CJ in A v B plc observed 'in situations where the parties are not married (when they are special considerations will arise) the fact that the confidence was a shared confidence which only one of the parties wishes to preserve does not extinguish the other party's right to have the confidence respected, but it does undermine the right.'[139]
The Court cited with approval comments of Ouseley J in Theakston vMGN Ltd, [140] who expressed a similar view when considering the protection from publicity of a transitory, engagement in a brothel.[141] Woolf CJ concluded that '[r]elationships of the sort which A had with C and D are not the categories of relationships which the court should be astute to protect when the other parties to the relationships do not want them to remain confidential'.[142]
In delineating between 'categories' of relationship however, it seems that the Court has resorted to the trust and fidelity terminology of an orthodox notion of breach of confidence.[143] Confidentiality can be imposed in a privacy case by the nature of the information in itself. The focus is on the harm that can result from the disclosure of the claimant's intimate details. It is thus both old-fashioned and inappropriate for the judge in a modern privacy case to resort to categories of marital and extra-marital relations, or their duration. These are concepts distinctly suited to an action in confidence where a relationship of confidentiality must be established.[144] In A v Bplc, the privacy interest was in fact the claimant's right to a private sexual life. The fact that the claimant was or was not married to the other party to the relationship did not derogate from the fact that the encounter in question was of a highly intimate nature. A more appropriate inquiry would be whether the claimant had a reasonable expectation of privacy in the relationship. This would allow the court to take into account the particular set of circumstances in a case, an inquiry made difficult where assumptions are made as to the privacy that can attach to particular types of relationship.
Uncertainty in the use of the extended form of the confidence doctrine arises further in the general test used by the courts to ascertain a breach in a privacy case. The English courts have adopted the 'highly offensive' test for the privacy tort,[145] but its precise application to the facts of a case has caused confusion.[146] In Campbell for example, the English Court of Appeal concluded 'it is not obvious to us that the peripheral disclosure of Ms Campbell's attendance at Narcotics Anonymous was in its context, of sufficient significance to shock the conscience and justify the intervention of the court.'[147] In this passage, the Court seems to have merged the language of equity with that of privacy. The notion of 'unconscionability' is relevant to a confidence action because the focus of the action is on the confidentiality entrusted by one party to another. The trust attaches to the recipient's conscience. If no such relationship exists between the parties, as in Campbell, where the photographer had no relation to the claimant, the conscience of the photographer cannot be affected.[148] Language invoking notions of conscience on the part of the parties therefore has little application to cases involving privacy interests.
While the extended use of breach of confidence has removed the difficulties that existed where the confidant and discloser of the information were different people,[149] it has also created uncertainty in the English courts.[150] Principles will no doubt evolve to guide the English courts in the future application of breach of confidence to privacy interests, but this will take time. And even if more certainty in the field is achieved, there remains the possibility that future legislative intervention will disrupt any balance reached by the courts.
In fact, judicial sentiment may lie in favour of such a move. Lindsay J concluded in the Douglas trial, for example, that '[a] glance at a crystal ball of, so to speak, only a low wattage suggests that if Parliament does not act soon the less satisfactory course, of the courts creating the law bit by bit at the expense of litigants and with inevitable delays and uncertainty, will be thrust upon the judiciary.'[151]
The Report of the Culture, Media and Sport Committee[152] on privacy and media intrusion in the United Kingdom may give clarification as to that Parliament's intentions. So too might the recently approved application to appeal to the House of Lords by the plaintiffs in Douglas. Notwithstanding, the conclusion that English privacy law is in an unsettled state of evolution is unavoidable. It would be futile for the New Zealand courts to adopt the unproven and muddled law of another jurisdiction when a more satisfactory cause of action exists at home. With all due respect, Randerson J erred in suggesting otherwise.
This view is given further impetus by the fact that jurisdictions outside of the United Kingdom and New Zealand seem to have shown less sympathy for the extended breach of confidence action than Randerson J suggests. This is shown in the Judge's reference to the High Court of Australia decision in Australian Broadcasting Corp v Lenah Game Meats Ply Ltd.[153] Following a brief survey of that case, Randerson J concluded that the judges had shown a willingness to develop and apply the law of confidence, in a similar manner to the United Kingdom. A closer reading however, suggests that this is not a true reflection of the decision's impact on Australian law.
While it is correct that the High Court in Lenah deliberately left open the question of whether a tort of invasion of privacy existed in that country's law, not one of the judgments delivered in the case rejected the possibility that a tort might be recognised in the future. All of the members appeared to agree that no tort of privacy invasion has existed in Australia since a High Court decision in 1936.[154] However, Gummow and Hayne JJ stated that the case does not today stand in the way of the development of a cause of action in privacy,[155] and Kirby J indicated that '[i]t may be that more was read into the decision in Victoria Park than the actual holding required'. Further, while Gleeson CJ heeded caution given the lack of precision in the concept of privacy, and tension between privacy interests and those in free speech, he maintained that 'the law should be more astute than in the past to identify and protect interests of a kind which fall within the concept of privacy.'[156]
A judge in the District Court of Queensland has since allowed for the first time in that country, a civil action for damages based on an actionable right of privacy.[157] Its likely appeal will provide an opportunity for clarification of the Australian position. Until then, contrary to the inference in Hosking, it is difficult to speculate in which direction Australian privacy law will go.
Regardless of the eventual Australian position, in New Zealand protection of privacy can be successfully achieved by means of a tort of infringement of privacy. There is nothing to suggest that previous judges acted in an unprincipled manner in developing a tort. Indeed, those who had lamented the lack of protection for individuals whose private facts had received publicity welcomed the support shown for it. The tort remains in an infant state, but thus far, recognition of it has been gradual and made on what appears a principled basis. Future cases are capable of building on this tort as an existing cause of action, without the legal gymnastics that have characterised English jurisprudence over past years. It is the writer's view that the suggestion in Hosking to do otherwise showed an excessively conservative attitude toward a new and developing area of the law. The tort's infancy can, in fact, be viewed as an advantage. It offers the New Zealand courts an opportunity to shape the law in a principled fashion, informed by the jurisprudence of the more experienced BSA, and avoiding the pitfalls of the American tort. There is further scope for extension of the tort to other branches of Prosser's definition should the occasion arise, a capability that may not attach to the law on breach of confidence.[158] Given the caution shown by the courts thus far, there appears little risk of uncertainty in the law for those at risk of litigation. Should the liability resulting from each cause of action differ in name only however, as has been suggested by members of the English Court of Appeal, then whether or not the New Zealand courts continue to develop a tort of privacy will be of little interest for the potential litigant. Either cause of action will produce the same result. Surprisingly, aside from
discussion as to the conceptual bases of the two actions, the issue has received little attention either academically or in the courts. Rather, it has been assumed that the same interests will be protected under both heads of liability.[159] While this will generally be true, in some instances it seems that different results could emerge. Given that the difference will sound in legal remedies, arguably the question deserves greater attention than it has hitherto received. It is the points of potential difference between the causes of action to which discussion will now turn.
Different outcomes for different causes of action might occur where:
i) The plaintiff has been identified in the publication;[160]
ii) A company is the plaintiff;[161]
iii) There is a relationship, but there is an understanding of confidentiality on the part of only one party to the relationship;[162]
iv) The information is already in the 'public domain'; and[163]
v) There has been intrusive obtaining of personal information as well as the publication of it.[164]
A brief analysis of the potential differences in i) and iv) follows. It is suggested that these areas demonstrate the problems that will arise in the application of the breach of confidence doctrine to privacy cases. The possible disparities they show are further proof of the desirability of a tort of breach of privacy in New Zealand.
