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Lulham, Stacey --- "What is, and what should be, the extent of New Zealand's new tort of breach of privacy?" [2005] CanterLawRw 4; (2005) 11 Canterbury Law Review 91


Stacey Lulham[*]

I. Introduction

The majority judgments in the recent Court of Appeal decision of Hosking v Runting[1] ('Hosking') confirmed that a tort of disclosure of private information exists in New Zealand law.[2] However, this occurred in the face of strident opposition by the minority, based on fears that freedom of expression will be threatened. The following discussion will determine whether these concerns are justified and suggest a future course of development for the uncertain aspects of the tort.

Current New Zealand Law

This new tort has developed over several years, being gradually established by High Court dicta.[3] The majority in Hosking approved these developments and elucidated the elements of the tort:

a. the existence of facts in respect of which there is a reasonable expectation of privacy; and
b. publicity given to those private facts that would be considered highly offensive to an objective reasonable person.[4]

There is also a defence of legitimate public interest in the information.[5]The Law in Other Jurisdictions

The United Kingdom does not recognise a privacy tort. However, its courts have given effect to a right to privacy by expanding the doctrine of breach of confidence. The traditional requirements of confidence were established in Coco v AN Clark (Engineers) Ltd:

(1) the information must have the necessary quality of confidence about it; (2) the information must have been imparted in circumstances importing an obligation of confidence; and (3) there must be an unauthorised use or disclosure of that information to the detriment of the party communicating it.[6]

Since the enactment of the Human Rights Act 1998 (UK), the second requirement has been all but eliminated. Private facts can be protected, even if there is no pre-existing relationship of confidentiality. As a result, although it is generally agreed that there is no law of privacy,[7] the new expanded confidence doctrine does protect the right to privacy.[8] Australian judges have not been so bold regarding privacy protection. Although Victoria Park Racing and Recreation Grounds v Taylor[9] was widely believed to stand in the way of the development of a privacy tort, the High Court decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd ('ABC’) declared that this was no longer the situation.[10] Furthermore, the case contains some useful discussion of privacy protection.[11] However, no firm conclusions were reached as to whether Australia should expand its privacy protection, and if so, which method is preferable. The main impression is one of indecision.[12] Several lower-level decisions since ABC have mentioned the tort, but have come to different conclusions. Grosse v Purvis held a privacy tort exists[13] but other decisions have denied this.[14] The Canadian Charter of Rights and Freedoms 1982 does not specifically guarantee a right to privacy, and although the right to be free from search and seizure has been broadly interpreted to include a reasonable expectation of privacy, this does not apply to private citizens.[15] However, statutory torts of privacy have been enacted in three provinces,[16] and s 5 of Quebec's Charter of Human Rights and Freedoms guarantees a right to respect for private life.[17]

Four separate privacy torts are recognised in the United States, one of which is a tort of unreasonable publicity given to another's private life.[18] This cause of action, from which our privacy tort descends, protects against public disclosure of a matter concerning another's private life where the matter publicised:

a. Would be highly offensive to a reasonable person; and
b. Is not of legitimate concern to the public.[19]

However, the importance that the United States' courts place on freedom of expression means that, in practice, privacy claims rarely succeed.[20]

II. Is Privacy Protection Needed?

There is insufficient space in this analysis to discuss fully the merit of privacy protection, and whether there is a philosophical need for a prohibition against disclosing true private information. The author submits that there is such a need, and agrees with Tipping J's statement in Hosking that '[i]t is of the essence of the dignity and personal autonomy and well-being of all human beings that some aspect of their lives should be able to remain private if they so wish.'[21] The following discussion proceeds on the basis of this assumption.

III. Is a Privacy Tort the Best Method of Protecting Privacy?

Legislation is often identified as the preferable form of privacy protection.[22] However, in the absence of legislative action, the judiciary is faced with three choices: to create a new tort of privacy; to expand the doctrine of breach of confidence, as the United Kingdom has done; or to include privacy protection within existing causes of action in a piecemeal fashion. Some argue that the United Kingdom approach is the logical method of addressing the right to privacy. In Campbell v MGN ('Campbell'), Lord Hoffman identified the 'artificiality of distinguishing between confidential information obtained through the violation of a confidential relationship and similar information obtained in some other way.'[23] Randerson J echoed these views in the High Court in Hosking, citing Lord Bingham's comments that the incremental development of the law of confidence has the advantage that 'rules are forged in the furnace of everyday human experience.'[24] He concluded that New Zealand should duplicate these developments.[25]

However, the United Kingdom approach has been almost universally criticised in New Zealand as leading to confusing results. Its detractors include Gault P, Tipping J, and even Keith J, who delivered a dissenting judgment in Hosking.[26] The creation of a privacy tort is vastly more logical than the expansion of confidence. The primary problem is that, although confidence and privacy are similar and may overlap, they are essentially different concepts.[27] Confidence is founded on the integrity of confidential relationships and protects secrets reposed in trust.[28] Privacy, however, is founded on individual autonomy and protects the right to personal autonomy and to be let alone.[29] As examples, consider images of a public place[30] or information in the public domain[31] (such as previous convictions). The protection of information of this kind under the umbrella of 'confidentiality' leads to artificial results. Events such as those which occurred in Peck v United Kingdom, where a person in an unstable psychological state had just attempted suicide,[32] are difficult to term 'confidential' in the ordinary sense of that word because they occurred in public. However, it is not such a stretch to call them 'private'.[33] Even those denying the existence of a privacy tort concede this artificiality. In Campbell, Lord Nicholls felt 'not altogether comfortable' with the unnatural description of personal information as 'confidential', rather than 'private'.[34] Keith J similarly had difficulty with using confidence where there is no relationship between the parties, as '[t]he very word "confidence", its origins and the body of law surrounding it appear to me all to require that an element of trust or something equivalent exist between the parties.'[35] This artificial extension of confidence would cause confusion and uncertainty. Recognising privacy interests by providing a remedy, while calling it a different name and maintaining that no 'right to privacy' exists, is contradictory, and would confuse both the public and the media regarding the scope of privacy law. On the other hand, the privacy tort is a clearer, more transparent,[36] and 'conceptually far tidier'[37] means of analysis.

Furthermore, expanding the law of confidence would distort it.[38] Removing the requirement of a relationship between the parties would drastically alter the law and call into question established law in areas such as employment and trade secrets.[39] Would a pre-existing relationship still be required? Would the test for whether commercial information is confidential change from the current requirement that it not be trivial or common knowledge to a requirement of a reasonable expectation of confidence?[40] Would the greater weight given to freedom of expression, and the establishment of a public interest defence, also apply in commercial contexts?[41] The third option is the piecemeal approach espoused by Anderson J. This would mean attempting to fit privacy cases into whatever existing area of law can provide a remedy. Of course, if there is no available cause of action then no remedy can be granted.[42] As is detailed above, for the public to have confidence in the law, it must be easily accessible and comprehensible. If the law protecting private facts from publication is clarified in one doctrine, it is easier for members of the media to understand their responsibilities and act accordingly. On the other hand, to conceal a law that protects privacy in a series of unrelated remedies like '[p]eeping, peering, eavesdropping, trespassing, defaming, breaking or exploiting confidences, publishing matters unfairly',[43] breaching Broadcasting Standards Authority (BSA) rules and harassing is to defeat this aim. Additionally, if no suitable field of law can be found then a deserving case may go without a remedy. Overall, a privacy tort is the preferable form of privacy protection.

IV. Freedom of Expression

In determining the future development of the tort, it is vital to consider freedom of expression. This right, codified in s 14 of the New Zealand Bill of Rights Act 1990, is 'of the highest importance in a modern democracy,'[44] and it is crucial that the new tort not impinge too greatly upon the right to free speech. There are concerns that the difficulty of defining 'privacy' means that the tort will be applied too widely.[45] Uncertainty will also be present given the difficult subjective judgments required under the tort.[46] Keith J also fears that the tort will have a chilling effect on free speech.[47] Lange v Atkinson concluded that a chilling effect genuinely does exist in the context of defamation, caused by uncertainty in both the principles of defamation and in their application.[48] This is likely to be even more so in a new tort with little history of judicial consideration. It is submitted that the uncertainty of the tort and the subsequent risk of chilling free speech are insufficient to overwhelm the desirability of the tort. First, the oft-cited difficulty in clearly defining privacy is irrelevant here. The tort does not create a sweeping 'right to privacy', with infinite possible applications. It is limited to a specific facet of privacy, namely publication of private information.[49] Furthermore, the elements of the tort are clear.[50] Any current uncertainty regarding the exact scope of these elements will be clarified over time on a case-by-case basis. This, the standard method of judicial law-making, is not an unjustifiably uncertain status for the new tort.[51]

Moreover, New Zealand courts have much relevant jurisprudence to help them clarify the law. The tort is well-established in the United States, and a line of New Zealand and Australian cases developing the doctrine already exists. In addition, the United Kingdom's expansion of the confidence doctrine means that privacy has effectively already been given a remedy in another common law jurisdiction. Furthermore, both the privacy tort and the BSA privacy principles were derived from United States authority.[52] The BSA, because of its experience in determining media issues, can provide particular assistance in determining the scope of the tort.[53] In any event, whether the tort or an expansion of confidence is adopted, there would arguably be equal uncertainty and encroachment on freedom of expression. Since the outcome of both options is substantively the same, it is difficult to argue that one method is an unjustified limit on expression while the other is not.[54]

Expression Versus Privacy

In ascertaining the relative weight of privacy and expression, it is useful to look at the extent to which privacy is recognised as a fundamental right.

A right or a value?

Anderson J's dissenting judgment in Hosking views privacy as a value that must give way to the right to expression.[55] However, such an immediate rejection of the importance of privacy is unhelpful. The rights we view as fundamental have only begun to be so viewed as contemporary thought has developed. Privacy's late inclusion in our conception of essential human needs may mean nothing more than that we have only just begun to realise its importance. Its recognition in international human rights conventions indicates its status as a fundamental right.[56]

Section 21 of the New Zealand Bill of Rights Act 1990

Privacy is a recognised rationale behind s 21 of the Bill of Rights, which provides that '[e]veryone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.'[57] Tipping J in Hosking said that the right to be free from search and seizure is 'not very far from' the right to be free from privacy intrusions. Furthermore, he argued that the words 'or otherwise' indicate that the section was intended to apply widely, and can be 'extended to unreasonable intrusions into personal privacy which may not strictly amount to search or seizure.'[58]

This approach has been applied in other common law jurisdictions. Section 8 of the Canadian Charter of Rights and Freedoms 1982, for example, is very similar to our s 21, and has been interpreted broadly to include a right of reasonable expectation of privacy.[59] Similarly, Amendment IV of the American Constitution, establishing the right to be free from unreasonable search and seizure, has also been held to protect privacy.[60] However, although privacy is one of the values underpinning s 21, the section does not guarantee a right to privacy, as the Court of Appeal has stated on several occasions.[61] Privacy is clearly not one of the Bill of Rights' stated rights, especially since its drafters specifically rejected the idea of including a general privacy right.[62]

International Covenant on Civil and Political Rights

It has also been suggested that privacy is established as a fundamental right through New Zealand being a party to the International Covenant on Civil and Political Rights ('the Covenant'). Article 17(1) of the Covenant provides that '[n]o one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence'. The long title of the New Zealand Bill of Rights Act establishes that one of its purposes is to affirm New Zealand's commitment to the Covenant.[63] Thus, although the Bill of Rights Act does not establish privacy as a recognised right on the same footing as expression, the fact that the purpose of the Act is to give effect to a Covenant that includes privacy as one of its fundamental rights indicates that it is appropriate for the judiciary to recognise privacy.

Section 5 of the New Zealand Bill of Rights Act 1990

It is submitted that the Covenant, coupled with s 5 of the Bill of Rights Act, establishes privacy as an acceptable limit on s 14. Section 5 states that 'the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.' As Gault P stated in Hosking, 'it could not be contended that limits imposed to give effect to rights declared in international conventions to which New Zealand is a party cannot be demonstrably justified.'[65]

In determining the extent to which privacy can limit expression, New Zealand's situation can be compared to the United Kingdom. The European Convention on Human Rights and Fundamental Freedoms provides in Article 8 that '[e]veryone has the right to respect for his private and family life, his home and his correspondence'. Article 10 provides that '[e]veryone has the right to freedom of expression.' The United Kingdom incorporated these provisions into domestic law in s 10 of the Human Rights Act 1998 (UK), pursuant to which both privacy and expression are accorded equal weight so that neither right holds presumptive priority over the other.

