New Zealand Law Commission
|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
New Zealand Law Commission |
|
[Database Search] [Name Search] [Previous] [Next] [Download] [Help]
3.1 TheCOMMISSION has been asked to recommend options for law reform. As a first step we have canvassed the existing law, both statutory and common, to determine how it touches on the issues. A more detailed discussion of the relevant criminal and civil law can be found in appendix 1: Remedies available under current New Zealand law. The main focus of this chapter is on those areas of our law that are of most relevance to the issues, and our consideration of law reform options, namely the Films, Videos, and Publications Classification Act 1993, the Privacy Act 1993 and the emerging tort of privacy.
3.2 The Films, Videos, and Publications Classification Act 1993 is discussed because it was previously the main vehicle for prosecuting instances of intimate covert filming, and there have been calls for the Act to be amended to enable resumption of such prosecutions.[65] The Privacy Act 1993 and the tort of privacy have obvious relevance given the fundamental nature of the invasion of privacy constituted by this conduct.
3.3 Since 1997, most instances of intimate covert filming appear to have been investigated as breaches of the Films, Videos, and Publications Classification Act 1993 relating to the making and distribution of objectionable publications. A number of video recordings submitted or referred to the Office of Film and Literature Classification (Classification Office) under that Act for classification were found to fall within the scope of the definition of “objectionable” and prosecutions were successfully undertaken.[66]
3.4 However, the Court of Appeal’s decision in Living Word (a case that will be discussed shortly, but which did not concern covert filming) made it clear that to be classified as objectionable, a publication had to first pass the subject matter gateway in section 3(1) of the Act. That gateway limited the reach of censorship laws to publications dealing with sex, horror, crime, cruelty, or violence, or other similar matters, and that were likely to be injurious to the public good.
3.5 Two sections of the Act contain the offence provisions of most relevance to intimate covert filming:
• section 123 – offences of strict liability relating to objectionable publications;
and
• section 124 – offences involving knowledge in relation to objectionable
publications.
3.6 These offences are concerned with making, and with supplying, distributing, exhibiting, displaying, or otherwise making available “objectionable” publications. They are punishable by either a fine for a strict liability offence, or imprisonment for up to one year or a fine up to $20 000 where the offender knew, or had reasonable cause to believe the publication was objectionable. “Supplying” or “making available” extends to the electronic transmission of the contents of the publication otherwise than by broadcasting. Following conviction for offences relating to objectionable publications, the Court may order destruction and forfeiture of the publications and associated equipment.[67]
3.7 The Act defines “publication” widely to include things that store information that is capable of being reproduced by the use of a computer or electronic device. A publication is “objectionable” if, in terms of section 3(1) of the Act, “it depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good”. A publication that promotes or supports the exploitation of children or young persons for sexual purposes is deemed to be objectionable under section 3(2) of the Act.
3.8 In Overend v Department of Internal Affairs,[68] the appellant had been prosecuted under the Act for knowingly making objectionable publications and making available (over the internet) objectionable publications in expectation of gain. The appellant’s activities included using a small camera mounted in the toe of his shoe that he directed up women’s skirts. He also surreptitiously planted small cameras in bathrooms and other such places. He made the results of his activities available to others over the internet. His appeal to the High Court against a total sentence of 21 months imprisonment was unsuccessful, though fines imposed on lesser charges were quashed.
3.9 In several other cases, the Classification Office classified video recordings that surreptitiously filmed subjects who were completely unaware of the recording. Some nudity was involved in each recording. Those recordings included:
• images from a hidden stationary camera of a dressing area used by a number of women dancers whilst they were getting changed for a performance;[69]
• images from a stationary camera secreted in a bedroom wall and containingn footage of young girls getting changed;[70]
• footage that appeared to have been shot using a hand-held camera from behind a one-way window of boys changing for swimming.[71]
3.10 In the first case, the Classification Office concluded that the recording had breached the women’s privacy, and that there was a strong inference the video recording had a “prurient purpose”. The Office concluded that the availability of the publication was likely to be injurious to the public good because of the degree to which the publication degraded the women for what appeared to be a prurient purpose and classified the recording as objectionable.