Whether or not the plaintiff is identified in a publication may result in different liability depending on the cause of action under which a claim is brought. In the New Zealand District Court case of L vG[165] the sex worker was not recognisable in the photograph published. Nevertheless, Abbott J held that this fact did not negate the cause of action. Rather, his Honour thought it would sound in the measure of damages awarded. This was because, according to the Judge, the rights protected by the tort related to the loss of the plaintiff's 'personal shield of privacy' rather than the public's perception and identification of the plaintiff. This opinion can be contrasted with the English Court of Appeal case of R v Department of Health ex p Informatics.[166] This was an action brought under breach of confidence for the disclosure by pharmacists of patients' prescription details to pharmaceutical companies for marketing purposes without the patients' consent. The Court considered that there had been no breach of confidence because the identity of the patients concerned had been protected. Since the patients were not identified, no detriment had been established to satisfy the requirements of a breach of confidence action. The different treatment of identification in these cases might be explained on the basis of the 'detriment' element of the confidence action. While Megarry J in Coco v Clark left the question open as to whether detriment was a necessary component of a confidence suit, the decision in R v Department of Health indicates that detriment in some form (either threatened or actual) must be shown.[167]
A tort of breach of privacy does not require a plaintiff to prove detriment. But conceptually, identification seems crucial to privacy invasion by public disclosure of personal facts. Such a tort constitutes the secrecy element of Ruth Gavison's concept of privacy.[168] When information is published about someone that does not identify them, they retain their anonymity. The secrecy of their private lives remains intact, as no one knows anything more about them than they did before the publication in question. Privacy law has as its concern the distress and humiliation that can result from others knowing about one's private (and possibly embarrassing) affairs. As a matter of logic, a claimant who is not identifiable by those to whom the information is disclosed has not suffered the kind of emotional distress on which a tort of privacy is based.[169] This appears to be supported by the opinion of the English Court of Appeal in R v Department of Health. The fact the patients had not been identified meant they had suffered no violation of privacy that could constitute detriment for the purposes of a confidence action.[170] The BSA has taken a similar line in its decisions,[171] and support for identification as a necessary component of a privacy action is shown in the views of Gallen J in Bradley.[172] Such an approach does not mean that unidentified persons are necessarily vexatious or mistaken in their privacy claim. Feeling violated when one's information is given unwanted publicity is a natural human response. But in such situations, the concept of privacy might be confused with fair treatment.[173] Feeling distressed does not automatically amount to the violation of a legal interest in privacy.[174]
In L v G,[175] however, the opposing line of argument was adopted. This holds that an infringement of privacy is centred upon the psychological damage to the individual that can result from disclosure of one's personal affairs, and this can occur not only by actual violation, but also by the 'demonstration that the personal space is not inviolate'.[176] This view is consistent with the argument that privacy is more about retaining 'control' over personal information than the harm that can arise out of others' accessibility to it.[177] If privacy is about control, then information about someone that enters the public domain will involve a loss of that control regardless of whether it can be identified with them or not. But as Evans suggests, control terminology relating to privacy still refers to information about a person that is communicated to others. This implies that the public must learn something about the claimant in the publication. But this is not possible where he or she is not identifiable. Thus even if privacy concerns a loss of control, it might still require identification for an alleged invasion to be actionable.
Whether or not a tort of privacy will treat identification in a different manner from privacy as a species of breach of confidence, is thus unclear. The issue remains unresolved within the privacy tort itself, although the one low-level decision in L v G held a lack of identification not fatal to a claim. This finding can be contrasted with the need for identification considered by the English Court of Appeal in R v Department of Health. But in contrast to that case, it has been suggested that breach of confidence will allow an identified plaintiff a legal remedy. Katrine Evans[178] bases her argument on the facts of L v G, from which she argues that the more satisfactory cause of action for the plaintiff prostitute would have been breach of confidence.[179] This is because the basis of breach of confidence is the protection of relationships where confidence is expected, and relationships can be damaged even where actions do not result in persons knowing more about the claimant than they did before. If Evans is correct in this argument, then breach of confidence would approach identification in the same manner as that advocated for a tort of privacy in L v G. As the discussion above has indicated, however, it is the writer's view that the preferable approach for a tort of privacy, given its conceptual basis, is that identification of the plaintiff is a pre-requisite of a successful action. What Evans' analysis shows are the drawbacks of applying an existing action to a related but conceptually distinct area for protection. Should an extended breach of confidence action be applied in this manner, the result would be a liability inconsistent with the rationale for the protection of privacy.
In any case, it is submitted that the courts would not adopt this analysis in respect of the extended breach of confidence doctrine. This is evidenced by a number of factors, the most obvious of which is the fact that the detriment component of a breach of confidence action will be difficult to satisfy in the absence of identification. Should Evans' suggestion be correct at all, it is suggested that it be confined to the orthodox notion of breach of confidence. In L v G there was a pre-existing relationship between the parties, so it seems it would have been open to a court to find that there was an implied obligation of confidence in that relationship attaching to the photographs taken.[180] The argument must, however, fail in an extended breach of confidence action. There, no confidential relationship exists between the parties because the duty of confidence arises out of the nature of the information itself, or manner in which it is obtained. Evans' argument against the need for identification in a confidence action will have no application here, as there is no relationship to suffer damage from the breach. Instead, the focus must be on the violation of an underlying interest in privacy, as is the case for a privacy tort. The arguments outlined in the above passages in favour of identification in the tort will thus be relevant. A problem area such as identification in the protection of privacy is thus exacerbated where protection is sought by means of a conceptually distinct legal doctrine. The preferable outcome for both causes of action, given their shared rationale for the prevention of emotional distress, is for identification to be required. This is supported on practical grounds also, in that a lack of identification in privacy cases may open the floodgates to a volume of claims. A table of the salaries of Chief Executives (who are not identified), a report that a large donation had been given to a charitable organisation,[181] and the footage of anonymous individuals accompanying news stories each night to illustrate general statistical trends and social phenomenon, might all be actionable on the grounds of privacy invasion.[182] Common sense tells us that allowing an action in these contexts could result in unreasonable restrictions on the freedom of the Press.[183] But this concern applies to both a privacy tort and an extended breach of confidence action. Accordingly, there seems to be considerable merit in the addition of a fifth requirement to a successful action in privacy requiring the facts disclosed to concern an 'identifiable individual'.[184] However, should the courts ignore these concerns and follow the approach of Abbott J in L v G all is not lost. Arguably the Judge reached a satisfactory balance between the conflicting values in a privacy case. His Honour expressed the view that identification should sound in the damages
recoverable. Such a suggestion is worthy of consideration. For example, the knowledge that nominal damages would only be available may be a sufficient deterrent to fanciful claims where a plaintiff is not identified, whilst still providing an opportunity for recognition of the wrong done where the plaintiff wishes to bring an action 'on principle'. If damages are appropriate, they could reflect the fact that the unidentified plaintiff cannot have suffered the degree of emotional distress normally attached to an action.