The fact that privacy is omitted from the Bill of Rights Act may indicate that expression should be the prevailing interest, with privacy interference allowed in more narrowly-defined exceptions than in the United Kingdom.[66] However, it is submitted that the lack of an equivalent to s 10 of the Human Rights Act 1998 (UK) in New Zealand law should not be too great an impediment to the development of the tort. A general privacy right was excluded from the Bill of Rights Act primarily because of its uncertain and contentious boundaries.[67] The new tort provides protection for only one narrow instance of privacy, and the certainty of its elements means that it can be defined clearly (unlike privacy generally). Furthermore, the New Zealand tort does protect the right to expression with its threshold requirements (that is, that the expectation of privacy be reasonable and that disclosure of the information be highly offensive) and the public interest defence. It provides more protection than does the United Kingdom position which does not require offensiveness.[68] Thus, the privacy tort is an acceptable limitation on s 14 of the Bill of Rights Act.

V. Extent and Future Development of the Tort

Since the tort is now an established feature of New Zealand law, it is necessary to examine its extent and determine its ideal future development.

Public Disclosure

Public disclosure of the information is required. This will not usually be an issue. Most cases to date have concerned widespread publication. However, it is unclear how extensive disclosure must be, and whether disclosure to one person will suffice (as in defamation). Gault P commented in Hosking, a case concerning photographs of a celebrity's young children in public, that '[t]he concern of the law, so far as we are presently concerned, is with wide-spread publicity... Publication in the technical sense, for example as applies in defamation, is not in issue.'[69] This is ambiguous: it is not clear whether the question is being left open since it was then not relevant, or, whether widespread publicity (as proposed by the defendants in Hosking) is needed in every case. It is likely that the latter is correct. In the earlier New Zealand case of X v AG, 'extremely restricted publication' to an interested person was not seen to be public disclosure.[70] Furthermore, United States law is clear that the matter must be communicated to the public at large, or, to so many persons that the matter is substantially certain to become one of public knowledge.[71]

However, the position remains uncertain. The BSA may allow publication to only one person.[72] Cheer also notes that widespread disclosure should not be required, as 'any test simply based on an arbitrary number seems unfair.' Instead, she argues that the defamation rule should be followed: any publication is actionable, even if only to one person, but the extent of disclosure is relevant to damages.[73]

It is submitted that, while the arbitrariness of the 'widespread publicity' requirement is undesirable, the defamation principle should not be followed. Its application to privacy would have the draconian effect of prohibiting almost any true personal statement about another: in effect, it would outlaw gossip. Furthermore, disclosure to a small number of people is inconsistent with the idea of privacy, as the information is still within a private sphere.[74] It is submitted that, since the requirement of public disclosure is only one part of the requirement that disclosure be highly offensive,[75] a proportionality analysis could apply: the more offensive the disclosure, the less extensive it has to be. This does not rely on an arbitrary cut-off point, but considers the context of disclosure.

Is public disclosure a separate requirement?

The earlier New Zealand cases followed the United States formulation of the tort, holding that public disclosure was a separate requirement. However, the majority judgments in Hosking consider it part of the requirement that disclosure be highly offensive: that is, the formulation is 'publicity given to those private facts that would be considered highly offensive to an objective reasonable person.'[76] Although the categorisation of this requirement is a minor issue, it is submitted that this new formulation is preferable as it allows a proportional consideration of the extent to which disclosure is public.[77]

Must the disclosure must identify the person?

A more difficult question is whether the disclosure must identify the person. The position in United States is that publication must affect the plaintiff in the eyes of the community.[78] Similarly, some BSA decisions require identification.[79] Although the decision was made on other grounds, Gallen J considered it relevant in Bradley that the tombstone (on which part of a horror movie was filmed) was unrecognisable,[80] implying that recognisability was required under the tort.

However, in L v G, which concerned an anonymised photograph, it was held that identification is not a requirement of the tort. Abbott DCJ argued that the tort relates instead to 'the loss of the personal shield of privacy of the person to whom the information relates.'[81] He interpreted Bradley as saying that the tombstone's unrecognisability only counted against the plaintiff's claim[82] and was not necessarily fatal to the plaintiff's case. The sole authority relied on (other than Bradley) was the Australian case of Bathurst City Council v Saban, in which mention was made that the court may be able to grant relief if a photograph is taken of someone in a shockingly wounded condition.[83] Abbott DCJ said that this was implicit support for the idea that identification is not required, as an accident victim may not be identifiable.[84] This obiter comment is clearly not strong authority. Its focus is the fact that the accident victim would be in a public place rather than the issue of identifiability. It is surprising that the approach of the United States, or that of the BSA, to identifiability are not mentioned.[85] It is submitted that, if the essence of privacy is maintenance of dignity, it is difficult to argue that publication of anonymised information reduces one's dignity.[86] However, even if the common law continues to hold that identification is not necessary, the issue should still be relevant. As was accepted in L v G, whether the plaintiff can be identified, and, if so, to what extent and by which sector of the public, should be relevant in assessing damages.[87] It is also submitted that it should be relevant under the assessment of whether the disclosure is highly offensive. In L v G it is noted that the extent of the plaintiff's distress is likely to be related to the extent to which she or he can be identified.[88] Anonymised disclosure is thus likely to be regarded as less offensive.

Facts in Respect of Which There is a Reasonable Expectation of Privacy

The general extent of the element

Both Gault P and Tipping J state in Hosking that the information must refer to facts in respect of which there is a reasonable expectation of privacy.[89] However, Gault P then continually refers to 'private facts' in the course of his judgment.[90] There may be a difference between these two formulations. By way of example, while there can sometimes be a reasonable expectation of privacy in respect of photographs taken in public, the public location makes it difficult to argue that they can be 'private' facts. It is submitted that Gault P's use of the term 'private facts' is merely a shorthand for the requirement of reasonable expectations. This is demonstrated when he states the two requirements as being: (1) facts with a reasonable expectation of privacy; and (2) highly offensive publicity given 'to those private facts'.[91] The use of the term 'private facts' by Gault P should not be seen as indicating uncertainty regarding this element. This element has usefully been defined by Gleeson J in ABC, whose oft-cited explanation is as follows:

There is no bright line which can be drawn between what is private and what is not. Use of the term 'public' is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved.[92]

Must a fact be private or public?

In a determination of whether information is sufficiently private in the United Kingdom, information can be known by several people before it loses its confidentiality.[93] Phillipson's analysis of when information is 'confidential' identifies two possibilities. First, it could depend on numbers: information will be confidential if only a 'limited', but not a 'substantial', number of people know of it. Phillipson, critical of this 'inherently fuzzy' test,[94] prefers the approach of Lindsay J in Douglas. Instead of determining whether information became public at the time when an arbitrary number of people knew of it, Lindsay J determined the matter according to whether the plaintiffs exercised sufficient control over their wedding or whether they allowed indiscriminate observation of it.[95]

New Zealand discussion has focused more on the particular question of lapse of time than on the more general issue of whether information is private. Tucker held that disclosure of past convictions, a matter of public record, could arguably be prevented because of the passage of time. However, the tort so far provides 'little guidance as to how this operates.'[96] The BSA Privacy Principle (ii) usefully states that '[t]he protection of privacy also protects against the public disclosure of some kinds of public facts. The "public" facts contemplated "concern" events (such as criminal behaviour) which have, in effect, become private again, through the passage of time.' In TV3 v BSA it was noted that consideration of all the circumstances is required. The court must examine the nature, scale, and timing of the previous disclosures,[97] as well as (in the case of convictions) the nature of the offence and the individual's right to put the past behind him or her.[98] Overall, it is not sufficient to identify an arbitrary cut-off point.[99] Similarly, in answering the general question of whether information is private, it is unhelpful to assign an arbitrary figure to the number of people who can know of the information, or number of years that must have passed since the event. Although this 'inherently fuzzy' contextual approach may be difficult to determine, it is the fairest way of ensuring that privacy protection is extended where, and only where, it is deserved.

This is to be preferred to Phillipson's suggestion that the issue of control be the determinative factor. The control approach is only appropriate where the event is capable of being controlled (such as a wedding). It is less applicable to events occurring in public[100] or to previously public facts such as convictions. In any event, the contextual approach can take the issue of control into account.

Photographs: does the tort cover events occurring in a public place?

It is clear that photographs can be termed 'information' under the tort.[101] In the United States, a photograph of an event witnessed in public is deemed a public fact since it is merely giving publicity to a sight that anyone present could see.[102] Hosking left the question open as there was no reasonable expectation of privacy regarding the pictures of the Hoskings' children.[103] However, Gault P arguably indicates some support for the United States approach. While his use of the term 'private facts' is immaterial,[104] and while he mentioned the United Kingdom's flexibility on this issue, he also said that the photographs in Hosking 'do not disclose anything more than could have been observed by any member of the public.' This implies that activity in any public place can be lawfully photographed.[105] However, other authorities reject this inflexible approach. Pursuant to Quebec's Human Rights Charter it is the case that, although there is a lesser expectation of privacy for those participating in public activities, the right to respect for private life is infringed if any image is published without the subject's consent.[106] This approach would drastically curtail expression in New Zealand by making it almost impossible for the media to photograph and report on events occurring in public places. It is reasonable for people to expect that their actions in public will be observed, and perhaps photographed, in the absence of circumstances giving them a real need for privacy protection.

Randerson J saw a distinction 'between the fleeting glimpse of the children which passers-by may have had in the street and the publication of a semipermanent record.'[107] This is clarification that a photograph of a public place is not necessarily allowable on the sole ground that others in that location could have seen it themselves.[108] His comments echo those in Bradley, where it was held conceivable that, in certain circumstances, the fact that something occurred in public would not mean that it should receive publicity.[109] Eichelbaum CJ similarly held in TV3 v BSA that the fact that something occurs in public does not necessarily make it something the public should know about.[110]

The position in the United Kingdom is that a photograph taken in a public place may infringe privacy if it reveals someone to be in position of humiliation or severe embarrassment[111] and if the plaintiff is its true subject rather than being incidentally photographed.[112] Furthermore, even if the photograph looks innocuous in itself, but the text explains that the photograph captures a private matter (as in Campbell), the photograph may still create a cause of action.[113] Similarly, in Bathurst CC v Saban it was held that it may be open to an Australian court to give relief where there is surreptitious photography of the plaintiff in an embarrassing pose.[114]

It is unwise to unequivocally exclude the possibility that a photograph taken in a public place can intrude on a right to privacy. Publicising misfortunes occurring in public places can cause distress and offence just as easily as private misfortunes.[115] Peck is an example of a situation where, whether filmed in a private or public location, publication would gravely intrude on privacy and should not be permitted.

Sexual relationships and shared information

A difficult question is whether the law should inquire into whether information is obtained through marriage or through other types of sexual relationship such as affairs or dalliances with prostitutes. A related issue is how the tort protects information common to two people.

The United Kingdom decisions of A v B (publicising a married man's affairs) and Theakston v MGN (publicising a single man's visit to a prostitute) held that the more stable the relationship, the greater the significance attached to information relating to it. A v B endorsed Theakston's comments that protection will vary according to the circumstances. Sexual relations within marriage will have a high degree of protection, one night stands will have a lesser degree of protection, and brothel engagements less still.[116] This approach implicitly takes into account the morality of the participants' conduct.[117]

It is submitted that, whether sexual life is part of a marriage or a brothel visit, it is a 'particularly intimate' aspect of private life,[118] and exceptional circumstances should be necessary before it is deemed to affect the assessment of the degree of privacy in the information. It is inappropriate for judges implicitly to vary the extent to which the law provides protection depending on their subjective view on the morality of the plaintiff's behaviour. In the rare cases where there is a justification for disclosure, the public interest defence is the appropriate place to consider this.[119]

AvB also held that the less protected the relationship then the stronger the other party's right to talk about his or her experiences in that relationship - this is acknowledgement of the other party's right to expression.[120] Since the parties have a joint claim to the information, Barber claims a legal obligation of silence is inappropriate and calls the right to tell the story of one's own life a fundamental part of free speech.[121] This approach considers the right to expression as part of the assessment of whether the information is private or confidential. It is submitted that this is incorrect. It is clearer to analyse the other party's right to expression separately, as part of the balancing of the plaintiff's right to confidentiality against competing interests.[122] Furthermore, although the right to expose an intensely private matter may rightly include the right to tell one's story to one's friends and acquaintances, it is less justifiable to give the matter widespread publicity.