3.11 The circumstances of the filming and the content of the other two recordings led the Classification Office to draw the inference that they were intended for adults with a sexual interest in children. The Office concluded that the availability of the publications was likely to be injurious to the public good because of the presentation of child nudity for the apparent intended purpose of sexual arousal. The Office also concluded that these recordings breached the privacy of the children filmed. Both recordings were classified as objectionable.
3.12 In Living Word Distributors v Human Rights Action Group Inc (Wellington)[72] the Court of Appeal was called on to determine the scope of the subject-matter limitations of the definition of “objectionable” in section 3(1) of the Act. In considering the classification of the videos in question, the Film and Literature Board of Review had concluded that the definition of objectionable was inclusive and not limited to publications depicting sex, horror, crime, cruelty or violence. Consideration of other matters was not excluded, though they were qualified by the phrase “injurious to the public good”. However, in defining the reach of censorship law, the Court of Appeal held that the words used in section 3(1) of the Act, “limit the qualifying publications to those that can fairly be described as dealing with matters of the kinds listed”, namely sex, horror, crime, cruelty or violence.[73]
3.13 Thus, the earlier approach of the Classification Office to the classification of videos produced as a result of intimate covert filming was no longer appropriate to the extent it had placed weight on other considerations.
3.14 The Living Word decision was subsequently applied in the classification of an untitled video recording referred to the Classification Office by the Manukau District Court in February 2003. The video included a segment recorded in the changing rooms of a swimming pool of boys changing in and out of their clothing, though it did not present child nudity. The Classification Office concluded that, while the filming of the children without their consent, and in a deliberately covert manner appeared to be a breach of their privacy, the publication could not be said to deal with matters of sex in terms of the definition of “objectionable”.[74]
3.15 In March 2003, Parliament’s Government Administration Committee presented a report on its review of the operation of the Films, Videos, and Publications Classification Act 1993. The report considered the scope of the subject matter gateway and the impact of the decision in the Living Word case. On the topic of covert filming, the Committee expressed its concern that the Living Word decision restricted the powers of the Chief Censor to classify such material as objectionable because it was not generally of sexual activity and thus within the reach of the section 3(1) gateway. The Committee expressed similar concern with respect to computer image files and photographs of naked children.[75]
3.16 The Government members of the Committee identified two approaches to broaden the meaning of “objectionable” by either removing section 3(1) as a “gateway”, or widening it to reflect better the ultimate criterion of whether a publication was likely to be injurious to the public good. Other committee members favoured a more limited amendment to the section to include reference to offensive language and nudity.
3.17 This Bill[76] was introduced late in 2003 to deal with changes that had occurred in the decade since the Act was passed, particularly with respect to the proliferation of child pornography via the internet. It contains a number of reforms directed at that type of offending.
3.18 The Bill does not change the section 3(1) gateway to the classification of publications as “objectionable” in any of the ways suggested by members of the Government Administration Committee. It does, however, make it clear that a publication deals with a matter such as sex within the definition if it contains visual images of children or young persons who are nude or partially nude and the images are reasonably capable of being regarded as sexual in nature. This proposed legislative clarification of the scope of the subject-matter gateway preserves the application of the Films, Videos, and Publications Classification Act 1993 with respect to intimate covert filming that relates to what is generally regarded as child pornography.
3.19 The proposed amendments to the censorship law do not extend to the intimate covert filming of adults, or where the images recorded of children do not include nudity, or partial nudity, and are not reasonably capable of being regarded as sexual in nature.
3.20 While the proposed amendments to the Films, Videos, and Publications Classification Act 1993 that are presently before Parliament confirm the application of that Act to objectionable material that can be described as child pornography, the Commission does not recommend further amendment to deal more generally with intimate covert filming for a number of reasons.