In a traditional breach of confidence action, if a defendant can show that information has become public knowledge, it is no longer confidential and disclosure of it by the defendant causes no further damage.[185] An application for an interim injunction to prevent publication of the information should fail in these circumstances, as there is no confidence left to protect.[186]
Where the protection of privacy is concerned, the facts disclosed to the public must be private facts and not public ones.[187] Facts that are already known or accessible to the public cannot as a matter of logic, be 'private'. Determining whether or not a particular fact can be deemed 'private' as the introductory remarks in this paper have shown, is an inherently difficult task. As Gleeson CJ observed:
[T]here 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 large area in between what is necessarily public and what is necessarily private. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibility is in many circumstances a useful practical test of what is private.[188]
The complexity of privacy, as shown by this passage means that a more flexible approach is required for the notion of what is public than might be the case for a confidence action. Even if a fact is deemed to fall within the 'public domain' under the rules of breach of confidence, in a privacy action it might nevertheless be deserving of legal protection. Two general situations in which information might be considered part of the 'public domain' in a confidence action, but can still be considered 'private', illustrate the point. The first concerns the extent to which protection may be given to information that has already been given publicity and is therefore in the 'public domain'. The second involves the treatment of information that is 'public' because it has occurred in a public setting.
The first issue is illustrated by two examples offered in a report of the United Kingdom Law Commission.[189] One example involves a case in which personal information already published elsewhere in violation of privacy, is given publicity to a wider audience. A doctor might disclose in a breach of confidence, for instance, personal information about a patient to a local newspaper that carries only a modest readership. Should the story be later picked up by a publication with a much larger audience, it will have already entered the public domain. In theory, under a breach of confidence action it has lost its 'necessary quality of confidence', and restraint of further publication should not be available. A second example is shown in case of a researcher whose archival search unearths a list of true facts about a person, all of which were at some stage known to the public, but are not general public knowledge at the current time.[190] This type of scenario arose in Tucker v News Media Ownership.[191] Details of the plaintiff's past criminal convictions had, at one time, been information in the public domain, but through the passage of time had returned to 'private facts'. Again, an ordinary reading of a breach of confidence action would find that information such as that in Tucker would not be protected as it was already in the public domain. It no longer has the necessary quality of confidence about it.
Privacy law, however, turns not on whether information is 'confidential' (the focus of an injunction application under breach of confidence), but on the damage and distress that might be caused to an individual by others knowing his or her personal details. On this basis, even where the information in question is already in the public domain, further publicity given to it is capable of causing harm and distress to the plaintiff. While the facts will have lost their quality of confidence, they may remain private, in the sense that the plaintiff would prefer that large numbers of people did not know about them. On this interpretation then, in both the above examples the information would be capable of protection even though it was already in the 'public domain' for the purposes of breach of confidence. As long as its disclosure passed the requirements outlined for the tort in P v A a privacy action could succeed.
Orthodox use of breach of confidence principles in these types of cases will prove inadequate to cater for the suffering that can result from a violation of privacy. Notwithstanding, it can be noted that the English courts have shown sympathy toward the restraint of publication in breach of confidence actions even where information has been published in the public domain and is known to quite large numbers of people. If its publication will exacerbate the damage already caused,[192] the courts may still offer redress under a confidence action. Dicta in A-G v Guardian Newspapers (No 2) for example, suggested that whether information is in the public domain for the purposes of breach of confidence will be a matter of degree, and it will be more difficult for personal information to lose its confidentiality merely because it has come to the attention of 'certain readers or categories of readers.'[193] Judicial comment since the HRA was passed seems to confirm this view. The dictum of Gleeson CJ in Lenah has been used to determine whether information has the 'necessary quality of confidence' about it, and in Campbell the fact that a limited number of people knew the details of the claimant's attendance at Narcotics Anonymous does not appear to have affected the information's confidential quality. Similar comment is found in Mills v News Group Newspapers.[194] While assessment of what is 'confidential' in this manner is clearly beneficial to the privacy plaintiff, it sits uncomfortably with the doctrine of confidentiality as a whole. As Lindsay J in Douglas observed,[195] the first limb of the Coco test as to the necessary quality of confidence is to do, and only to do, with whether the information is already public property and public knowledge. It is not concerned with whether or not the information is 'private' in the sense that its disclosure would be significantly harmful.[196] Although the Court of Appeal in Campbell dismissed the concern that the 'highly offensive' test conflated two different considerations,[197] the concern has theoretical basis. By replacing the Coco test with the test for 'privacy', the English courts have effectively merged the question of whether information was imparted in confidence with the question of whether it is in the public domain. The former inquiry is absorbed into the latter. Yet on a true construction of 'confidence', information that is already in the public domain cannot by definition, remain 'confidential'. The first limb set out in Coco therefore seems crucial to the basis of the breach of confidence action. This is yet another example of the courts' contortion of the confidence doctrine to suit privacy interests.
An associated issue arises in cases where the information that a claimant seeks to protect has occurred in a public place. The general rule, as stated in Hosking, is that there is no legal right to be let alone in a public place, and nor is it an invasion to take another's photograph in such a place. The rationale is that photographs in this context show nothing more than that which a bystander would be free to observe.[198]
Like any aspect of the law however, there are exceptions to this rule. As Randerson J stated, although the publication of a photograph taken in a public place will not ordinarily be actionable this does not give the media a 'carte blanche'.[199] His Honour thought that exceptional circumstances, such as the nature of a photograph, the manner in which it was obtained, or the way it was later published, could be protected even though the photograph was taken in a public place.