In any case, it is unlikely that this aspect of A v B will be applied in New Zealand. LvG, like Theakston, was concerned with the relationship between a prostitute and her customer[123] but the issue was not discussed in detail. This implies that Abbott DCJ did not consider the relationship's 'immorality' or impermanence, or the other party's right to expression, to be important factors. His only comment was that there would be little problem with community mores if things occurring within private relationships stayed within those relationships.[124] It can be inferred that he did not believe a moral judgment should affect the assessment of whether the information was private. It is hoped that this approach will prevail in New Zealand.

The manner in which information is obtained

If information is obtained in an intrusive, improper way then an issue is whether this can be considered in assessing whether that information is private. If so, what is the extent of this? Is the intrusive acquisition of information, regardless of its nature, sufficient to make information private? The tort of intentional intrusion is well-recognised in the United States.[125] It protects against intrusion upon seclusion or solitude, and extends beyond physical intrusion to actions like eavesdropping through wiretapping or microphones.[126] The matter intruded on must still be private, and the intrusion must be highly offensive.[127] The position in the United States influenced the development of the BSA Privacy Principle (iii),[128] which provides:

There is a separate ground for complaint... in factual situations involving the intentional interference (in the nature of prying) with an individual's interest in solitude or seclusion. The intrusion must be offensive to the ordinary person, but the individual's interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

The extent to which intrusion should be relevant in the privacy tort has seldom been considered in New Zealand.[129] Randerson J said in the High Court in Hosking that the manner in which a photograph of a public place is obtained is a relevant factor in assessing whether it is actionable.[130] Tipping J suggests in Hosking that the manner of acquisition is enough in itself to make information private. He says that a reasonable expectation of privacy can arise from the nature of the information, 'or the circumstances in which the defendant came into possession of it’, or both.[131] In the United Kingdom the method of acquisition is considered relevant. Hellewell v Chief Constable of Derbyshire held that use of a telephoto lens may create liability.[132] In Peck, the plaintiff's unawareness that he was being filmed surreptitiously was relevant.[133] In A v B it was conceded that unlawful means, such as bugging, might shift the balance towards privacy protection.[134] Similarly, in Campbell, the fact that the photographs were taken deliberately, in secret and with a zoom lens, meant that liability was possible even for photographs taken in a public place.[135] However, the judgments in Campbell differ as to whether improper means are enough in themselves. Lord Hoffman believed that a photograph taken by intrusion into a private place may by itself be an infringement, even if there is nothing embarrassing about the picture.[136] Baroness Hale disagreed and said that the activity photographed must be private. She saw the mere fact of covert photography as insufficient to make information confidential.[137] Intrusive means are also seen as a relevant factor in Australia. In Bathurst CC v Saban it was said that it might be open to a court to give relief if a plaintiff was photographed surreptitiously in an embarrassing pose.[138] In ABC, Callinan J and Gleeson CJ both considered intrusiveness relevant.[139] Unlawful or intrusive means of acquisition may be relevant in tending to show that the information is private. It may also show that disclosure would be objectionable.[140] Furthermore, information acquired intrusively is a form of expression that is less deserving of protection.[141] Additionally, it is a compelling factor in favour of granting an injunction,[142] and may be relevant in awarding damages. In L v G, for example, it was held that damages were increased by the defendant's contemptuous and exploitative treatment of the plaintiff.[143] However, it is submitted that wrongful intrusion should not in itself deem information to be private information.[144] The tort is designed to protect private facts. To allow it to protect facts in respect of which there would otherwise be no expectation of privacy would remove its clarity. Although the two may overlap, wrongful intrusion and wrongful disclosure are different concepts and should be kept distinct.[145] As well, removing one element of the tort, the private fact requirement, would make its boundaries more uncertain. If intrusive means are judged to merit relief in themselves, either a separate cause of action (as in the United States and under the BSA principles) can be created, or the equitable doctrine preventing disclosure of improperly-obtained information can be applied. Otherwise, specific legislation can prohibit secret filming and bugging.[146]

Commercial interests

The question of whether the tort can protect commercial interests, and if so, to what extent, has not yet arisen in New Zealand. However, both personal and commercial interests are protected in the United Kingdom. In Douglas, the wedding of two actors was held to have the necessary quality of confidentiality even though the couple was planning to sell photographs of that wedding to a magazine. However, the fact that the couple were not seeking to protect their privacy but to control it was held to affect the balance between privacy and expression.[147] It was also held that there is no bright line between personal and commercial interests[148] and that by retaining the right of veto over the photographs the plaintiffs had retained a sufficient element of their privacy to warrant protection.[149] The developments in the United Kingdom are justifiable because confidence is a broad doctrine, the original purpose of which was to protect commercial interests such as trade secrets. It is thus less of a stretch to protect the right to exploit images of oneself under confidence than it is under privacy. Two separate categories of the new extension of this doctrine can be created: one to protect commercial information (as in Douglas); and one to protect dignitary interests (that is, 'privacy' in its true meaning).[150] Thus, Douglas-style commercially valuable interests could be viewed as analogous to a trade secret or to the American tort of appropriation of name or likeness.[151] The judgment of Lindsay J supports this by saying that the information deserved the protection that would be accorded to trade secrets.[152]

However, interests like the Douglas' should not be protected under the doctrine of privacy. Information that is soon to be published in any event cannot logically be called 'private'. The interest that they were trying to protect was their right to control their image, and to exploit that image for commercial gain.[153] It is inappropriate to allow the right to privacy to become a 'saleable commodity'.[154] New Zealand judges have several more viable options to protect such interests. It would be possible to fit them under our (more restricted) confidence action, and require that the information be obtained through a relationship of confidence. It would also be possible to fit them under some other head of liability, such as trespass. Finally, there is the option of developing a new and separate tort prohibiting commercial exploitation as is the case in the United States. Alternatively, Morgan suggests that even if some of the information is commercially valuable, damages should only be granted in respect of the personal aspects of the information: the information can still appropriately be called 'private' and the cause of action more accurately reflects the true intention of privacy protection, that is, to protect people from emotional harm.[155] If these interests are protected then an injunction should not be available as a remedy because commercial interests are more easily compensated financially than personal interests. As was recognised in Douglas, damages should be adequate compensation.[156]


The issue of whether a corporation can be the subject of a privacy claim has not yet been discussed in New Zealand. A serious obstacle in the path of allowing corporations to sue is that the privacy tort protects human dignity and emotions, which corporations do not have.[157] In ABC, where a company sought privacy protection, Gummow and Hayne JJ stated that companies lack 'the sensibilities, offence and injury to which provide a staple value for any developing law of privacy (sic).'[158] Gleeson CJ and Kirby J agreed, holding that applying privacy to corporations was 'incongruous'[159] and 'artificial'.[160] The legal position in the United States also generally supports the proposition that only individuals can claim a right to privacy.[161]

However, Taylor and Wright argue in favour of allowing corporations to sue, as they can do in Germany.[162] They claim firstly that it is contradictory for the law to create fictitious persons, but then use that fictitiousness as a reason for denying them rights.[163] However, if the right protects personal feelings, it would be incongruous to allow a fictitious person to sue (to protect its fictitious feelings?). Taylor and Wright then argue that the personal feelings of the company's director should be considered.[164] This is nonsensical, as the claim does not concern the director personally. One cannot recover damages for breach of another's rights. Finally, they argue that corporations need protection from computer hacking and industrial espionage.[165] However, there are other, more appropriate, methods of granting protection such as specific legislation,[166] the usual breach of confidence doctrine, and the equitable doctrine of improperly-obtained information. Only individuals should be able to access New Zealand's privacy tort.

Highly Offensive Disclosure

The third element of the tort is that the publicity given to the private information 'would be considered highly offensive to an objective reasonable person.'[167] Both the United States and the BSA also have a 'highly offensive' requirement: only publicity that is 'truly humiliating and distressful or otherwise harmful' will be protected.[168] The BSA position is that the disclosure must be offensive, not the facts themselves.[169] The test is objective. In L v G it was said that 'otherwise the right to privacy would be rendered nugatory'.[170] The tort is not intended to protect the 'shrinking soul' who is unusually sensitive about publicity.[171] However, the test also contains a subjective element: whether a reasonable person would feel highly offended if she or he was in the plaintiff's position.[172] The extent and nature of publication is relevant.[173] In P v D (which concerned disclosure of mental illness) it was also suggested that society's likely reaction to the information is relevant: an adverse reaction would tend to show that a reasonable person in the plaintiff's position would be upset by the disclosure.[174] However, even if society has a more enlightened attitude, as with mental illness, that 'does not take into account actual human emotion and the value which people place on having intimate personal information... kept private,' and disclosure may still be offensive.[175]

Highly or substantially offensive?

The 'highly offensive' requirement originated in the United States version of the tort.[176] However, there has been much unease over this formulation. The present concern in New Zealand is Tipping J's preference for the level of offence required to be substantial, not high. He said that this would be 'a little more flexible, while at the same time capturing the essence of the matter.'[177] His reason was that, while disclosure must be at least substantially offensive (so that expression is not too readily limited and trivial breaches are not actionable),[178] he could envisage circumstances where it would be unduly restrictive to require a high level of offence.[179] Cheer further criticises the offensiveness test as being vague, and a purely social and value-laden concept.[180] Moreham submits that 'offence' is an inappropriate way to describe what is suffered.[181] Instead, tests of substantial distress[182] or of humiliation or affront to dignity[183] are suggested. It is submitted that the 'highly offensive' test should be preferred to the tests of 'substantially distressing' and 'substantially offensive'. There is unlikely to be any discernable difference in practice between disclosure that causes distress and disclosure that causes offence. Similarly, there is unlikely to be much difference between highly and substantially offensive disclosure. Tipping J himself conceded that the difference may be a mere verbal quibble.[184] It is preferable for the tort to be consistent with United States and BSA law on this point, so that the courts have relevant authority to draw on when determining whether this requirement is met. As a result, whatever vagueness the offensiveness test may hold is unlikely to remain in light of the many decisions on this point.

Is this a separate requirement?

Judges and commentators alike doubt whether a test of offensiveness (or distress) adds anything to the definition of the tort.[185] Tipping J would prefer the question of offensiveness to be dealt with within the requirement of a reasonable expectation of privacy.[186] He echoes similar suggestions made by Randerson J[187] and Gleeson CJ, who commented in ABC that the 'highly offensive' requirement 'is in many circumstances a useful practical test of what is private.'[188]

Similarly, although the United Kingdom courts appear to have cited Gleeson CJ's discussion of private information (referring to the 'highly offensive' test) with approval,[189] a closer analysis reveals that an assessment of offensiveness is not required. In Douglas, Lindsay J said that Gleeson CJ's statement was not an exhaustive definition of what is private, so the offensiveness test is not a necessary part of the cause of action.[190] Lord Nicholls stated in Campbell that only a reasonable expectation of privacy is required, and the stricter offensiveness test should be used with care.[191] Lord Hope, Baroness Hale and Lord Carswell similarly held that, although Gleeson CJ's formulation may be useful in borderline cases, it is not necessary where information is easily identified as private.[192] not necessary where information is easily identified as private.[192] It is submitted that, contrary to recent criticism, the offensiveness requirement is a useful addition to the tort. It allows consideration of factors such as society's likely reaction to the information, intrusive acquisition, and the style and extent of publication.[193] Considering these factors in a separate element allows the 'reasonable expectation' test to remain solely concerned with the private nature of the information. This promotes clarity. Because in the Human Rights Act 1998 (UK), rights of privacy and expression are of equal value, it is appropriate that the United Kingdom doctrine contain only a threshold requirement to establish that there is indeed private information at stake, and then proceed straight to the balancing of competing interests. In New Zealand, however, the fact that privacy is not explicitly recognised in the Bill of Rights indicates that something more than this is required to make the privacy side of the equation weighty enough for the cause of action to proceed.