3.21 First, to extend the Act in this way would be to depart from its focus on pornography and upon the nature of images rather than the means by which they were obtained. Secondly, likelihood of “injury to the public good”, the test that is central to the definition of “objectionable”, may not always be easy to apply to material obtained through covert filming, where the harm is often suffered by single individuals. Thirdly, extending the present legislation to deal directly with intimate covert filming would be likely to introduce uncertainty into the scope of censorship laws. Fourthly, of the numerous overseas jurisdictions that have enacted or intend to enact legislation to deal with the problem, none has done so by reference to its censorship law; rather, the response has been tailored to meet the privacy intrusion posed by intimate covert filming.
3.22 This Act is designed to “promote and protect individual privacy”, in particular by establishing principles to govern the collection, use and disclosure of personal information, and to govern access by individuals to their personal information. It also establishes the position of Privacy Commissioner, whose functions include investigating complaints about interferences with individual privacy.[77]
3.23 The Privacy Act 1993 can be used to respond to some of the conduct covered by this reference and in fact has already been so used. The definition of “document” in the Act makes clear that images are included,[78] and among the information privacy principles in the Act, several have particular relevance to intimate covert filming.
3.24 Information Privacy Principle 3 requires that when collecting information directly from an individual, the (collecting) agency is required to take reasonable steps to make the individual aware of matters such as the fact of the information collection, why it is being collected and who will have access to the information. There are exceptions to the need to comply with these conditions, including if the information will not be used in a form in which the individual concerned is identified.[79] Intimate covert filming and distribution are fundamentally at odds with this principle given their surreptitious nature. The fact that such filming often focuses on body parts and may not result in images of an “identifiable” person may, however, mean it falls within the exception.[80]
3.25 Information Privacy Principle 4 requires that the manner of collection of personal information shall not be by “unlawful means”, or a means that in the circumstances of the case is “unfair; or intrude[s] to an unreasonable extent upon the personal affairs of the individual concerned”.[81] Some forms of intimate covert filming are unlawful under existing law, and, even if they are not, by their very nature they will almost always amount to circumstances that “are unfair; or intrude to an unreasonable extent upon the personal affairs of the individual concerned”.
3.26 Also relevant are Information Privacy Principles 9 and 11. Principle 9 requires that an agency not keep information for longer than is required for the purposes for which the information may lawfully be used.[82] This Principle could be relevant in instances of retention. Principle 11 requires that an agency that holds personal information must not disclose it unless the circumstances come within one of the exceptions.[83]
3.27 A complaint of privacy breach under the Act does not simply require a breach of one of the principles (or of a code of practice or the information matching provisions). The breach must also, in the opinion of the Privacy Commissioner or the Human Rights Review Tribunal (the Tribunal), have caused or possibly cause “loss, detriment, damage, or injury to the individual”; or have adverse affects on the individual’s rights and entitlements; or, most significantly for intimate covert filming, have resulted in or possibly result in “significant humiliation, significant loss of dignity, or significant injury to the feelings of that individual”.[84]
3.28 The Act provides a State-funded means for people to seek redress for breaches of their privacy, including remedies through the Tribunal.[85] In the first instance, complainants do not have to go through the normal civil court process and so do not have to instruct a lawyer, although if they wish to, they may do so. The Privacy Commissioner does have a discretion to decline to take action or further action in certain circumstances further to section 71, and, if this is exercised, the complainant will have to proceed on his or her own. If the Privacy Commissioner investigates and finds a breach, attempts are made to conciliate. This may include getting assurances that the conduct will not be repeated, and a financial settlement. If a settlement cannot be secured, the Privacy Commissioner may refer the matter to the Director of Human Rights Proceedings to determine whether proceedings should be taken in the Human Rights Review Tribunal.[86] The aggrieved person may bring their own proceedings if the Privacy Commissioner and/or the Director of Human Rights Proceedings decline to do so, or if the Director of Human Rights Proceedings agrees that they may.[87]
3.29 The complaints settlement process is a private one, although if the matter goes to the Human Rights Review Tribunal, the proceedings and reports are normally public, unless the Tribunal decides it is desirable to do otherwise.[88] Remedies available at the Tribunal include a declaration, a restraining order, award of damages, an order requiring performance of any specified acts of a remedial or redress nature, or “[s]uch other relief as the Tribunal thinks fit”. The Tribunal may award costs.[89] Damages may be awarded under various headings, including pecuniary loss, expenses, humiliation, loss of dignity, and injury to feelings.[90]
3.30 The exemptions for “personal information relating to domestic affairs” of section 56 are a significant constraint on the use of the Privacy Act to deal with intimate covert filming. This states that:
Nothing in the information privacy principles applies in respect of—
(a) The collection of personal information by an agency that is an individual; or
(b) Personal information that is held by an agency that is an individual,— where that personal information is collected or held by that individual solely or
principally for the purposes of, or in connection with, that individual’s personal, family or household affairs.