His Honour's comments are consistent with those made in Bradley. In the latter case, although the existence of the tombstone in a public cemetery was clearly not a private fact, Gallen J accepted that 'it is conceivable that in certain circumstances the fact that something occurred or exists in a public place does not necessarily mean that it should receive widespread publicity if it does not involve a matter of public concern.'[200] Similarly, an Australian judge suggested that relief could be available where photographs were taken of a person 'shockingly wounded' in the aftermath of a road accident, or standing innocently over an air vent 'with her skirts blown up'.[201] The obiter statement of the English judge in Hellewell cited above, also lends support to this view.[202] It can also be noted that the fact that an intrusion of privacy has occurred in a public place does not necessarily prevent a successful complaint before the BSA.[203] The Supreme Court of Canada[204] found that the privacy of a teenage girl had been violated when she was photographed sitting on a step in front of a building in a public street. It must be noted that the decision can be distinguished by the specific provision in the Quebec Charter of Human Rights and Freedom relevant to the case.[205] Nevertheless, it can be contrasted with the American tort, under which anything visible in a public place can be given publicity since what occurs in a public place cannot by definition be considered 'private'.[206]
The same conclusion might conceivably be reached under a breach of confidence action given that information must necessarily lose its confidentiality when it is known to substantial numbers of people. Conceptually, it would be difficult to show that something that occurs in public has the 'necessary quality of confidence', about it, or had been 'imparted in circumstances importing an obligation of confidence'. This was the opinion in any event, of the European Court when it considered the footage of the man filmed in the public street in Peck v UK.[207] Randerson J was confronted with this decision by the plaintiffs in Hosking. In response, he suggested that it might be doubtful whether the courts of the United Kingdom would now come to the same conclusion in Peck.[208] The events had taken place before the Human Rights Act was passed. This is a debatable point. The recent decision in Campbell seems to suggest that the English courts will take an orthodox approach to events that occur in a public place under the doctrine of confidentiality.[209] In that case, the English Court of Appeal concluded that photographs taken in a public street of the plaintiff leaving a drug rehabilitation facility did not, without more, convey anything that was confidential. The information conveyed that was confidential was contained in the captions to the photographs and the articles they featured. In this regard the Court rejected a comparison with the photographs of the Douglas wedding, as the photographs in the latter case 'conveyed to the public information that was not otherwise truly obtainable'.[210]
The court in Campbell thus appears to assume that a photograph taken in a public place, without more, is not confidential for the purposes of breach of confidence. Without the caption the Court considered that the photographs were invasive but they did not convey confidential information. They may have been covered by a freestanding tort of breach of privacy that did not involve the disclosure of private facts, rather than an infringement of privacy as a species of breach of confidence, but no such case was sought to be advanced on behalf of the claimant.[211] No reference was made to any class of 'exceptional cases' under the breach of confidence doctrine considered by the Court.[212]
Campbell again shows the problems that can result from the application of the law of confidence to privacy related interests. It is submitted that the inquiry undertaken in relation to information in a public place under the New Zealand privacy tort is much more helpful in the protection of a privacy interest. Cases must depend on their circumstances and on the plaintiffs' reasonable expectation of privacy given those facts. The difficulty in this benchmark is, of course, its reliance upon the intuition of the court and a corresponding lack of clarity for the media and potential claimants. One way to deal with this may be a return to the view of privacy as 'control' over one's private facts. Phillipson suggests that the Douglas wedding might be interpreted in this manner.[213] In Douglas, Lindsay J considered that 'to the extent that privacy consists of the inclusion only of the invited and the exclusion of all others, the wedding was as private as was possible consistent with its being a socially pleasant event'.[214] In the sense that the celebrity couple sought to exert control over how, and to what extent, information of their wedding was disseminated then, the event remained private. To the extent that they did not, it was public. On this reading however, unless an individual walks around in a protective 'box', anything that takes place in public place will necessarily be deemed 'public' for the purposes of privacy protection. A person severely injured in an accident, a widow grieving at her husband's funeral, a woman sunbathing topless and a person caught in an embarrassing or distressed state in a public place, would all be left without remedy. So too would the claimant in Peck.
It is the writer's opinion that a more attractive guiding principle for such cases would centre upon the notion of human dignity, regardless of whether a claim is brought under confidentiality or privacy law. If this is taken as the underlying rationale for the protection of an interest in privacy, it is a relatively simple step to state that situations in a public place in which an individual's basic dignity is threatened should be protected from disclosure to a large audience without their consent.
Notwithstanding the lack of development, a tort of breach of privacy is a preferable alternative to breach of confidence as a means of protecting privacy interests in this country. Privacy is an essential human right. While any civil action in privacy must be balanced against the importance of the free circulation of information in a democratic society, the courts both in New Zealand and overseas have shown a readiness to protect interests in privacy, at least so far as the unwarranted disclosure of private true facts is concerned.
Early hopes that a common law tort of breach of privacy might be recognised in the United Kingdom with the passing of the Human Rights Act have died in the wake of a conservative House of Lords attitude in the recent case of Wainwright. The extension of the law on breach of confidence is now clearly the means by which the United Kingdom courts will protect privacy interests in the future. Notwithstanding these developments, this paper has argued for the continued recognition of a tort of infringement of privacy in New Zealand. Although Randerson J showed support for the development of the breach of confidence action in Hosking, it is the writer's view that for the courts to abandon a tort of privacy in favour of the English developments would be a regrettable and poorly reasoned move. The confidence doctrine is a conceptually distinct legal doctrine and thus invites different considerations to be given to privacy cases than a privacy tort. Confusion as to the role of confidentiality principles in such cases has led to inconsistency in English case law. The difficulty in their application to privacy interests accordingly makes the law on breach of confidence an undesirable option for New Zealand privacy law. Although it is perhaps premature to assert the inadequacy of the use of breach of confidence for privacy protection, it seems reasonable to believe that the difficulties shown in recent cases will continue for some time. Precedent restrains the United Kingdom courts in their development of a privacy tort, but no such obstacle exists in New Zealand. There is ample authority for the recognition of a tort here. Equally, there is no European Convention. The New Zealand courts have a responsibility to shape the common law in a manner that is consistent with our distinct social, political and legal needs. The 'now you see it, now you don't' attitude shown toward the tort of breach of privacy in Hosking that exists in this country is therefore inappropriate. It is to be hoped that future judgments will take such concerns into account and restore the tort of infringement of privacy in this country to its former state of (under)development.[215]
Since this article was written, the Court of Appeal has given judgment on the Hosking appeal.[217] Although the Court rejected the specific privacy claim,[218] in a 3:2 majority judgment, it confirmed that a tort of privacy does exist in New Zealand. All judgments appear to recognise that there exist rights deriving from a human need for privacy which are deserving of protection by the law.[219] The joint judgment of the majority states two fundamental requirements for a claim: (1) The existence of facts in respect of which there is a reasonable expectation of privacy;[220] and (2) Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.[221] For Tipping J, also in the majority, the first ingredient is that the plaintiff must show a reasonable expectation of privacy in relation to the information the defendant has published or wishes to publish.[222] However, Tipping J would settle for substantial offence and harm, which is a lesser test than his fellow judges.[223] In the United Kingdom, the House of Lords has also decided that the fact that Naomi Campbell was receiving treatment at Narcotics Anonymous, the details of her treatment, and her appearance leaving a meeting, were confidential and there was no overriding public interest justifying publication.[224] Their Lordships recognised that a right of privacy lay at the heart of the action for breach of confidence and that that right had been invaded.
The New Zealand judiciary and, increasingly also, that in the United Kingdom, accepts the validity of a right based on privacy. Our Court of Appeal is prepared to describe that right directly. In doing so in Hosking, the Court has not departed from the basic elements of the tort as previously established in New Zealand to any great degree.
[*] Melissa is presently working in Japan.
[1] Compare the opinion of anthropologist Edmund Leach who suggested 'we are so deeply committed to being alone in a crowded world that we turn the whole problem back to front: we worry about privacy rather than loneliness,' in M Weinstein, 'The Uses of Privacy in the Good Life', in R Wacks (ed) Privacy (vol 1, 1993) 349.
[2] In New Zealand, the Press Council is a self-regulated body funded by newspaper publishers and journalists for the resolution of complaints against the press. See the Press Council's website at <http://www.presscouncil.org.nz> for a description of the complaints process. The Broadcasting Standards Authority hears complaints concerning alleged breaches of the principles developed under the Broadcasting Act 1989. See text below accompanying n 53-56.
[3] As Professor Cowen concluded, 'we cannot assume that privacy will survive simply because man has a psychological or social need for it', cited in J Lyford, 'The Ministry of Truth Redefined', Murdoch University Electronic Journal of Law at <http:///www.murdoch.edu.au/elaw/index.html> .
[4] Rather than on cases of intrusion arising out of the manner in which the information is gathered. The extension of the tort in this manner has not been ruled out in this country however. For a discussion see S Todd The Law of Torts in New Zealand (3rd ed, 2001) para 17.5.
[5] [2003] NZHC 416; [2003] 3 NZLR 385.
[6] The domestic sphere was associated with women, children and slaves. See M Weinstein above n 1, 29.
[7] <http//:www.privacyinternational.com>
[8] E Bloustein, 'Privacy as an aspect of Human Dignity: An Answer to Dean Prosser', (1964) 39 New York University Law Review 962.