Details: the extent to which information can be disclosed

The issue is, if something can be the subject of legitimate comment, is the level of detail regarding that subject relevant?[194] Campbell held that an article can go into detail to some extent in order to give a story credibility, especially if it is rebutting a denial of the facts in question. It also mentioned that journalists should be allowed a reasonable margin of appreciation regarding the amount of detail to be included,[195] because of the 'practical exigencies of journalism', such as the speed and lack of information with which editorial decisions must be made.[196] Baroness Hale argues that 'to expect too minute an analysis of the position is in itself a restriction on [the media's] freedom of expression.'[197]

However, there is a 'certain lack of attractiveness' in allowing every detail of a private matter to be made public.[198] Interferences with privacy should be the minimum necessary to satisfy the competing right to expression.[199] Even if journalists are given some leeway, there should still be limits. The extent of factual detail can make the event more vivid and impinge more strongly on the subject's privacy. A detailed disclosure may be offensive where a brief one would not, because of the increased intrusion into privacy.


It is arguable that photographs are more likely than text to be held to be a breach of privacy. In the United Kingdom, the courts have been more stringent with photographs,[200] as they 'may be a more vivid form of information than the written word'[201] and can convey something over and above a mere description.[202] As a result, in Theakston and Campbell some text describing the events in question was allowed, but photographs were held to be a breach of privacy.[203] It is submitted that, depending on the particular factual circumstances, this is the correct approach. As with extra detail, a visual depiction brings the image to life in an immediate and upfront way.

Standard of publication

Another issue is the extent to which the style (rather than the substance) of a disclosure can be considered. Is it relevant if a media publication or broadcast has a salacious or malicious tone?[204] Gault P and Blanchard J stated in Hosking that '[i]t is not a matter of judges being arbiters of taste.'[205] This echoes United Kingdom authority that it is irrelevant if the publication in question is lurid.[206] The sole question is whether the substantive content of the information is properly the subject of restraint.[207] The courts in the United States also consider it irrelevant if the publication is 'morbid, gruesome, lurid, sensational, immoral, and altogether cheap and despicable.'[208] It is submitted that, although the style of a publication cannot affect whether a disclosure concerns private information, it may be relevant in assessing whether that disclosure is objectionable. The requirement that the disclosure (not merely the facts themselves) be offensive implies that style can legitimately be considered. Although the courts should clearly still distinguish between true breaches of privacy and simple 'breaches of good taste,'[209] a mocking publication would be more offensive and hurtful than a respectful and sensitive disclosure that aimed to bring the matter to public attention without gravely impinging on the individual's dignity. As was said in Hosking, the 'limitations ... are those of common decency.'[210]

Public Interest Defence

The defence of public interest is an important safeguard of the freedom of expression. Hosking clarified that this is indeed a defence, rather than a fourth element of the tort as was held in P v D.[211] Thus, the onus is on the defendant to prove that the public interest exists.[212]

The definition of 'public interest' has been widely discussed, both in New Zealand and overseas. It is usually emphasised that the matter must be one of legitimate public concern, about which the public needs to know. It is not enough to be merely of general curiosity.[213]

However, in A v B, Lord Woolf CJ called the usual definition of 'legitimate interest' into question when he said that the public had an 'understandable and so a legitimate interest' in being told the information.[214] His reasoning was that if newspapers do not publish information in which the public is interested, there will be fewer newspapers, which is contrary to the public interest.[215] This is similar to the United States defence of 'newsworthiness' ,[216] which requires only that the matter be one of 'genuine, if more or less deplorable, popular appeal.'[217]

Lord Woolf CJ's much-criticised statement that the public's interest can be 'understandable and so ... legitimate' shows a clear leap in reasoning,[218] and collapses the long-held distinction between the public interest and what is interesting to the public.[219] Anything in the media would by definition be newsworthy, so that the press would be judges in their own case.[220] Interestingly, in Campbell the Court of Appeal attempted to limit Lord Woolf s comments by interpreting them as not applying to private facts which it would be offensive to disclose.[221] This indicates that his comments do not represent English law.[222]

In any event, it is arguable whether the reporting of matters of public curiosity is in fact in the public interest. Phillipson argues that the opposite is true. In the fiercely competitive media, lurid news in one newspaper drives down standards in other publications. As a result, trivial stories squeeze out stories of real political and social importance.[223] Lord Woolf's comments contradict New Zealand discussion of the defence, and do not represent New Zealand law. Adoption of such a wide defence would be fatal to the development of the tort, as allowing the media to publish almost anything would make the right to privacy a hollow one,[224] as in the United States. For privacy to have any substance, it must have the ability to defeat the general theoretical public interest in all publication. If speech has little public benefit except in theory, but causes significant harm, the right to expression must give way.[225]

Public figures

It is unclear whether people such as sportspeople and entertainers, who attract much publicity, can be classed as 'legitimate' subjects of interest alongside figures of public importance (particularly politicians). The defence clearly allows scrutiny of the lives of public office holders, where their private behaviour 'so adversely affects his [or her] public duties, or is so hypocritical, that the public is likely to be misled.'[226] It is also unobjectionable that, if a public figure publicly and falsely denies a particular allegation,[227] or presents a misleading impression,[228] correction of the false information is allowed. This was agreed by both parties in Campbell, where a supermodel falsely denied that she was addicted to drugs.[229] Beyond these clear limits, however, the extent of the defence is hotly debated. According to one line of thought, there is a legitimate public interest in the activities of celebrities. Lord Woolf CJ said in A v B that even trivial facts about public figures may be of great interest to the public,[230] and their conduct may be an appropriate subject of comment where a private individual's would not.[231] Public figures may be role models if they hold a position where a higher standard of conduct is rightly expected and others seek to emulate their conduct.[232]

Several commentators say that the line is to be drawn between public figures who court publicity, who have less ground to object to intrusions, and those who do not.[233] Phillipson identifies two possible applications of the 'courting publicity' test. One possibility is that those who court publicity in one area of their private life lose all privacy protection.[234] Alternatively, a differentiated approach removes protection only for those areas of private life in respect of which publicity was sought. This second approach is favoured by most United Kingdom authority.[236] Douglas and Campbell both hold that the mere fact of public prominence does not mean that the media can lay bare one's private life.[237] New Zealand has shown signs of adopting this approach. In Tucker (which concerned the past convictions of a man seeking public donations) it was said that a person may lose a right to privacy by presenting him or herself to the public eye for appraisal.[238] In that case, the plaintiff invited 'some degree of examination of his personal background and "worth"', but this was not given undue weight because the courting of publicity was forced by his need for funds.[239] A still narrower interpretation is that even courting publicity is insufficient to invoke the defence. Phillipson argues that it is incompatible with the right to control and selectively disclose personal information. He compares it to a friend being shown a personal letter on one occasion, and then assuming she or he has the right to read all other personal letters uninvited.[240] Singh and Strachan agree that everyone should enjoy the right to respect for private life, irrespective of whether they were thrust into the limelight, or even chose to step into it.[241]

It is submitted that, as discussed above,[242] the mere fact that the public is interested in the personal lives of celebrities should not remove their right to privacy. The comments in A v B do not distinguish between public curiosity and the public interest, and allow the media to manufacture their own defence in advance by creating a cult of celebrity around an individual.[243] The defence should generally apply only to the actions of public office holders. Even where information concerns a political figure but does not relate to their ability to perform their public duties, or to the accuracy of the image they present to the public, that information is of little public importance and should be treated in the same manner as information about non-political public figures.

Instead, it is submitted that New Zealand should continue with its adoption of the 'courting publicity' test. Those who expose their private lives to public scrutiny must accept that others will continue to discuss their lives, as people should be prevented from possessing sole control over their public image.[244] However, this should only apply to the particular aspect of private life in respect of which the public figure sought publicity. Even in the area of private life where publicity has been sought, a claim should also still lie where more intimate detail is disclosed than in the plaintiff's voluntary disclosures.[245]

However, it is submitted that it is preferable to consider the matter under a defence of consent, rather than the public interest defence. If a public figure has revealed so many personal details about a particular aspect of his or her life that it is no longer a private matter, she or he should be held to have waived his or her right to privacy and impliedly consented to further public discussion of that matter. Wacks hints at such a possibility in saying that the courting of attention may mean that the right to privacy is waived.[246] In this way, the public interest defence is clarified as protecting only important speech in which the public have a legitimate concern, thus ensuring that the elements of the tort are clearly and appropriately defined. The definition of 'legitimate public interest', worked out over years of cases, should not have its boundaries blurred where this can be avoided. Similarly, where someone falsely denies an allegation or puts forward a misleading impression, a preferable interpretation is that, by lying to the public, the public figure is taken to consent to further discussion and correction of the lie. The result may be the same as under the public interest defence, but the means of analysis are clearer. True matters of public significance, such as political concerns, are then distinguished from matters which may not have this important character (such as whether Naomi Campbell had a drug addiction) but about which the law should surely allow correction. This is also consistent with the BSA, as Privacy Principle (vii) establishes that '[a]n individual who consents to the invasion of his or her privacy cannot later succeed in a claim for breach of privacy.' An interesting question is whether fame affects other aspects of the tort. Randerson J held, and Gault P concurred on the point, that, even though there may be no public interest in the matter, celebrities 'necessarily sacrifice' a reasonable expectation of privacy[247] for two reasons. First, it is inevitable that the media will subject celebrities to closer scrutiny and second, the public 'has a natural curiosity and interest' in the personal lives and activities of celebrities.[248] Furthermore, celebrities may also have more difficulty in establishing that publication will cause damage. Since they are used to press coverage, they may find it harder than other people to show that they will be emotionally harmed by the disclosure.[249] It may indeed be proved on the facts that a plaintiff is used to invasions of privacy and thus suffers little emotional harm. If so, it is unobjectionable for any damages awarded to be lower. However, deciding that the public's 'natural curiosity and interest' can remove one's reasonable expectation of privacy is undesirable, as it allows covert consideration of the public interest and would blur the definition of 'legitimate public concern'. As well, this would confuse the elements of the tort: expectation of privacy should relate only to the nature of the information. Furthermore, it would be unjust to allow that, because one expects that one's legal rights will be infringed, the opportunity to complain about the infringement is therefore removed.[250]


Another difficult question is whether children should receive any special consideration. The United Nations Convention on the Rights of the Child states in Article 16(1) that '[n]o child shall be subjected to arbitrary or unlawful interferences with his or her privacy ..', and Article 3(1) states that '[i]n all actions concerning children ... the best interests of the child shall be a primary consideration.' The BSA echoes this in Privacy Principle (vii), which provides that '[c]hildren's vulnerability must be a prime concern ... [B]roadcasters shall satisfy themselves that the broadcast is in the best interest of the child.' Similarly, the New Zealand Press Council's Statement of Principles establishes that editors should have particular care and consideration when reporting on children.

Hosking contains much rhetoric espousing the need to protect children. Gault P stated that one must not lose sight of their special position[251] and the need to give their vulnerability real weight.[252] Randerson J similarly said there is 'no question that children are vulnerable members of our society', whose best interests are a primary consideration.[253] However, these fine sentiments were given little effect. Both judges talked of the public's natural interest in the personal lives of celebrities 'and their children',[254] and said that the children's expectations of privacy are likely to be diminished.[255] Furthermore, if parents choose to place children in the spotlight, the public's right to receive information about the children may be given greater weight.[256] Finally, they held that the current elements of the tort provide enough protection for children,[257] and that increased protection would create major practical difficulties for news media.[258] It is submitted that this approach is flawed. Randerson J and Gault P merely pay lip service to the idea of protecting children without truly recognising their vulnerability. Children are susceptible to severe harm through invasion of their privacy. They have not yet developed mechanisms for coping with embarrassment[259] and are susceptible to psychological damage.[260] As discussed above, the public's interest in a celebrity cannot in itself classify the matter as one of legitimate public interest, and one's status as a public figure should not affect one's reasonable expectation of privacy.[261] These arguments apply with even greater force when the subject of public curiosity is not a public figure but his or her child. A parent's decision to place a vulnerable child in the public eye should not be determinative: children rarely choose to be famous, as Randerson J in fact recognised.[262]

There are several options for ensuring children's privacy is adequately protected. Evans suggests forbidding the media from targeting any child for a photograph where consent is deliberately circumvented since it was likely to be withheld.[263] She calls this option 'justifiable and workable',[264] but it goes too far in inhibiting expression. Alternatively, des Tombe suggests amending the public interest test so that 'overwhelming public concern' is required when children are involved.[265] This gives weight to the fact that embarrassing matters concerning children are rarely newsworthy.[266] Another option is to include this matter in the offensiveness test, so that it is more offensive to disclose a private matter when the subject is a vulnerable child. By following the BSA Privacy Principle (vii) approach, any disclosure not in the child's best interests could be deemed highly offensive. Both suggestions recognise the special position of children. Furthermore, they do not impinge too greatly on the media's freedom of expression. The need for the information to be private remains so that publication of innocuous photographs such as those at the centre of Hosking would still be allowed.