3.31 On its face, subsection (a) appears to provide an exemption for an individual who covertly films another for his or her own gratification. Similarly, subsection
(b) would seem to exempt an individual if retaining covertly filmed images forhis or her own use.
3.32 A complaint was made to the Privacy Commissioner about the covert filming of a Christchurch theatre group in their dressing room.[91] The respondent had access to the dressing room through his employment as a technician, but his filming was not held to be collecting information for a lawful purpose connected with his role as a contractor. His activity was found to be in breach of Information Privacy Principle 1.[92] The Privacy Commissioner attempted a settlement. The respondent was prepared to make a modest financial settlement and this was accepted by all but one of the women. The Privacy Commissioner used his powers under section 74 (settlement of complaints) to seek an assurance that there would be no repetition of the conduct. Such an assurance was given, albeit in the knowledge that if it was contravened the Commissioner would refer the matter on to the Director of Human Rights Proceedings to decide whether or not to take the matter to the Human Rights Review Tribunal. In the event, the matter was separately referred to the Office of Film and Literature Classification. The recording was declared objectionable, and this classification was confirmed by the Film and Literature Board of Review.[93]
3.33 As this example shows, the Privacy Act 1993 can provide an avenue to address some instances of intimate covert filming and distribution. There will, however, often be instances where images are discovered but there is no “identifiable individual” to seek redress.[94] In addition, the domestic exemptions of section 56 may apply in instances where the film was made or held for “personal” use.
3.34 New Zealand common law now provides a remedy in tort for interference with privacy.[95] This is the result of the Court of Appeal decision in Hosking v Runting [96],
released in March 2004. Several prior decisions appeared to indicate a new tort
of breach of privacy was emerging and these indications were confirmed in this
case. The two fundamental requirements for a successful claim are set out at
paragraph 117 in the judgment of Gault P:
1 The existence of facts in respect of which there is a reasonable expectation of privacy; and 2 Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.
The Hosking case involved the potential publication of a photograph of the
appellants’ children. It had been taken in a public place, without the knowledge
of the children or their celebrity parents. While the behaviour at issue did not
reach the threshold to constitute an interference with privacy it may well do in
cases of intimate covert filming. In the course of their judgment, Gault P and
Blanchard J noted at paragraph 109 that the courts had responded to gaps in
the law with respect to the hurt or harm caused by wide publicity of intimate,
private information:
The intrusiveness of the long-range lens and listening devices and the willingness to pay for and publish the salacious are factors in modern society of which the law must take account. The provision of civil remedies in appropriate circumstances represents the response. That is something the courts are equipped to do. It is the very process of the common law.
3.35 Though the tort is in an early stage of development with no precedents in the area of intimate covert filming it appears that, even in its present form, it could provide a civil remedy for a breach of privacy occasioned by the distribution or pending distribution of covertly filmed intimate images, though not where filming occurred for personal use without publication.
3.36 Accessing the courts to claim a remedy for breach of privacy when one has been covertly filmed in an intimate situation, is not, however, a simple process. It generally requires the film’s subject to retain a lawyer, pay court filing fees, which may be significant, and enter upon an adversarial process, which may be lengthy and not user-friendly. Legal aid may alleviate some difficulties, by being available to those whose incomes are low enough to qualify, with its costs being paid back out of any award. Also, the ranges of likely award in successful claims are unknown and may not justify incurring the cost of proceedings.