[9] This explanation is put forward by T Emerson, 'The Right of Privacy and Freedom of the Press' in R Wacks (ed) Privacy (vol 2, 1993) 337.
[10] C Fried in S Benn, 'The Protection and Limitation of Privacy' (1978) 52, 601.
[11] These points were made in a 1999 editorial of The Economist cited in Law Commission Preliminary Paper 49 (2002) 15.
[12] Bartnicki v Vopper 69 (2001) USLW 4323, 4331 per Rehnquist CJ cited by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats (2001) 185 ALR 1 (HCA), para 31.
[13] Sir N Fowler cited in S Spilsbury, Media Law in Theory and Practice (2000) 303.
[14] Rosen The Unwanted Gaze, cited in Australian Broadcasting Corporation v Lenah Game Meats, above n 12, per Callinan J.
[15] Unlike most torts, the tort of privacy does not require proof that violation of a relevant social norm has actually caused some form of harm or damage. Rather, an intrusion upon privacy I seen as intrinsically harmful because of its very definition: an injury to social personality. See R Post ‘The Social Foundations of Privacy: Community and Self in The Common Law Tort' in RWacks (ed), above n 1.
[16] This point is noted by J Fleming The Law of Torts (9th ed, 1998) 665. See D Zimmerman 'Requiem for a Heavyweight: A Farewell to Warren and Bradeis' Privacy Tort in R Wacks (ed), above n 9, 466 for a detailed explanation of the problems associated with compensating emotional harm.
[17] Report of the Committee on Privacy, Cmnd 5012, 1972 ('the Younger Committee').
[18] S Deakin et al Markensinis and Deakin 's Tort Law (5th ed, 2003) 697.
[19] In Todd, above n 4, 908. R Post, above n 15, 969.
[20] R Gavison 'Privacy and the Limits of Law' 89 (1980) Yale Law Journal 421, 425-40.
[21] It is thus divisible into three parts: secrecy, anonymity and solitude. See further Post, above n 15, 969.
[22] Wacks, above n 1, xiv. Robert Post also similarly insists that privacy is inherently normative, and unsuited to objective measurement, by means of such objective facts as spatial difference or information. He believes it may only be unerstood by reference to norms of behaviour. See Post, above n 15, 969.
[23] Report of the Committee on Privacy and Related Matters (Cm 1102, 1990) (‘The Calcutt Committee') in S Bailey et al Civil Liberties Cases andMaterials(3rd ed, 1991). The Younger Committee divided privacy into two main elements: 'The first of these is freedom from intrusion upon oneself, one's home, family and relationships. The second is privacy of information, that is, the right to determine for oneself how and to what extent information about oneself is communicated to others. See the Younger Committee Report, discussed in S Bailey et al, ibid, 470.
[24] Australian Broadcasting Corporation vLenah Game Meats above n 12, para 42 per Gleeson CJ.
[25] Noted by Post, above n 15, 964.
[26] Ibid, 978.
[27] Ibid. It has been noted that judges in America, who do carry this burden, have shown a reluctance to decide what is private, largely because of the diversity of behavioural norms in American society. See D Anderson ‘The Failure of American Privacy Law' in B Markesinis (ed) Protecting Privacy (1999).
[28] It was thus the view of the Younger Committee in 1972 that a general right of privacy would burden the courts with 'controversial questions of social and political character'. See above n 17, para 659.
[29] R Wacks ‘The Poverty of Privacy' (1980) LQR 73.
[30] Palko v Connecticut [1937] USSC 174; 302 US 319, 327 (1937) per Cardozo J in S Deakin et al, above n 18, 700.
[31] According to the Lord Justice, 'freedom means the right to publish things which Government and judges, however well motivated, think should not be published. It means the right to say things which 'right thinking people' regard as dangerous or irresponsible.' R v Central Independent Television plc [1994] 3 All ER 641 cited in Theakston v MGN Ltd [2002] EWHC 147 (QB) per Ouseley J, para 31.
[32] See J Burrows and B Wilson Media Law (New Zealand Law Society Seminar, 2003) for discussion of this element in more detail.
[33] A set of judge made principles called 'droit de la personnalite', give protection to privacy interests. In 1995 the 'right to privac' was consecrated as a 'constitutional principle' by the French Constitutional Council. It remains to be however, confined within the limits of the constitutional right to 'individual freedom'. See E Picard ‘The Right to Privacy in French Law' in Markesinis (ed), above n 27, 50. For a detailed account of the development of privacy law in France.
[34] The German right to privacy is judge made and is based on a bundle of rights described as 'the right of the personality' ('Personlichkeisrecht'). See B Markesinis and S Enchelmaier 'The Applicability of Human Rights as between Individuals under German Constitutional Law' in Markesinis, above n 27, 191.
[35] Warren and Brandeis 'The Right to Privacy' (1890) Harvard Law Review 193.
[36] Ibid, 207.
[37] W Larremore 'The Law of Privacy' (1912) 12 Columbia Law Review 693.
[38] As Prosser wrote, 'no other tort has received such an outpouring of comment in advocacy of its existence' cited in H Kalvern Jr 'Privacy in Tort Law- Were Warren and Brandeis wrong' in Wacks, above n 9, 31.
[39] D Prosser 'Privacy' (1960) 48 California Law Review 383. American law recognises other 'rights of privacy' that are not torts, and beyond the scope of this paper. For instance, a constitutional 'right of privacy' that protects against governmental interference in abortion and contraception. See Roe v Wade [1973] USSC 43; 410 US 113, 93 SCt 705 (1973) and Griswoldv Connecticut [1965] USSC 128; 381 US 479, 85 SCt 1678 (1965)
[40] See for example Anderson, above n 27, 140.
[41] It has been suggested that the third branch in fact protects against the commercial exploitation of property and will often be covered by the tort of passing off. See Todd, above n 4, para 17.4 for how appropriation cases have been dealt with by the New Zealand courts.
[42] Some Canadian provinces (including Manitoba and British Columbia) have created statutory torts of privacy. See Todd, above n 4, para 17.7 for more details.
[43] [1991]FSR62(CA).
[44] Ibid.
[45] Ibid.
[46] See also R v Khan [ 1997] AC 5 5 8.
[47] See Leggatt LJ cited in Bailey et al, above n 23, 474.
[48] Passing off was rejected because Mr Kaye was 'not in the position of a trader', a requirement laid down by the House of Lords decision in Warninkv Townend and Sons [1979] AC 731. Trespass to the Person also failed, on the grounds that the taking of a photograph did not amount to battery, and there was no causal evidence to sow that Mr Kaye had suffered distress as a result of that act. Libel fared better. The publication, the judges thought, was libellous, but interim injunctions are used sparingly in libel actions, and thus no injunction was granted in this instance. See Deakin et al, above n 18, 710-11 for a discussion of this case.
[49] Ibid, 710.
[50] Prince Albert v Strange (1849) All ER 1171.
[52] For example, the right to be secure against unreasonable search or seizure under section 21 has been interpreted by the Court of Appeal as protecting the important values and interests that make up the right to privacy. See Tim MacBride 'Recent New Zealand Case Law on Privacy: Part I: Privacy Act and the Bill of Rights Act’ Privacy Law and Reporter(January 2000) 107. See also the discussion in Todd, above n 4, para 17.5.