Commercial publication

Several commentators argue that the public interest defence should not protect speech intended only to increase circulation or ratings and maximise profits. Free speech that criticises the government is different from speech that enriches publishers while hurting weaker individuals.[267] However, Gault P considered it unhelpful to categorise speech as commercial or otherwise[268] as whether or not speech is commercial is a 'red herring.' The important consideration is the subject matter itself.[269] Each case should be determined on the public value of the information, regardless of its commercial use.

Privacy weighed against public interest

Once a claim meets the elements of the tort and proceeds to the discussion of expression, the particular level of public interest must be evaluated. The claim for expression cannot be 'monolithic, of unvarying weight', as it would then be impossible to balance with privacy in a principled way.[270] In this regard, New Zealand can learn from the United Kingdom courts. While they agree that expression has no presumptive priority over privacy,[271] their decisions sometimes undermine this point. For example, even though in Theakston it was held that there was no public interest in publication, the right to expression still allowed some disclosure of private information.[272] Similarly, in A v B it was held that any press interference has to be justified, whether or not public interest exists.[273] The reason for this contradiction is that, rather than evaluating the extent of legitimate public interest, the United Kingdom courts often confusedly consider it alongside the general right to expression.[274] This results in a finding that there is a weighty claim for expression even when public interest is in fact minimal. New Zealand should ensure that, in balancing privacy with expression, the extent to which privacy is breached is compared only with the extent to which there is legitimate public interest in the information.

Method of weighing privacy against public interest

The competing rights are balanced using the proportionality approach. Hosking recognises that the greater the invasion of privacy, the greater must be the level of legitimate public concern.[275] Several New Zealand decisions provide guidance on how to weigh competing rights and decide whether the requirements of s 5 are met. They conclude that the importance of privacy in the particular case must be compared with the need for expression; the limit on expression must be the least possible to protect privacy and all possible implications of the decision must be contemplated.[276] The exact process of analysis is irrelevant, as long as s 5 is considered in a substantial way.[277] It is for this reason that P v D has been criticised, as it never explicitly referred to s 5 and only considered expression in a 'cursory' way.[278] The importance of expression means that infringements on its scope must be discussed. Happily, the judgments in the Court of Appeal in Hosking did carry out such an analysis, and it is hoped that this development will continue.


Prior restraint

The usual test for whether to grant an interim injunction, found in American Cyanmid v Ethicon,[279] is that there must be a serious question to be tried, and the balance of convenience must favour the party seeking the injunction.[280] However, if a defence of truth, qualified privilege, or honest opinion will be raised in a defamation case, an injunction is only granted in exceptional, clear and compelling circumstances, where there is no reasonable possibility of a legal defence.[281]

In the privacy context, the extent to which the doctrine of prior restraint should apply is unclear.[282] The Court of Appeal in Hosking argued that the defamation prior restraint rule applies equally to privacy, although the granting of injunctions was not ruled out. Gault P and Tipping J both said that they will rarely be available and damages will be the usual remedy.[283] If the privacy tort had a less stringent approach to injunctions, plaintiffs could avoid the principle of prior restraint by pleading in privacy, not defamation, so that 'publication of allegedly false matters would not be restrained but publication of allegedly true ones would.'[284] In Tucker a different approach seemed to be preferred. Although McGechan J concurred '[t]o some extent' with the argument that the defamation policy on prior restraint be adopted, he then said that he resisted the notion that 'the Court must automatically accept that interlocutory injunctions are not to be granted.'[285] He further said that '[m]oreover, the present is not a libel case. It is a case based on the torts of intentional infliction of emotional distress of physical damage, and of invasion of personal privacy,' and although freedom of speech is important, it is 'by no means the decisive element which the news media seeks to demand.'[286] This seems to imply that prior restraint should be applied more frequently in privacy than in defamation. Taylor and Wright interpret McGechan J as promoting the American Cyanmid test of whether there is a serious issue to be tried.[287]

Several commentators prefer the Tucker approach over the requirement that a prima facie case be proved,[288] and hold that it is 'at least arguable that, in relation to threatened breaches of privacy, injunctions should be the primary remedy,'[289] because privacy is automatically thwarted by publication.[290] Evans says that damages cannot return either defamation or privacy plaintiffs to their previous position, and suggests changing defamation so that injunctions are easier to obtain in both areas of the law.[291] It is submitted that Hosking is correct. It would be 'ironical' if it were easier to gain injunctive relief for true statements (under privacy) than for false (under defamation).[292] However, allowing injunctions to be easily obtainable in both areas of the law is not the solution. The policy of prior restraint is based on the importance of expression,[293] and its application in defamation law has been established over many decades. It would be unwise to erase such a long-held protection of freedom of speech. Notwithstanding the inability of damages to restore one's lost privacy, the importance of prior restraint and the extent to which it is enmeshed in the doctrine of defamation means that it is a necessary part of both torts.


Burrows sensibly suggests that privacy damages be lower than in defamation, as publication of false statements is more harmful than of true ones.[294] Beyond this, some commentators have criticised the awarding of damages in privacy cases as being problematic, because of the difficulty in deciding how to value privacy interests.[295] However, this difficulty does not mean that the court is unable to judge the appropriate level of compensation in a particular case,[296] any more than in defamation.[297] It is submitted that the courts should need little guidance on this issue, as they have experience in assessing emotional harm in other fields, such as employment law.

It is clear that there is no need to prove special damage, such as personal injury or financial loss, for a claim to be successful,[298] although it will be recoverable if it occurs.[299] Although damages are available for those who suffer only minor emotional distress, this may not be sufficient harm to grant an injunction. Tobin suggests that more is needed to obtain injunctive relief, such as potential harm to life (as in Tucker) or such a severe effect that the plaintiff is prepared to cease his or her occupation (as in P v D).[300]

Form of Liability

The form of liability required by the privacy tort has not been explicitly determined.[301] Kalven criticised the United States tort on the basis that it was unclear whether it covers only intentional invasions of privacy; whether it also includes negligent invasions; or whether strict liability is enough.[302] In Hosking, Keith J cited Kalven's comments and echoed his concern.[303]

In Australia some form of intention may be required. In Grosse the defendant's act was required to be willed.[304] Similarly, Dean (an Australian writer) suggests that the first element of the tort be 'intentional' public disclosure of private facts.[305] However, these formulations appear to suggest only that the act of publication be intentional; they do not require that the defendant intend to breach the privacy of another or intend to cause offence.

It is useful to look at the defamation approach to intention. Defamation considers the intention with which the words were published to be irrelevant.[306] The main exception to this is the defence of qualified privilege, where the information was communicated on a privileged occasion and the defendant was acting in good faith and without any improper motive. The plaintiff can defeat this defence by proving that the defendant was predominantly motivated by ill will, or otherwise took improper advantage of the occasion of publication.[307]

The lack of discussion on the matter, or inclusion of such a requirement in any New Zealand cases, indicates that the defendant is not required to possess any particular intention for a claim to be successful. It is submitted that this is correct. The focus of the tort is invasion of privacy, and privacy is not invaded to any lesser degree simply because the publisher of the information was not acting malevolently. The defamation rule that intention is irrelevant should be followed; and since there is no defence of qualified privilege, that exception does not apply here. However, the defendant's intention may be relevant when assessing damages.[308]

VI. Conclusion

As can be seen, many uncertain aspects of the privacy tort remain. It will be for the courts to assess these unanswered questions as they arise, on a case-by-case basis. However, this will inevitably require a long timeframe. The courts will seldom have the opportunity to issue high-level decisions, due to the unwillingness of potential plaintiffs to spend large amounts of time and money on an uncertain cause of action, and to their fear that, by going to court, they will receive even more unwanted publicity. While the tort is a desirable development, the uncertainty that will exist while it is clarified over time by the common law is not. A statutory enactment of the tort would clarify its scope and quell concerns that it is an unjustified limitation on freedom of expression.

[*] LLB(Hons), BA, Solicitor, Bell Gully, Wellington.

[1] [2004] NZCA 34; [2005] 1 NZLR 1.

[2] In L v G [2002] DCR 234, 244 it was noted that the correct term is 'tort of breach of privacy,' but the term 'privacy tort' or 'the tort' will be used for simplicity.

[3] Tucker v News Media Ownership Ltd [1986] NZHC 216; [1986] 2 NZLR 716 contains the first indication of the direction of the law. McGechan J stated [at 733] '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'. Gallen J agreed, saying in Bradley v Wingnut Films Ltd [1993] 1 NZLR 415, 423, '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.' P v D [2000] 2 NZLR 591 continued the development of the tort, with Nicholson J stating [at 599], 'I join with Gallen J [regarding his decision in Bradley] in accepting that the tort of breach of privacy forms part of the law of NZ.' This was confirmed in the District Court in L v G [2002] DCR 234, where Abbott DCJ said [at 241] that '[i]t is apparent that New Zealand law now recognizes that breach of privacy is an actionable tort.'

[4] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [117] (Gault P, Blanchard J), [249]-[246] (Tipping J).

[5] The elements of the tort and defences to it are discussed further below.

[6] [1969] RPC 41, 47 and cited by Gault P in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [26].

[7] Douglas v Hello! Ltd (No 5) [2003] EMLR 31, 721. Lord Woolf CJ said in A v B plc [2002] EWCA Civ 337; [2003] QB 195, 206 that it is unlikely that any purpose is served by deciding whether a privacy tort exists, as in the great majority of situations, the doctrine of confidence will provide the necessary protection.

[8] Sedley LJ said in Douglas v Hello! Ltd [2000] EWCA Civ 353; [2001] QB 967, 997 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.' Lord Nicholls said in Campbell v MGN Limited [2004] UKHL 22; [2004] 2 All ER 995, [15] that the value underlying confidence is respect for one aspect of privacy.

Note that, although different terminology is used, the substance of New Zealand's privacy tort is very similar to that of the United Kingdom expanded doctrine of confidence: Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [45] (Gault P), [247] (Tipping J); Katrine Evans, 'Was Privacy the winner on the day?' [2004] NewZealand Law Journal 181,182; John Katz, 'Sex, Lies, Videotapes and Telephone Conversations: The Common Law of Privacy from a New Zealand Perspective' (1995) 17 European Intellectual Property Review 6, 6. Thus, even though the United Kingdom does not expressly recognise a law of privacy, its jurisprudence still provides useful guidance for New Zealand law: Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [248] (Tipping J).

[9] [1937] HCA 45; (1937) 58 CLR 479.

[10] (2001) 208 CLR 199, 249 (Gummow and Hayne JJ), 277 (Kirby J), 323 (Callinan J). See Robert Dean, 'A Right to Privacy?' (2004) 78 Australian Law Journal 114, 117.

[11] See below (for example, Gleeson CJ's definition of a private fact, and discussion of whether companies are protected under the tort).

[12] Greg Taylor & David Wright, 'Australian Broadcasting Corporation v Lenah Game Meats: Privacy, Injunctions and Possums: An Analysis of the High Court's Decision' (2002) 26 Melbourne University Law Review 702, 713. See also the judgment of Gault P in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [56] where he said that ABC 'does little to clarify the future direction of Australian jurisprudence.'

[13] Grosse v Purvis [2003] QDC 151, [442].

[14] Kalaba v Commonwealth of Australia [2004] FCA 763, [6]; Giller v Procopets [2004] VSC 113, [188]. It should also be noted that some states in Australia have some measure of privacy protection through the law of defamation: Katrine Evans, 'Of Privacy and Prostitutes' (2002) 20 New Zealand Universities Law Review 71, 74. By requiring the defendant to prove public interest as part of the defence of truth, the law recognises that the fact that some information is true is not always a strong enough reason to allow publication of that information. This 'looks fairly similar to a privacy tort.'

[15] Refer below for more discussion on this point.

[16] British Columbia, Manitoba and Saskatchewan: Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [65] (Gault P).

[17] Ibid [62].

[18] The other three are unreasonable intrusion upon seclusion of another, appropriation of another's name or likeness, and publicity that unreasonably places another in a false light before the public: Restatement of Torts (Second) (1977) 383-394, §652A.

[19] Ibid §652D.