3.37 The tort avenue also provides a means for obtaining an interim injunction, whereas this is not available under the Privacy Act 1993. Although the threshold for an interim injunction has been set very high, namely “compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information”,[97] and the Court of Appeal in Hosking envisaged that it would not be available in most cases, intimate covert filming may well be the very type of case that crosses the threshold.
3.38 Under existing legislation, there is no provision that specifically prohibits the taking of a photograph or other visual record of a person who is nude, partially nude, or engaging in sexual or other intimate activity, or that prohibits the distribution of such images.
3.39 The criminal law does provide some potential avenues for prosecution but this is very much dependent on the individual circumstances of the filming meeting the terms of the specific offence. Even the classic “peeping Tom” offence of peeping or peering into a dwellinghouse 98 is of limited application because it can be committed only at night time, and, of course, those who engage in intimate covert filming need not actually be present and looking. They may simply set up a camera and depart.
3.40 The only possible relevant offences under the Crimes Act 1961 are sections 125 and 126, the indecency offences, although it is debatable whether the act of surreptitiously recording another person in intimate circumstances will necessarily be an “indecent” act for the purposes of these provisions.
3.41 The criminal provisions of section 8 of the Harassment Act 1997 would only apply if the circumstances of the secret filming came within the Act’s definition
of “specified act”,[99] and if there was a pattern of behaviour involving the same
victim.
3.42 The sexual harassment provisions of the Human Rights Act 1993 and the Employment Relations Act 2000 could be used against some instances of intimate covert filming and distribution.[100] The circumstances would need to be such that the filming and/or distribution could be held to be “physical behaviour of a sexual nature”, that is “unwelcome or offensive” and either by its nature or through repetition, has a “detrimental effect” on the person’s enjoyment of access to specified areas as defined in the Human Rights Act section 62(3), or in the context of the Employment Relations Act, a “detrimental effect” on the employee’s employment, job performance, or job satisfaction.[101]
3.43 The civil harassment provisions in Part 3 of the Harassment Act 1997 may be applicable where there is a pattern of behaviour in terms of that Act and the circumstances were such that a restraining order would provide a remedy.
3.44 The Broadcasting Standards Authority (BSA) has a jurisdiction under the Broadcasting Act 1989 to “receive and determine complaints” about the content of television or radio programmes,[102] including complaints relating to the broadcasters’ obligations under section 4(1)(c) to maintain standards that are consistent with “the privacy of the individual”. The BSA’s processes and the privacy principles they have developed could be used to deal with intimate covert filming and distribution only if the images were subsequently broadcast on public television and if a complaint was received.
3.45 There are other actions in tort, such as trespass, which may provide relief in some circumstances. The circumstances of the intimate covert filming would have to fit the established elements of the particular tort, and, even then, with the exception of the emergent tort for interference with privacy, the success of any action would be on the basis of the harm to the particular interest covered by the tort, for instance, trespass to property, rather than the harm to privacy interests that is central to intimate covert filming. In these actions the privacy harm would be incidental.
3.46 The Films, Videos, and Publications Classification Act 1993 could be used to deal with covertly filmed images that meet the test of “objectionable” in that Act. This would open the way to prosecutions for making, possessing, and distributing the images, and for the Court to make orders for destruction and forfeiture of the images and associated equipment.
3.47 As clarified in the proposed amendments to that Act, the test of “objectionable” would include any visual images of children or young persons who are nude or partially nude and the images are reasonably capable of being regarded as sexual in nature. Covertly filmed images of children or young people that do not meet the above test would not be held to be “objectionable” and neither would covertly filmed images of adults that showed simple nudity.
3.48 The Privacy Act 1993 can provide an avenue for redress for individuals who become aware they have been filmed, although the “domestic exemptions” of section 56 may apply in instances where the film was made or held for “personal” use.
3.49 Following the Court of Appeal decision in Hosking v Runting, the tort for interference with privacy provides a potential remedy, but only where there is publication of private and personal information and the publicity is highly offensive to a reasonable person.
3.50 Other New Zealand law, both statutory and tort, may provide some avenues of redress for the subjects of intimate covert filming in certain circumstances, but the coverage is patchy and many instances remain outside the reach of the law.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/nzlc/report/SP15/SP15-3.html