[53] Article 12 of the Universal Declaration of Human Rights, for example, provides: 'No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks'. See also the International Covenant on Civil and Political Rights, art 17; and the United Nations Convention on the Protection of the Child, art 16.
[54] The Act also grants to individuals the right to have access to personal information held about them by any agency. 'Personal information' is any information about an identifiable individual, whether automatically or manually processed.
[55] Section 4 provides: 'Every broadcaster is responsible for maintaining in its programmes and their presentation standards which are consistent with- (c) the privacy of the individual. At least 10% of the approximately 200 complaints made to the Broadcasting Standards Authority each year relate to privacy. See Burrows and Wilson, above n 32, 36.
[56] It can be noted that unlike other complaints, the BSA can award a monetary remedy of up to $5000 to the person whose privacy has been infringed.
[57] See, for example, the opinion of R Tobin 'Invasion of Privacy' [2000] New Zealand Law Journal 216, 222: '[i]t is now beyond doubt that atort of privacy exists in New Zealand'.
[58] [2000] 2NZLR591
[59] Tucker v New Media Ownership Ltd [1986] NZHC 216; [1986] 2 NZLR 716 (CA)
[60] The plaintiff argued that both a breach of confidence and a breach of the common law tort of privacy had occurred, however Nicholson J did not consider that the information was imparted in confidence, so the case had to be decided on the basis of the privacy claim.
[62] PvD, see above n 58, 601.
[63] Ibid.
[64] Above n 61.
[65] That there was an arguable case for the tort was accepted in two interlocutory applications in the High Court following Tucker. In Morgan v Television New Zealand Ltd (HC Christchurch, 1 March 1990, Code of Practice 67/90), a serious question to be tried was recognised where an interim injunction was granted to prevent the broadcast of a television documentary concerning a girl who was the subject of a custody dispute in her own country and had been brought to New Zealand by her mother. In Cash v Wilson v Horton Ltd (HC Auckland, 27 May 1992, Code of Practice 765/92), an interim injunction was granted preventing the defendant from identifying a plaintiff who was being investigated by the Serious Fraud Office.
[66] Above n 59.
[67] Tucker v New Media Ownership Ltd (HC, Wellington, CP 477-86, 22 Oct 86, Jeffries J).
[68] Above n 59, 733.
[69] Above n 61, 423.
[70] Ibid.
[71] Ibid 424.
[72] Ibid, 603.
[73] The Judge allowed for the possibility of an application by the defendant at a later stage to vary the order if circumstances significantly changed. This, it has been suggested, might have been the case if the plaintiff was appointed to an important public office. See Burrows and Wilson, above n 32, 40.
[74] A v Wilson and Horton Ltd [2000] NZHC 326; [2000] NZAR 428, 431.
[76] See comments in Bradley v Wingnut Films Ltd, above n 61, 423 per Gallen J and Marris v TV3 Network Ltd (HC Wellington, 14October 1991 CP754/91. For a discussion see Todd, above n4, para 17.5.
[77] Above n 5.
[78] Above n 43.
[79] Younger Committee on Privacy, above n 17. Further field, an Australian committee took a similar view. See the Australian Law Reform Commission, Privacy, Report Number 22, 1983.
[81] Stephens v Avery [1988] Ch 449.
[82] In Prince Albert v Strange, above n 50, for example, a successful breach of confidence action was brought to prevent the disclosure of personal documents of the royal family.
[83] Xv Y [1988] 2 All ER 648.
[84] Argyll v Argyll, above n 51.
[85] Attorney-General for the United Kingdom v Guardian Newspapers Ltd (No 2) [1990] 1 AC (HL).
[86] Ibid, 281.
[87] Ibid.
[88] [1995] 1 WLR 804, 807 per Laws J.
[89] HRA 1998 (UK) s 6.
[90] As in Douglas v Hello! Ltd [2001 ] QB 967 (CA), where the photographer passed himself off as a guest at the plaintiffs' wedding. See also Burrows and Wilson, above n 32, 42.
[91] [2000] EWCA Civ 353; [2001] QB 967 (CA). This was an appeal against an interim injunction granted by the trial judge. Hereafter, the Court of Appeal's decision will be referred to as Douglas A. In 2003 the matter returned for full trial before Lindsay J in Douglas v Hello! Ltd [2003] 3 All ER 996 (Douglas B).
[92] The court therefore considered that damages were likely to be an adequate remedy.
[93] Douglas A, above n 90, para 166.
[94] Ibid, para 167.
[95] A v B plc and another [2002] EWCA Civ 337; [2002] 2 All ER 545.
[96] Ibid, 553-554
[97] See G Phillipson, 'Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act' [2003] 5 MLR 726, 746.
[98] Above n 90, para 166.
[99] Ibid, paras 110, 126.
[100] [2002] EWCA Civ 1373; [2003] 2 WLR 80.
[101] Ibid, para 70. It should be noted that the case simultaneously endorses the extended view of confidence by the fact that the Court of Appeal left undisturbed the judge's decision that the covert taking of photographs of the claimant satisfied the requirement for the imposition of the obligation of confidentiality. There was no express or implied relationship between the claimant and the photographer.
[102] See, for example, Theakston v Mirror Group Newspapers above n 31. See also Av B plc and Another, above n 94.
[103] [2003] UKHL 53. The case did not involve the public disclosure of private facts, but interference of privacy by intrusions. The plaintiff argued that the law of trespass could be used as a vehicle to recognise rights under Article 8 in respect of overzealous prison strip searches.
[104] Ibid. A similar reluctance to recognise a high level tort of privacy was shown in the Court of Appeal hearing the same case in Wainwright v Home Office [2001] EWCA Civ 2081; [2002] 3 WLR 405 (CA). Buxton LJ was of the opinion that '[I]n being invited to recognise the existence of a tort of breach of privacy we are being invited to make the law, and not merely apply it... It is thus for Parliament to remove, if it thinks fit, the barrier to the recognition of a tort of breach of privacy'.
[105] Deakin et al, above n 18, 715.
[106] Above n 102, para 30. Sedley LJ did not, Lord Hoffman believed, advocate the creation of a high-level principle of invasion of privacy. In his Lordship's opinion, his comments simply suggested that in relation to the publication of personal information obtained by intrusion, a confidential relationship was no longer necessary for a common law action of breach of confidence.
[107] 25 EHHR CD 105.
[108] See P Havers and R English 'Human Rights: A Review of the Year' [2003] 6 EHRLR. Peck v United Kingdom, according to the writers, is 'unarguably the most significant recent development' in thr privacy area. It should be noted that Peck was concerned with an interference with privacy by the State. The alleged interference also took place prior to the HRA coming into force.
[109] Above n 102, para 33.
[110] See Lindsay J in Douglas B, above n 91, 46. This is shown in the case of Earl Spencer v United Kingdom, above n 108, where the European Court was satisfied that the action for breach of confidence provided an adequate remedy for the plaintiffs' complaint, and therefore there was compliance with article 8 of the Convention. No further inquiry was necessary.
[112] It has been suggested that the case might be explained on the boys' right to life guaranteed under Article 2 of the Convention. This in itself would cause an intrusion into private life and engage Article 8. See G Phillipson, above n 97. The same judge recently granted identical injunctions for life-long protection of the anonymity of a woman and her daughter. See X (A woman formerly known as Mary Bell) v SO [2003] EWHC 1101.