[20] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [73]-[75] (Gault P).

[21] Ibid [239] (Tipping J).

[22] Ibid [5] (Gault P): John Burrows, 'The News Media and the Law' [2003] CanterLawRw 9; (2003) 9 Canterbury Law Review 229, 238; Tucker v News Media Ownership Ltd [1986] NZHC 216; [1986] 2 NZLR 716, 733; Taylor & Wright, above n 12, 711; Greg Taylor, 'Why is there no Common Law Right of Privacy?' [2000] MonashULawRw 10; (2000) 26 Monash University Law Review 235, 269.

[23] Campbell v MGN [2004] UKHL 22; [2004] 2 All ER 995, [46]. Lord Scott similarly sees no reason for distinguishing between misuse of private information by a confidant and misuse by an eavesdropper, Peeping Tom, or intrusive photographer. See Richard Scott, 'Confidentiality' in Jack Beatson & Yvonne Cripps (eds), Freedom of Expression and Freedom of Information (2000) 267, 269; Taylor & Wright, above n 12, 718 also view United Kingdom developments as 'sensible and logical'.

[24] Thomas Bingham, 'Should there be a law to protect rights of personal privacy?' (1996) 5 European Human Rights Law Review 455, 461 and cited in Hosking v Runting [2003] 3 NZLR 383, 419.

[25] Hosking v Runting [2003] 3 NZLR 383, 419.

[26] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [45]-[49] (Gault P), [245]-[246] (Tipping J), [201] (Keith J); Evans, above n 8, 182; Rosemary Tobin, 'Privacy: one step forward, two steps back!' [2003] New Zealand Law Journal 256, 256; Burrows, above n 22, 236.

[27] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [48] (Gault P), [246] (Tipping J); Evans, above n 8, 181; Tobin, above n 26, 258.

[28] Bridget Murphy, 'Developments in the Law of Invasion of Privacy in New Zealand and England' (2002) 9 Auckland University Law Review 1031, 1040; Jonathan Morgan, 'Privacy, Confidence and Horizontal Effect: "Hello" Trouble' (2003) Cambridge Law Journal 444, 451.

[29] Murphy, above n 28, 1040; Tobin, above n 26, 258.

[30] Morgan, above n 28, 457; Lord Phillips of Worth Matravers, 'Private Life and Public Interest' (2003) 56 Current Legal Problems 153, 167.

[31] Morgan, above n 28, 453.

[32] Peck v United Kingdom [2003] EMLR 15, 304.

[33] Evans, above n 8, 182.

[34] Campbell v MGN [2004] UKHL 22; [2004] 2 ALL ER 995, [14]. See also Lord Phillips, above n 30, 167 where it is said that ‘“[c]onfidential" does not naturally describe an unauthorized photograph.'

[35] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [201] (Keith J).

[36] Ibid [45] (Gault P), [246] (Tipping J); Rabinder Singh & James Strachan, 'The Right to Privacy in English Law' (2002) 2 European Human Rights Law Review 129, 155; Megan Richardson, 'Whither Breach of Confidence: A Right of Privacy for Australia?' [2002] MelbULawRw 20; (2002) 26 Melbourne University Law Review 381, 382; Katz, above n 8, 21; Rabinder Singh & James Strachan, 'Privacy Postponed' (2003) European Human Rights Law Review 12, 17.

[37] Evans, above n 8, 182.

[38] Tobin, above n 26, 256; Burrows, above n 22, 236; Singh & Strachan, above n 36, 141; Jonathan Morgan, 'Privacy Torts: Out with the Old, Out with the New' (2004) 120 Law Quarterly Review 393, 397.

[39] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [49] (Gault P); Timothy Pinto, 'Tiptoeing Along the Catwalk Between Articles 8 and 10: Naomi Campbell v Mirror Group Newspapers Limited' (2004) 15 Entertainment Law Review 199, 201.

[40] Pinto, above n 39, 201.

[41] Murphy, above n 28, 1042.

[42] He stipulates in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [269] that 'should existing protections ... not be adequate to prevent embarrassment, then in my view the principles of s14 NZBORA must prevail.'

[43] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [268] (Anderson J).

[44] Ibid [178] (Keith J).

[45] Burrows, above n 22, 236; Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [270] (Anderson J); Bernard Robertson, 'Freedom of Speech' [2004] New Zealand Law Journal 97, 97.

[46] Burrows, above n 22, 237.

[47] Hosking v Runting 1 NZLR 1, [220] (Keith J). See also Matt Sumpter & Justin Graham, 'IP round-up: Hosking v Runting - New Zealand's new privacy tort' (2004) 3 New Zealand Intellectual Property Law Journal 290, 294.

[48] Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385, 394.

[49] As Lord Bingham said, the conduct which it is desirable to prohibit (that is, conduct infringing privacy and causing substantial distress) is sufficiently clear, so that difficulties of definition can be overcome: 'it would perhaps be strange' if these difficulties posed more than a minor obstacle.

[50] See above.

[51] Tipping J also identifies in Hosking v Runting [2005] 1 NZLR 2, [250] that this process of incrementally developing the law through individual decisions on the definition of reasonableness has worked successfully in the areas of confidence and negligence. It should be noted that Keith J [at [195-205]] also suggests that the courts are ill-equipped to make decisions on privacy, and specialist knowledge and experience is needed. However, it is submitted that this judicial modesty is unnecessary. The process of weighing and balancing competing interests is a task with which the courts are very familiar (Singh & Strachan, above n 36, 154) and they have particular expertise in assessing the weight of freedom of expression in analogous fields of law, such as defamation and censorship.

[52] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [85] (Gault P); Evans, above n 8, 81.

[53] Rosemary Tobin, 'Invasion of Privacy' [2000] New Zealand Law Journal 216, 222; Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [86] (Gault P).

[54] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [115] (Gault P), [247] (Tipping J) and cited in Katz, above n 8, 15.

[55] [2004] NZCA 34; [2005] 1 NZLR 1, [265]-[266]. Sumpter & Graham, above n 47, 291, 295 concur with this reasoning.

[56] Refer below for a fuller discussion.

[57] Thomas J said in R v Jeffries [1994] 1 NZLR 290, 319 that s 21 is essentially 'concerned to protect those values or interests which make up the concept of privacy.' Scott Optican agrees with this statement: Paul Rishworth, Grant Huscroft, Scott Optician, & Richard Mahoney (eds), The New Zealand Bill of Rights (2003) 420. See also R v A [1994] 1 NZLR 429, 433 where it is said that '[r]estraints on search and seizure reflect an amalgam of values: property, personal freedom, privacy and dignity' and cited in Tobin, above n 53, 216 (emphasis added).

[58] [2004] NZCA 34; [2005] 1 NZLR 1, [224]-[226] (Tipping J).

[59] R v Dyment [1988] 2 SCR 417 and cited by Gault P in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [60]. However, note that this right applies only in relation to government acts, not to actions of private citizens: R v Duarte [1990] 1 SCR 30; R v Wong [1990] 3 SCR 36 and cited by Gault P in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [61].

[60] Katz v United States, [1967] USSC 262; 389 US 347 (1967) and cited by Keith J in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [225] and in Rishworth et al, above n 57, 420.

[61] Richardson J said in R v Jeffries [1994] 1 NZLR 290, 302 that 'neither the Bill of Rights nor the International Covenant gives a general guarantee of privacy.' In Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385, 396 it is said that the Bill of Rights does not establish a general privacy law. Both of these cases are cited in Hosking v Runting [2003] NZHC 416; [2003] 3 NZLR 385, 412 and in Hosking [2004] NZCA 34; [2005] 1 NZLR 1, [77] (Gault P). See also William Akel, 'The Rush to Privacy' [2000] New Zealand Law Journal 263, 266.

[62] White Paper on a Bill of Rights for New Zealand (1985) [10.144] and cited by Keith J in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [181].

[63] Furthermore, while New Zealand placed reservations on certain other articles of the Covenant, there are no reservations on Article 17.

[64] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [226] (Tipping J); Katz, above n 8, 21.

[65] [2004] NZCA 34; [2005] 1 NZLR 1, [114].

[66] Rogers and Tomlinson hold that the United Kingdom approach is 'radically different' from where one of the rights in question is not specifically protected: Heather Rogers & Hugh Tomlinson, 'Privacy and Expression: Convention Rights and Interim Injunctions' (2003) European Human Rights Law Review 37, 41. The decision in Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385, 396 agrees with this and emphasises the Bill of Right's lack of express privacy protection.

[67] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [93] (Gault P), [181] (Keith J).

[68] Refer below.

[69] [2004] NZCA 34; [2005] 1 NZLR 1, [125].

[70] [1994] NZFLR 433, 439. The case concerned giving information on adoptive parents to the child's natural mother and is cited in John Burrows & Ursula Cheer, Media Law in New Zealand (1999) 175.

[71] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [70] (Gault P).

[72] In Ms P 21/94, it was mentioned that disclosure to one person may breach the privacy principles. This is cited in Burrows & Cheer, above n 70, 179. Note that the BSA has not fully discussed the matter.

[73] Burrows & Cheer, above n 70, 175.

[74] Such disclosures would be actionable under the Privacy Act 1993, since they would not be barred under s 2(b)(xiii), which provides that the Act does not apply to the news activities of any news medium.

[75] Refer below.

[76] [2004] NZCA 34; [2005] 1 NZLR 1, [117] (Gault P) (emphasis added). See also Tipping J's formulation: that is, it is actionable to publish information with respect to which the plaintiff has a reasonable expectation of privacy: Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [259] (emphasis added). Note that as a result, Murphy's suggestion that the order of the original elements be reversed, so that it becomes private facts/public disclosure/highly offensive disclosure, is no longer relevant: Murphy, above n 28, 1033.

[77] Refer above.

[78] John Burrows & Bill Wilson, Media Law (2003) 42.

[79] For example, BSA 2001-104, cited in Burrows & Wilson, above n 78, 42.

[80] Bradley v Wingnut Films Ltd [1993] 1 NZLR 415, 425.

[81] LvG [2002] DCR 234, 246.

[82] Ibid.

[83] (1985) 2 NSWLR 704, 708 and cited in Burrows & Cheer, above n 70, 176.

[84] Ibid 247.

[85] Evans, above n 14, 82.

[86] Ibid 77.

[87] Lv G [2002] DCR 234, 247.

[88] ' [T]he extent of the anguish and distress which may result from disclosure of personal information is likely to bear some relationship to the extent to which the person in question apprehends that he or she may be identified by the disclosure of that information:' LvG [2002] DCR 234, 247.

[89] [2004] NZCA 34; [2005] 1 NZLR 1, [117] (Gault P), [249] (Tipping J).

[90] See, for example, Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [119] (Gault P).

[91] Ibid [117].

[92] Gleeson CJ in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 226. This was adopted by Gault P in Hosking v Runting [2005] 1NZLR1, [119] and in A v B plc [2002] EWCA Civ 337; [2003] QB 195,206; Campbell v MGN [2004] 2 All ER 955, [93] (Lord Hope), [136] (Baroness Hale); Douglas v Hello! Ltd (No 5) [2003] EMLR 31, 708.

[93] The finding in Theakston v MGN Ltd [2002] EWHC 137 (QB), that a brothel visit was unlikely to be confidential because it was likely that other customers and prostitutes had seen, is contrary to the usual United Kingdom position: Gavin Phillipson, 'Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act' (2003) 66 Modern Law Review 726, 737.

[94] Ibid.

[95] Ibid 738.

[96] Burrows & Cheer, above n 70, 175.

[97] TV3 v Broadcasting Standards Authority [1995] 2 NZLR 720, 731.

[98] Burrows & Cheer, above n 70, 181.

[99] Ibid 181. It has also been held that lapse of time, as well as affecting whether the fact is public or private, also lessens the extent of legitimate public interest in the information: TV3 v Broadcasting Standards Authority [1995] 2 NZLR 720 and cited by Burrows & Cheer, above n 70, 185.

[100] Phillipson, above n 93, 738.

[101] Randerson J said in Hosking v Runting [2003] NZHC 416; [2003] 3 NZLR 385, 415 that '[i]t is not in dispute that the photographs contained "information" as to the identity or likeness of the children.' See also Douglas v Hello! Ltd (No 5) [2003] EMLR 31, 706: a picture is worth a thousand words.

[102] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [71] (Gault P).

[103] Ibid [164].

[104] Refer above.

