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Endnotes

[1] Lance E Rothenberg “Re-Thinking: Peeping Toms, Video Voyeurs, and the Failure of the Criminal Law to Recognize a Reasonable Expectation of Privacy in the Public Space” (2000) 49 American University Law Review 1127, 1152.

[2] See chapter 2, paras 2.34–2.38.

[3] Hosking v Runting and Others (25 March 2004) Court of Appeal CA 101/03 Gault P, Blanchard J, Tipping J.

[4] Government Administration Committee “Inquiry into the Operation of the Films, Videos, and Publications Classification Act 1993 and Related Issues” [2003] AJHR 1.5A 18–24.

[5] Censor’s Decision (24 February 1999) Office of Film and Literature Classification, 9801483 and 9801484.

[6] Censor’s Decision (14 April 1999) Office of Film and Literature Classification, 9900223.

[7] Censor’s Decision (20 July 2000) Office of Film and Literature Classification, 525.

[8] A market trader was convicted under the Public Order Act 1986, section 5 (UK). He had a changing area at the back of his stall where customers could try on swimwear. He had set up a partially concealed video camera in this changing area. A customer and her daughter were in the changing area when the daughter noticed the camera, and they subsequently reported the matter to the police. An appeal against conviction was dismissed because it was held that the trader’s actions were capable of amounting to disorderly and insulting behaviour likely to cause harassment, alarm or distress to his customers and thus contrary to section 5. (Vigon v Director of Public Prosecutions [1997] Queen’s Bench Divisional Court: Kennedy LJ and Smith J).

[9] This reportedly happened in shopping malls in Wisconsin in 1998. See Clay Calvert and Justin Brown “Video Voyeurism, Privacy, and the Internet: Exposing Peeping Toms in Cyberspace” (2000) 18 Cardozo Arts & Ent LJ 469, 491.

[10] This reportedly happened in Pennsylvania in 1999. See Calvert and Brown, above, 533.

[11] Rothenberg, above n 1, 1150.

[12] This reportedly happened in Ohio in 1997. See Calvert and Brown, above n 9, 539.

[13] See R Karl Hanson and Andrew JR Harris “Voyeurism: Assessment and Treatment” in D Richard Laws and William O’Donohue (eds) Sexual Deviance: Theory, Assessment and Treatment (The Guilford Press, New York, 1997) 311–331, and discussion in chapter 2, paras 2.34–2.38.

[14] Law Reform Commission (Ireland) Report on Privacy: Surveillance and the Interception of Communications (LRC 57 Dublin, 1998) 3.

[15] Law Reform Commission (Ireland) above n 14, 3.

[16] See also the Victorian Law Reform Commission Workplace Privacy: Issues Paper (Melbourne, 2002) 19.

[17] Law Reform Commission (Ireland), above n 14, 4.

[18] Law Reform Commission (Ireland), above n 14, 4.

[19] Victorian Law Reform Commission, above n 16, 18, n 44 (Margaret Otlowski: Implications of Genetic Testing for Australian Law and Practice, 2001, 45).

[20] Report of the Committee on Privacy (“Younger Report”) (London: HMSO, Cmnd 5012, 1972) 171.

[21] Law Reform Commission (Ireland), above n 14, 1 and n 1.

[22] Rothenberg, above n 1, 1136–1137.

[23] Hosking v Runting, above n 3, para 164.

[24] Daily Times Democrat v Graham (1964) 162 So 2d (Ala).

[25] Restatement of the Law, Second, Torts 652B comment c (1977) quoted in Elizabeth Paton-Simpson, “Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places” (2000) 50 U Toronto LJ 305, 311.

[26] Bradley v Wingnut Films Ltd [1993] 1 NZLR 415, 424 (HC) Gallen J. This case centred on the appearance of a family tombstone in a “comedy horror” movie. The plaintiff claimed breach of privacy among other causes of action.

[27] Paton-Simpson, above n 25.

[28] Andrew Jay McClurg, “Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places” (1995) 73 North Carolina Law Review 989.

[29] McClurg, above n 28, 1041–1043.

[30] Brad Wong “Voyeurism by Cell Phone Charged: Man Accused of Sliding Camera Under Woman’s Skirt in Market” (10 December 2003) Seattle Post-Intelligencer Seattle <http://seattlepi.nwsource.com/local/151817_cell10.html> (last accessed 24 May 2004).

[31] Wong, above.

[32] Rothenberg, above n 1, 1145.

[33] Rothenberg, above n 1, 1145, n 80 and Maria Pope “Comment: Technology Arms Peeping Toms with a New and Dangerous Arsenal: A Compelling Need for States to Adopt New Legislation” (1999) 17 The John Marshall Journal of Computer and Information Law 1167, 1193–1194, n 194.

[34] Pope, above, 1193–119, n 195, n 196, n 197.