[113] Above n 5.
[114] Above n 58.
[115] (1998)50CRR 2d 225.
[116] Above n 5, para 183.
[117] Ibid para 137.
[118] See below, text accompanying nn 190-202.
[119] Above n 5, para 139.
[120] On this issue however, see P Norris 'General right to privacy doesn't exist' The New Zealand Herald 4 June 2003 and P Stirling 'Private lives, public places' The Listener 15 March 2003. Randerson J seems to show little sympathy for the issue. However much their parents seek to protect their children, his honour stated, the 'flow-on effects of their relationship with their celebrity parent' is likely to diminish their reasonable expectation of privacy. Hosking, above n 5, para 142.
[121] Ibid para 425.
[122] [2002] EWCA Civ 337; [2002] EMLR 21 cited in Hosking, above n 5, para 71.
[123] Hosking, above n 5, para 184.
[124] See the criticism of this context in R Tobin 'Privacy: One step forward, two steps back!' [2003] New Zealand Law Journal 256.
[125] Wainwright v Home Office, above n 102.
[126] Hosking, above n 5, para 181.
[127] Ibid para 182, per Randerson J: 'There is no reason why the common law should not continue to evolve to meet identified needs but my view is that it should do so in this field through the principled development of existing remedies on a case-by-case basis'.
[128] P v D, above n 58.
[129] Kaye v Robertson, above n 43.
[130] Ibid.
[131] Hosking, above n 5, para 177.
[132] Douglas A, above n 90, per Mummery J.
[133] Zimmerman, above n 16, 295.
[134] Phillipson, above n 97. See also the brief comments of R Tobin, above n 124.
[135] Ibid.
[136] See above, text accompanying nn 75-102.
[137] Above n 94.
[138] His Honour cited with approval similar comments by Ouseley J in Theakston vMGN Ltd, above n31.
[139] Above n 94, para 551.
[140] Above n 31.
[141] Ibid, para 80 per Ouseley J.
[142] Above n 94, para 45.
[143] This point is made by Phillipson, above n 97.
[144] A similar opinion is held by Phillipson above n 97.
[145] See, for example, A v B plc, above n 95 and Campbell, above n 100. Against this, Wacks argues that the test is itself inappropriate for abreach of confidence action, since the doctrine is concerned with the protection of the information communicated in confidence, not the possible harm to the plaintiff that a disclosure might bring. See R Wacks Privacy and Press Freedom (1995).
[146] See also the criticism by Lindsay J inDouglas B, above n 91, para 191. His Honour considered that the High Court of Australia's outline of the test 'did not purport to be a description of what may be confidential for the purposes of the law of confidence', and thus was particularly so in respect of the first limb of the three-part test in Coco, above n 77.
[147] Above n 100, para 56.
[148] This point is also made by Phillipson, above n 97.
[149] In a traditional breach of confidence action, a third party who receives information would owe a duty to the discloser of the information, but not to the other party to the relationship that creates the privacy. An extended confidence action would make a suit in confidence against the third party possible.
[150] Note also the criticism directed as other aspect's of the court's reasoning in A vBplc, for example the fact that the Judge considered it relevant that the other party no longer wished to keep the information a secret. According to Phillipson, this cannot go to the strength of the privacy claim itself, even though it mightaffect the other party's right to freedom of expression. See Phillipson, above n 97, 748.
[151] Douglas B, above n 90, 46. See also the comments of Lord Hoffman in Secretary of State v Wainwright, above n 102.
[152] See <http://www.parliament.the-stationery-office.co.uk> for further information.
[153] Above n 12. The case involved the secret filming by animal rights activists of the respondent's possum processing plant. The question to be decided by the court was whether an interlocutory injunction was available against the broadcaster. For an injunction to lie there had to be an underlying cause of action. Without a right of privacy, no equitable or legal right was violated by the proposed broadcast.
[154] Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479 (HCA). A racecourse was unable to obtain a remedy against a neighbouring owner who erected a high platform and broadcast the races to the public.
[155] Lenah, above n 12, para 107. See also comments of Gauldron J, para 78.
[156] Ibid, para 40. Callinan J at para 335 goes so far as to suggest that 'the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country.
[157] Grosse v Purvis [2003] QDC 151. The case involved an alleged intrusion upon the seclusion of the plaintiff, who loitered around her home and work, entered her property without permission and spied on her private life. The Court, at para 442, noted that recognition of a tort of this kind was a bold but 'logical and desirable step.'
[158] See below n 164 for a brief discussion.
[159] See Burrows and Wilson, above n 32, 41.
[160] Ibid.
[161] Conceptually, it seems that only individuals should be able to maintain an action for violations of the right t privacy since a body corporate is an artificial construct. It is incapable of experiencing the emotional suffering and distress that a right of privacy is designed to protect, even though an invasion might damage its business reputation. This was the view of the HC A in Lenah, and is also the position taken in the United States. See the discussion in R v Broadcasting Standards Commission (2000) unreported 6 April CA per Lord Mustil. A claim by a company akin to a private claim under the breach of confidence doctrine however, may be more feasible given its traditional focus upon the obligation imposed on the recipient of the information not to take unfair advantage of it. Nevertheless, in such a case one would assume that the loss claimed would be financial only. See discussion in Burrows and Wilson, above n 32, 45.
[162] Ibid. For an example of the issue in relation to an extended breach of confidence action, see the text accompanying n 120-125.
[163] Ibid.
[164] This paper will not deal with the prospects of a tort in New Zealand dealing with the intrusion into a person's solitude and seclusion. See the discussion in Todd, above n 4, para 17.6. Suffice to note that a tort of breach of privacy is capable of extending to include these cases and it is difficult to see how a breach of confidence action might cope in the same circumstances.
[165] Above n 75.
[166] See J Burrows 'Media Law Review' [2002] New Zealand Law Review 217, 242.
[167] See R v Department of Health exparte Informatics [2000] 1 All ER 786. See S Spilsbury, above n 13, 212. Compare with K Evans 'Of Privacy and Prostitutes' (2002) 20 New Zealand University Law Review 71, 99. Academic comment suggests that the better answer is that there is strict liability in a breach of confidence action at least where individual plaintiffs are concerned. The defendant is then required to demonstrate a legitimate reason for the breach of confidence in the circumstances.
[168] Above n 20.
[169] Although it is important to note that the position may differ in respect of a tort involving intrusion into a person's solitude and seclusion. See Evans, above n 167, 90.
[170] R v Department of Health exparte Informatics, above n 167.
[171] See 'Ms P' (21/94, 28.4.1994)
[172] Bradley v Wingnut Films, see above n 59, 435. Gallen J considered that the tombstone in question appeared as no more than part of the general ambience of the cemetery and was not possibly identifiable by members of the public. This factor counted against the privacy claim of the individual.
[173] See Evans, above n 167, 72.
[174] The requirement for a successful action in a tort of breach of privacy that the 'publicity' reach a number of people would seem to support this view. The courts have stated that embarrassment caused by one or two is insufficient to mount a successful claim. Compare this with the BSA position: 'Ms P', above n 171: disclosure of private facts to one person was sufficient to mount a claim.
[175] Above n 75.
[176] R v Broadcasting Standards Commission exparte BBC (2000) 6 April, CA per Lord Mustil. See Spilsbury, above n 13, 305.