[105] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [164] (Gault P). Elsewhere in his judgment, he also referred to the BSA decision of Re McAllister [1990] NZAR 324, [86] which held that such photographs are essentially no different from a written description of the public site.

[106] Les Editions Vice-Versa Inc vAubry and Canadian Broadcasting Corporation (1998) 157 DLR (4th) 577 and cited by Gault P in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [62]-[63].

[107] Hosking v Runting [2003] NZHC 416; [2003] 3 NZLR 385, 415. Note that he said the distinction was only one of degree, and was not determinative in the case at hand.

[108] He also impliedly advocated a contextual analysis, where the nature of the photograph, the manner in which it was obtained, and the way in which it was later published are all considered, and held that there is 'no automatic assumption that the media have carte blanche:' ibid 416.

[109] Bradley v Wingnut Films Ltd [1993] 1 NZLR 415, 425.

[110] TV3 v Broadcasting Standards Authority [1995] 2 NZLR 720, 731 and cited in Burrows & Cheer, above n 70, 180. Note that this comment was made in the context of a BSA decision.

[111] Campbell v MGN [2004] UKHL 22; [2004] 2 All ER 995, [75] (Lord Hoffman).

[112] Ibid [122] (Lord Hope).

[113] Ibid [121].

[114] (1985) 2 NSWLR 708 and cited in Burrows & Cheer, above n 70, 176.

[115] Morgan, above n 28, 446.

[116] Theakston v MGN [2002] EWHC 137, [60] and cited in A v B plc [2002] EWCA Civ 337; [2003] QB 195, 216.

[117] Singh & Strachan, above n 36, 159.

[118] Phillipson, above n 93, 747.

[119] Refer below for a fuller discussion.

[120] A v B plc [1995] QB 195, 216.

[121] N Barber, 'A Right to Privacy' [2003] Public Law 602, 607.

[122] See also Phillipson, above n 93, 748.

[123] Note that in L v G [2002] DCR 234 the prostitute was suing for privacy, whereas in Theakston v MGN Ltd [2002] EWHC 137 the customer sued.

[124] Evans, above n 14, 98.

[125] Ibid 90.

[126] William Prosser, 'Privacy' (1960) California Law Review 390. It should be noted that Gault P said in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [165] that the circumstances of photography were not intrusive, since the plaintiff was not aware the photographs had been taken. It is submitted that this definition of 'intrusive', that the victim must be aware of the intrusion, is grossly inaccurate. Its logical extension is that clearly invasive actions like surreptitious filming, placing secret cameras in private dwellings, and tapping telephone lines are not intrusive, since their secret nature means that the victim is unaware of them.

[127] Prosser, above n 126, 391.

[128] Tobin, above n 53, 216; Evans, above n 14, 91.

[129] There is some indication in New Zealand that a separate tort of intentional intrusion is a possible future development. Tobin says that the privacy tort 'arguably also extends to the intentional intrusion into the plaintiff's seclusion or solitude or private affairs': Tobin, above n 53, 222. There is also a passing reference to the tort in Bradley v Wingnut Films Ltd [1993] 1 NZLR 415, 424, which said that intrusion or prying was needed for the tort to apply to information from a public place. However, the law has not developed to the point where this action is definitely available: Evans, above n 14, 90. In Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [118] the question was left open.

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

[131] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [249] (emphasis added).

[132] [1995] 1 WLR 804 and cited in Burrows & Cheer, above n 70, 176.

[133] Peck v United Kingdom [2003] EMLR 15, 304.

[134] AvBplc [2002] EWCA Civ 337; [2003] 1 QB 195, 207 and cited in David Howarth, 'Privacy, Confidentiality and the Cult of Celebrity' (2002) Cambridge Law Journal 264, 266.

[135] Campbell v MGN [2004] UKHL 22; [2004] 2 All ER 995, [123] (Lord Hope).

[136] Ibid [75].

[137] Ibid [154].

[138] Refer to n 114 above.

[139] Callinan J stated in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 305 that 'the nature of the source and the reprehensibility, especially criminal, of the conduct by which information and matter have been obtained' was highly relevant when determining whether publication should be permitted. Gleeson CJ [at 225] regarded the images of private activities 'recorded by the methods employed in the present case' as confidential, indicating that means of acquisition could be considered.

[140] Even if it is not, Neill suggests that 'a lower threshold of liability may be appropriate if the circumstances surrounding the collection or disclosure require censure:' Sir Brian Neill, 'Privacy: A Challenge for the Next Century' in Basil Markesinis (ed), Protecting Privacy - The Clifford Chance Lectures Vol IV (1999) 1, 27.

[141] Evans, above n 8, 182; Raymond Wacks, Privacy and Press Freedom, (1995) 127; Prosser, above 126, 415; Morgan, above n 28, 445. As Sedley LJ said in Douglas v Hello! [2000] EWCA Civ 353; [2001] QB 967, 1006, the circumstances in which information is obtained can rob the right to expression of its substance.

[142] AvBplc [1995] QB 195, 207. This was approved in Douglas v Hello! [2003] EMLR 31, 706.

[143] Murphy, above n 28, 1035.

[144] Wacks, above 141, 137.

[145] Roderick Bagshaw, 'Obstacles on the Path to Privacy Torts' in Peter Birks (ed), Privacy and Loyalty (1997) 133, 140; Morgan, above n 28, 445; Wacks, above n 141, 134; Evans, above n 14, 91-2.

[146] For example, s 216B(1) of the Crimes Act 1961 prohibits interception of a private conversation by an interception device and s 216C(1) prohibits disclosure of information obtained in this way. As well, the New Zealand Law Commission has discussed the issue of 'intimate covert filming', where an unauthorised visual record is made in situations involving nudity or intimacy. This may soon be prohibited by legislation. See New Zealand Law Commission, Intimate Covert Filming, Study Paper 15 (2004).

[147] Douglas v Hello! [2000] EWCA Civ 353; [2001] QB 967, 1012-1013 (Keene LJ).

[148] Ibid 1006 (Sedley LJ).

[149] Ibid 1006.

[150] Pinto, above n 39, 201 states that this is in fact the case now.

[151] Under this action, people can control unauthorised use of their name, voice or likeness: David Anderson, 'The Failure of American Privacy Law' in Basil Markesinis (ed), Protecting Privacy - The Clifford Chance Lectures Vol IV (1999) 139, 146.

[152] Douglas v Hello! [2003] EMLR 31, 711.

[153] Burrows & Wilson, above n 78, 46; Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [200] (Keith J); Rupert Butler, 'One rule for the rich ..." (2004) 148 Solicitors' Journal 104, 105.

[154] Burrows & Wilson, above n 78, 46.

[155] Morgan, above n 28, 450.

[156] Douglas v Hello! [2000] EWCA Civ 353; [2001] QB 967, 1013 (Keene LJ), 1006 (Sedley LJ). Note however that Sedley LJ [at 1006] did not rule out an injunction as it would depend on the circumstances.

[157] Burrows & Wilson, above n 78, 45.

[158] ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 256.

[159] Ibid 226 (Gleeson J).

[160] Ibid 279 (Kirby J).

[161] Prosser, above n 126, 408. Note that the United Kingdom recognises the possibility that a corporation may invoke privacy, but that turns on the wording of the Broadcasting Act 1996 (UK): ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 325 (Callinan J).

[162] In Germany, the privacy claims of corporations are considered on their merits. Taylor & Wright, above n 12, 722-723 state that although they do not have quite the same degree of privacy rights as natural persons, they can have some rights recognised through being an 'economic enterprise of social value.'

[163] Taylor & Wright, above n 12, 720.

[164] Ibid 721.

[165] Ibid.

[166] For example, ss 248-254 of the Crimes Act 1961 govern unauthorised access to and use of computers.

[167] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [117] (GaultP).

[168] Ibid [126].

[169] Privacy Principle (i) says that the private facts must be 'highly offensive and objectionable to a reasonable person of ordinary sensibilities' but note that under Privacy Principle (ii) 'the public disclosure of public facts' also has to be offensive (emphasis added).

[170] Tucker v News Media Ownership Ltd [1986] NZHC 216; [1986] 2 NZLR 716.

[171] Prosser, above n 126, 397.

[172] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [165] (GaultP); P v D [2000] 2 NZLR 591, 601; Campbell v MGN [2004] UKHL 22; [2004] 2 All ER 995, [100] (Lord Hope), [136] (Baroness Hale).

[173] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [126] (Gault P).

[174] P v D [2000] 2 NZLR 591, 601.

[175] Ibid. See also Tobin, above n 53, 222.

[176] Bradley v Wingnut Films Ltd [1993] 1 NZLR 415, 424; PvD [2000] 2 NZLR 591, 601; L v G [2000] DCR 234, 245.

[177] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [256] (Tipping J).

[178] Ibid [255]-[256].

[179] Ibid [256].

[180] Burrows & Cheer, above n 70, 177.

[181] N Moreham, 'Recognising Privacy in England and New Zealand' (2004) Cambridge Law Journal 555, 556.

[182] Burrows & Cheer, above n 70, 177.

[183] Moreham, above n 181, 556.

[184] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [256].

[185] Burrows & Wilson, above n 78, 41 affirm that it is 'not profitable' to dissect this requirement, as the definition of the tort must be read as a whole. Cheer agrees that it is 'unclear in some cases what the third element adds to the definition of privacy': Burrows & Cheer, above n 70, 176. Evans also says that it is unclear why both these elements are required, since the concepts mean essentially the same thing, and are adequately summed up in the second element: Evans, above n 8, 184.

[186] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [256]. Indeed, he acts as if that is currently the law when he says at [259] that '[w]hether the plaintiff has a reasonable expectation of privacy depends largely on whether publication of the information... would in the particular circumstances cause substantial offence to a reasonable person.'

[187] Hosking v Runting [2003] NZHC 416; [2003] 3 NZLR 385, 420 where he said that, instead of being a separate requirement, the offensiveness test should be used to help identify what may properly be regarded as private information.

[188] ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 226.

[189] Patrick Milmo, 'Courting the Media' (2003) European Human Rights Law Review 1, 5. Refer to n 92 above for cases citing ABC.

[190] Douglas v Hello! [2003] EMLR 31, 709.

[191] Campbell v MGN [2004] UKHL 22; [2004] 2 All ER 995, [22] (Lord Nicholls).

[192] Ibid [94] (Lord Hope), [136] (Baroness Hale), [166] (Lord Carswell).

[193] Refer elsewhere in this paper for further discussion of these areas.

[194] Form can be important in a different context. As is discussed below, it is relevant whether information is disclosed in photographic form rather than as a written description, as the disclosure is made more vivid.

[195] Campbell v MGN [2004] UKHL 22; [2004] 2 All ER 995, [112] (Lord Hope).

[196] Ibid [62] (Lord Hoffman).

[197] Ibid [143].

[198] Burrows & Wilson, above n 78, 45.

[199] illipson, above n 93, 753.

[200] Milmo, above n 189, 6.

[201] Campbell v MGN [2004] UKHL 22; [2004] 2 All ER 995, [72] (Lord Hoffman).

[202] Phillipson, above n 93, 733.

[203] Burrows & Wilson, above n 78, 44.

[204] It should be noted that the New Zealand media are not as intrusive or irresponsible as those of other jurisdictions, particularly the United Kingdom: Sumpter & Graham, above n 47, 294; Burrows, above n 22, 231; Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385, 398. However, Burrows notes that even in New Zealand, 'certain sections of the media are becoming increasingly involved in investigative reporting and are sometimes tempted to publicise facts about people, causing humiliation and distress': John Burrows, 'Invasion of Privacy' in Stephen Todd (ed), The Law of Torts in New Zealand (3rd edn, 2001) 908.

[205] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [132].

[206] AvBplc [2002] EWCA Civ 337; [2003] QB 195, 209.

[207] Singh & Strachan, above n 36, 159. The rationale is that the right to freedom of expression includes the media's freedom to exercise their own judgment in presenting material: Campbell v MGN [2004] UKHL 22; [2004] 2 All ER 995, [108] (Lord Hope).

[208] Prosser, above n 126, 416.

[209] Burrows, above n 22, 237.

[210] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [135] (Gault P). Lord Nicholls alluded to this in Campbell v MGN [2004] UKHL 22; [2004] 2 All ER 995, [6]. When commenting on the tone of the article in question he said, 'sympathetic and supportive with, perhaps, the barest undertone of smugness that Miss Campbell had been caught out.'

[211] [2004] NZCA 34; [2005] 1 NZLR 1, [129] (Gault P).

[212] Ibid [129].

[213] Ibid [133]-[134].

[214] AvBplc [2002] EWCA Civ 337; [2003] QB 195, 208.

[215] Ibid 208. Baroness Hale makes similar comments in Campbell v MGN [2004] UKHL 22; [2004] 2 All ER 995, [143], although not to the same extent. She says that it is necessary for newspapers to sell in order to have newspapers at all: thus, the press should be allowed latitude in intrusions so as to maintain circulation. Similarly, a New Zealand commentator cites the United Kingdom case of R v Central Independent Television plc [1994] 3 All ER 641 (CA), in which it was said that even if a newspaper is irresponsible and motivated by commercial advantage, and causes needless pain, distress or damage, 'a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom.' Thus, 'there is no question of balancing free speech against other interests. It is a trump card which always wins': Akel, above n 61, 263.

[216] Phillipson, above n 93, 64.

[217] Prosser, above n 126, 412.

[218] Phillipson, above n 93, 61.

[219] Ibid 62; Murphy, above n 28, 1040; Howarth, above n 134, 266.

[220] Harry Kalven, 'Privacy in Tort Law: Were Warren and Brandeis Wrong?' (1966) 31 Law and Contemporary Problems 326, 226; Phillipson, above n 93, 64; Prosser, above n 126, 412; Burrows & Wilson, above n 78, 44; Burrows & Cheer, above n 70, 177. Furthermore, Lord Woolf CJ's proposal, that many people not wanting someone to enjoy the right to privacy is a good reason for overriding that right, is directly contrary to the concept of human rights: Phillipson, above n 93, 64.

[221] Campbell v MGN [2002] EWCA Civ 1373; [2003] 2 WLR 80, [40]; Phillipson, above n 93, 63.

[222] As well, his comments are in contrast with earlier English decisions saying that the media cannot claim a greater public interest than ordinary individuals, implying that the press cannot rely on a public interest defence based solely on the desirability of their existence: Katz, above n 6, 20.

[223] Phillipson, above n 93, 66.

[224] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [73] (Gault P); Sumpter & Graham, above n 47, 294.

[225] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [234].

[226] Wacks, above n 141, 122.

[227] Milmo, above n 189, 7.

[228] Burrows & Wilson, above n 78, 45. For example, the defence will cover a plaintiff who gives the façade of a 'pillar of rectitude' but who leads a life of double standards: Katz, above n 8, 20.

[229] [2004] UKHL 22; [2004] 2 All ER 995, [24] (Lord Nicholls), [36] (Lord Hoffman), [82] (Lord Hope), [129] (Baroness Hale), [163] (Lord Carswell).

[230] AvBplc [2002] EWCA Civ 337; [2003] QB 195, 208.

[231] Ibid 208. This is also the United States approach, where a 'public figure' defence applies to anyone who places him or herself in the public eye through his or her own voluntary efforts: Prosser, above n 126, 410.

[232] Ibid 208.

[233] Ibid. This was approved in Douglas v Hello! [2003] EMLR 31, 704. Wacks states this differently, saying that the courting of attention may mean that the right to privacy is waived, so that the matter becomes a public (rather than private) one: Wacks, above n 141, 122.

[234] Phillipson, above n 93, 740.

[235] Ibid.

[236] Ibid.

[237] Campbell v MGN [2002] EWCA Civ 1373; [2003] 2 WLR 80, [41]. This was approved in Douglas v Hello! [2003] EMLR 704, 719 where Woodward v Hutchings [1977] 1 WLR 760, a previous United Kingdom case allowing the courting of publicity to invoke the public interest defence, is interpreted as holding only that if one publicises a certain area of one's private life, one might lose protection otherwise available in that area. In Campbell v MGN [2004] UKHL 22; [2004] 2 All ER 995, [57], Lord Hoffman agrees that publicity of some aspects of one's life may be attracted or sought without creating any public interest regarding other matters.

[238] Tucker v News Media Ownership Ltd [1986] NZHC 216; [1986] 2 NZLR 716, 735.

[239] Ibid.

[240] Phillipson, above n 93, 742.

[241] Singh & Strachan, above n 36, 16.

[242] Refer above.

[243] Howarth, above n 134, 267.

[244] Burrows & Wilson, above n 78, 45.

[245] As suggested by Phillipson, above n 93, 740.

[246] Note that his conclusion is that the matter then enters the public domain and stops being a private matter. He does not conclude that a consent analysis should be used: Wacks, above n 141, 122. Phillipson, above n 93, 742 similarly allows that, in extreme situations where the plaintiff voluntarily, thoroughly and repeatedly places personal details in the public domain, the information in question may no longer be truly private.

[247] Hosking v Runting [2003] NZHC 416; [2003] 3 NZLR 385, 416. This was adopted by Gault P at [2004] NZCA 34; [2005] 1 NZLR 1, [121].

[248] Hosking [2003] NZHC 416; [2003] 3 NZLR 385, 416 and see the judgment of Gault P in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [120].

[249] Pinto, above n 39, 202.

[250] This is similar to saying that those who live in unsavoury neighbourhoods, and can expect to be robbed, have less right to complain of theft than those who live in more agreeable areas. Moreham, above n 181, 557 makes a similar argument. She says that the reasonable expectation test allows the parameters of the action to be set by the privacy intruders themselves, and prefers a test of whether the plaintiff had a reasonable desire (not expectation) that his or her privacy be respected.

[251] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [123] (Gault P).

[252] Ibid [147].

[253] Hosking v Runting [2003] NZHC 416; [2003] 3 NZLR 385, 417.

[254] Ibid 416. Gault P said it was human nature for the public's interest in public figures to extend to their families: Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [124].

[255] Hosking v Runting [2003] NZHC 416; [2003] 3 NZLR 385, 416; [2004] NZCA 34; [2005] 1 NZLR 1, [124] (Gault P).

[256] Hosking v Runting [2003] NZHC 416; [2003] 3 NZLR 385, 418.

[257] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [145] (Gault P).

[258] Hosking v Runting [2003] NZHC 416; [2003] 3 NZLR 385, 418.

[259] Jaclyn Moriarty, 'Children, Privacy and the Press' (1997) 9 Child and Family Law Quarterly 217.

[260] Michael des Tombe, '"Get that Camera Out of My Face!" A Look at Children, Privacy and the Broadcasting Standards' (2000) 31 Victoria University of Wellington Law Review 577, 593.

[261] Refer above.

[262] He says that the children of celebrities have no choice in their parents' careers: Hosking v Runting [2003] NZHC 416; [2003] 3 NZLR 385, 416. See also Moriarty, above n 259, 221. The same can be said of royal children, and even children famous in their own right largely lack the capacity to be the sole decision-maker regarding their celebrity status.

[263] Evans, above n 8, 182.

[264] Ibid.

[265] Des Tombe, above n 260, 593. Although this suggestion was made in the context of the BSA defence, it could equally be applied to the tort.

[266] Ibid 593. Gault P recognises this in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [147].

[267] Basil Markesinis, 'The Right to be Let Alone versus Freedom of Speech' (1986) Public Law 67, 82.

[268] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [135]. See also [at [258]] where Tipping J says that the right to expression cannot be used only to boost circulation where the information breaches privacy and there is no legitimate public function.

[269] Evans, above n 8, 182.

[270] Phillipson, above n 93, 756.

[271] AvBplc [2002] EWCA Civ 337; [2003] QB 195, 203; Douglas v Hello! [2000] EWCA Civ 353; [2001] QB 967, 1005 (Sedley LJ); aff'd [2003] EMLR 704. See also Campbell v MGN [2004] UKHL 22; [2004] 2 All ER 995, [55] (Lord Hoffman).

[272] Theakston v MGN Ltd [2002] EWHC 137.

[273] A v B plc [2002] EWCA Civ 337; [2003] QB 195, 205.

[274] Phillipson, above n 93, 60.

[275] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [132] (Gault P), [235], [257] (Tipping J).

[276] Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9, 16-17 (CA) establishes that the relevant considerations include:

the objective the Act (or the competing value, such as privacy) is trying to achieve; the importance of that objective;
whether the way the objective is achieved is in proportion with its importance;
whether there is as little interference with expression as possible; and
whether the limitation is justifiable, after considering all facets of the issue, including social, legal, moral, economic, administrative and ethical facets.

Richardson J states in Ministry of Transport v Noort, Police v Curran [1992] NZCA 51; [1992] 3 NZLR 260, 284 that when deciding whether something is demonstrably justified under s5, all economic, social and administrative implications must be considered. The factors to weigh include: the significance in the particular case of the values underlying the Bill of Rights (here: expression);

the importance in the public interest of the intrusion of the particular right protected by the Bill of Rights;

the limits sought to be placed on the application of the Act [or the common law, per Duff v Communicado Ltd [1996] 2 NZLR 89, 101] in the particular case; and the effectiveness of the intrusion in protecting the interests put forward to justify the limits. Duffv Communicado Ltd [at 99] lays down a two-stage test:

the whole doctrine (here: privacy) must be tested against the right to expression, and it must be determined whether it is a reasonable limit on that right; and the right to freedom of expression must be balanced with the competing interest (here: privacy) in the particular case, and it must be determined whether deciding in favour of privacy would be a reasonable limit on expression in those circumstances.

[277] Moonen v Film and Literature Board of Review [2002] NZCA 69; [2002] 2 NZLR 754, 763 said that 'the nature and extent of the reasoning supporting the decision must depend on the nature of the inquiry.'

[278] Tobin, above n 53, 218. See also James Hartley, 'Tort of Breach of Privacy in New Zealand' (2000) 9 Auckland University Law Review 267, 270 where it is said that the Bill of Rights requires a 'hard, in-depth analysis and balancing exercise' that P v D did not undertake.

[279] [1975] UKHL 1; [1975] AC 396. 280Wacks, above n 141, 157.

[281] Auckland Area Health Board v Television New Zealand Ltd [1992] NZCA 243; [1992] 3 NZLR 406 and cited by Gault P in Hosking [2004] NZCA 34; [2005] 1 NZLR 1, [153].

[282] Cream Holdings Ltd v Banerjee [2004] UKHL 44; [2004] 4 All ER 617, 624 held that the United Kingdom test in privacy cases is whether the plaintiff is 'more likely than not' to establish at trial that publication should be allowed, but allows consideration of circumstances where it is plain that injunctions should be granted as a temporary measure. However, this is based on s 12(3) of the Human Rights Act 1998 (UK) which states that there is to be no prior restraint in the United Kingdom unless the plaintiff is 'likely' to establish that publication should be allowed.

[283] [2004] NZCA 34; [2005] 1 NZLR 1, [158] (Gault P), [258] (Tipping J).

[284] Ibid [270] (Anderson J). See also [155] (Gault P).

[285] Tucker v News Media Ownership Ltd [1986] NZHC 216; [1986] 2 NZLR 716, 734.

[286] Ibid.

[287] Taylor & Wright, above n 12, 729.

[288] Ibid.

[289] Taylor, above n 22, 269.

[290] Evans, above n 8, 183.

[291] Ibid.

[292] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [270] (Anderson J). See also Samuel Warren & Louis Brandeis, 'The Right to Privacy' (1890) 4 Harvard Law Review 193, 216; Prosser, above n 126, 421.

[293] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [153] (Gault P).

[294] Burrows & Wilson, above n 78, 47.

[295] Alexander Stewart, 'Damages for Mental Distress Following Breach of Confidence: Preventing or Compensating Tears' [2001] European Intellectual Property Law Review 302, 304; Murphy, above n 28, 1035.

[296] Tucker v News Media Ownership Ltd [1986] NZHC 216; [1986] 2 NZLR 716, 745.

[297] Prosser, above n 126, 409.

[298] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [128] (Gault P); Katz, above n 8, 11.

[299] Prosser, above n 126, 409.

[300] Tobin, above n 53, 222.

[301] Taylor, above n 22, 269.

[302] Kalven, above n 220, 333.

[303] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [211]-[214].

[304] Grosse v Purvis [2003] QDC 151, [444].

[305] Dean, above n 10, 120.

[306] LexisNexis, Laws of New Zealand, Defamation [13].

[307] Ibid [98]-[100]. Note that the issue of intention may also be relevant when assessing damages (see [13]).

[308] In the United States, punitive damages can only be awarded where the defendant did not act innocently: Prosser, above 126, 409.

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