[177] Privacy, as Professor Westin argued, 'is the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others’ in Deakin et al, above n 18, 697. Compare with the rejection of an understanding of control by R Gavison, above n 20, 426-8. See also Evans, above n 167, 77.
[178] Ibid, 77.
[179] Ibid, 99.
[180] Although the English Courts' conservative attitude towards the confidence that can attach to extra-marital relationships in A v B plc, above n 94, and Theakston, above n 31, and discussion above in text accompanying nn 137-140. Notwithstanding, it is to be noted that in Theakston, the Judge held that it was not inherent in choosing to enter a brothel that one's activities would be photographed. He was therefore prepared to award an injunction to prevent the publication of the photographs of the plaintiff taken in the brothel. Similar reasoning might be applied to the facts of L v G.
[181] There has been comment that disclosure of the identity of the donor in this instance would be capable of forming detriment to the donor. See A-G for the United Kingdom v Guardian Newspapers (No 2), above n 84, 639 per Lord Goff.
[182] For example, stories relating to the latest unemployment statistics, problems of obesity in this country or the retail sales figures for the festive season are commonly illustrated by images of people who are unrecognisable.
[183] A discussion of this recognition of the right to anonymity by the Quebec Court of Appeal in the case of Les Editions Vice-Versa Inc v Aubry and Canadian Broadcasting Corporation [1998] 1 SCR 591 can be found in M Bouchard Privacy: A New Trojan Horse? at <http://www.adidem.org> The right was inferred from the right of privacy guaranteed under the Quebec Charter of Human Rights and is therefore of limited assistance to the New Zealand context. However parallels can be drawn with the policy concerns raised.
[184] Evans, above n 167.
[185] See Todd, above n 4, para 14.5.3.
[186] This principle is affirmed by s12 (4) HRA which provides that when considering whether to grant an injunction, the court must 'have regard to the extent to which the information has become, or is about to become, available to the public.’
[187] See P v D, above n 58, 34.
[188] Australian Broadcasting Corp v Lenah Game Meats, above n 12. Cited with approval by the English Court of Appeal in A v B plc, above n 94 and Campbell, above n 100.
[189] Law Commission Breach of Confidence Cmnd 8388, 1981 in Wacks Privacy and Press Freedom (1995) 78.
[190] Ibid, 5.12.
[191] Above n 59.
[192] In A-G v Guardian Newspapers (No 2), above n 84, for instance, Lord Keith at 642 indicated that even where information was in the public domain abroad it might still be appropriate to restrain publication in England where, for example, the publication would bring the information to the attention of more people who otherwise would be unlikely to learn of it.
[193] Ibid. This dicta was noted with approval in B v H Bauer Publishing Ltd [2002] EMLR 8, para 26. Compare with Theakston v MGN, above n 31, para 62 per Ouseley J. This aspect of the decision has been criticised. See Phillipson, above n 97, 737.
[194] [2001] EMLR 41, para 25. In Blair v Associated Newspapers unreported, case number HQ0001236. English Prime Minister Tony Blair and his family made an application for an interim injunction to restrain the publication of an article that appeared in a newspaper containing private family information provided by a former nanny. The fact that the defendant newspaper had already distributed its morning edition containing the article did not rob the information of its confidential quality. See Spilsbury, above n 13, 182.
[195] Above n 90, para 187.
[196] Lindsay J observed that the law at that first stage of the Coco test does not in a trade secret case, question whether the trade secret in question is truly such as might be turned to great commercial advantage or with whether its disclosure would be damaging to the claimant's trade. He went on '[I]t is not as I see it, appropriate in a case of personal or individual confidence to look into any corresponding question, at this first stage.' Douglas B, above n 91, para 187.
[197] The Court of Appeal accepted counsel's submission that the 'highly inoffensive' test proposed by the High Court of Australia in Lemah embraced both the question of whether information was private and also the question of the degree of its significance'. However, the Court did not consider the test 'any worse off for that'. Campbell, above n 100, para 50 per Phillips MR.
[198] See the comments made by Gallen J in Bradley, above n 61, 424. This is a particularly important principle for tabloid journalists given that the mainstay of their stories is generally photographs of celebrities carrying out everyday activities in publicly accessible areas.
[199] Hosking, above n 5, para 140 per Randerson J.
[200] Above n 61, 424. See also A v Wilson and Horton Ltd (HC Auckland 5th May 2000, CP 7/00 Doogue J) where it was held that the shooting by a police officer of a man in a public street was a 'public' fact.
[201] Bathurst CC v Saban (1985) NSWLR 443 where Kirby P was of the opinion that no action based on privacy would succeed where a sports celebrity was photographed in the shower at a sports club, although no tort of invasion of privacy was thought to exist in Australian Law at the time. See also Nicole Kidman and Tom Cruise v Southdown Press Pty Ltd (1993) 26 IPR 125 where the plaintiffs sought to restrain publication of themselves and their daughter.
[202] However, it in unclear whether Laws LJ had in mind a subject who was situated in a private place.
[203] Eavesdropping on conversations in a public place, and the use of particularly embarrassing photographs of activities occurring in a public place have come within the privacy principles of the BSA. See Burrows and Wilson, above n 32, 38.
[204] Les Editions Vice-Versa Incv Aubry and Canadian Broadcasting Corp, above n 183. The plaintiffs in Hosking relied on this decision, but Randerson J considered that it did not support the recognition of a freestanding right of privacy. It was decided on the basis of the Quebec Charter of Human Rights and Freedoms.
[205] Section 5 gives every person 'a right to respect for his private life'.
[206] Prosser, above n 39, 394-5.
[207] Above n 108.
[208] Hosking, above n 5, para 92 per Randerson J: ' [A]lthough he was undoubtedly filmed in a public place, the overall circumstances might well persuade a domestic court that he had a reasonable expectation of privacy and that a duty of confidence arose on the part of the local authority not to publicly disclose the relevant material.'
[209] The actual decision of Campbell is of limited legal significance due to the number of concessions made by the claimant. She conceded that the newspaper was entitled to disclose that she had a drug problem and was receiving treatment for the addiction, since she had untruthfully asserted to the media that she did not take drugs. The Court considered that the additional information that the treatment consisted of attendance at Narcotics Anonymous meetings was of no particular significance and a reasonable person of ordinary sensibilities would not find its disclosure highly offensive.
[210] Above n 100, para 33 per Phillips MR.
[211] Ibid.
[212] Although such a discussion seems justifiable given the personal nature of drug addictions (even though any interest in privacy would probably have been defeated by the fact that the claimant had misled the public on the issue.)
[213] Phillipson, above n 97, 737.
[214] Douglas B, above n 91, para 66.
[215] The pending release of the Hosking appeal by our Court of Appeal may mean that this will occur sooner than might otherwise be the case.
[216] Ms Cheer lectures in Media Law and Torts and was the author's supervisor.
[217] Hosking v Runting (Court of Appeal, CA 101/03, 25 March 2004).
[218] The magazine involved, New Idea, stated after the Court of Appeal decision it did not intend to run the photos.
[219] However, the minority considered that existing legal actions cover the ground and that Parliament should legislate if an actual tort of privacy is to be recognised.
[220] After initially stating this requirement, the j oint judgment refers only to a requirement for 'private facts'.
[221] Above n 216, para 117.
[222] Ibid, para 249.
[223] Ibid, para 256.
[224] [2004] UKHL 22; [2004] 2 All ER 995.
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