[35] Robert I Simon “Video Voyeurs and the Covert Videotaping of Unsuspecting Victims:Psychological and Legal Consequences” (1997) 42(5) Journal of Forensic Sciences, 884.

[36] Censor’s Decision, above n 6.

[37] Reported in Calvert and Brown, above n 9, 520.

[38] Yuen Sha Sha v Tse Chi Pan [1999] 1 HKC 731, 737.

[39] Calvert and Brown, above n 9, 479.

[40] One-hundred-and-seventh Congress, 2d Session, H R 3726, Video Voyeurism Act of 2002, United States House of Representatives, The Library of Congress, Thomas Legislative Information on the Internet <http://thomas.loc.gov/cgi-bin/query/2?c107:HR.3726:> (last accessed 24 May 2004).

[41] Delaware Code Annotated, Title 11, § 1335 (2003); HRS, Title 37, § 711-1111 (2003); MRS, Title 17-A, § 511 (2003); RS Mo, Title 38, § 565-253 (2003); (New H) R S A, Title LXII, § 644:9 (2003), Pa C S, Title 18, § 7507.1 (2003); Tenn Code Ann, Title 39, §39-13-605 (2003); and Wis Stat, Chapter 941, § 942.08 (2003).

[42] Code Laws of South Carolina Annotated, Title 16, § 16-17-470 (2002); Conn Gen Stat, Title 53a § 53a–189a (2003); and S D Codified Laws, Title 22, § 22-21-1 (2003).

[43] Department of Justice (Canada) Voyeurism as a Criminal Offence: Summary of the Submissions (Ottawa, 2002) available at: <http://www.canada.justice.gc.ca/en/cons/voy/summary-final.html> (last accessed 24 May 2004). See also appendix 2: The law in other jurisdictions, paras A28–A32.

[44] Home Office Setting the Boundaries: Reforming the Law on Sex Offences (London, 2000) available at <http://www.homeoffice.gov.uk/docs/vol1mainpdf> (last accessed 24 May 2004), 122. For further discussion see appendix 2: The law in other jurisdictions, paras A75–A82.

[45] Law Reform Commission (Ireland), above n 14 and Law Reform Commission of Hong Kong, Sub Committee on Privacy, Consultation Paper on Civil Liability for Invasion of Privacy (Hong Kong, 1999) <http://www.info.gov.hk/hkreform/reports/privacy-e.doc> (last accessed 31 March 2004). See also appendix 2: The law in other jurisdictions, paras A83–A102.

[46] Bill C-20, An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act, proposed section 162(1)(c) <http://www.parl.gc.ca/> (last accessed 31 March 2004).

[47] Ohio Revised Code Ann, Title 29, § 2907.08 (Anderson 2003).

[48] The Oxford English Dictionary defines a voyeur as “one whom obtains sexual gratification from looking at others’ sexual actions or organs”.

[49] Louisiana Revised Statutes, Title 14, § 283 (2003); and Sexual Offences Act 2003 (UK) s 67.

[50] See para 2.19.

[51] Voyeurism as a Criminal Offence: A Consultation Paper (Communications Branch, Department of Justice, Ottawa, 2002) <http://www.canada.justice.gc.ca/en/cons/voy> (last accessed 31 March 2004) 3.

[52] Paraphilia is a diagnostic term used to describe a compulsive condition responsive to, and predicated and dependent upon, stimulus that are unusual and personally or socially unacceptable, and that are combined with fantasy to stimulate sexual arousal and fulfilment. Recognised paraphilias other than voyeurism include: exhibitionism, paedophilia, frotteurism (non-consensual sexual touching or rubbing), sexual masochism and sexual sadism. See Joseph Davis “Voyeurism: A Criminal Precursor and Diagnostic Indicator to a Much Larger Sexual Predatory Problem in Our Community” in Ronald M Holmes and Stephen T Holmes (eds) Current Perspectives on Sex Crimes (Sage Publications Inc, Thousand Oakes, California, 2002) 73, 75.

[53] Voyeurism as a Criminal Offence, above n 51, 4.

[54] Davis, above n 52, 79–81.

[55] Voyeurism as a Criminal Offence, above n 51, 4, n 4 referring to Hanson, R Karl and Andrew JR Harris “Voyeurism: Assessment and Treatment” in Sexual Deviance: Theory, Assessment and Treatment (New York, The Guilford Press, 1997) 311, 313.

[56] Voyeurism as a Criminal Offence, above n 51, 4, n 5 referring to Hansen and Harris, 314.

[57] Voyeurism as a Criminal Offence, above n 51, 4, n 6 referring to Hansen and Harris, 314.

[58] Voyeurism as a Criminal Offence, above n 51, 5, n 9 referring to Abel, GG and JL Rouleau “The Nature and Extent of Sexual Assault” in WL Marshall, D and R Laws and HE Barbaree (eds) Handbook of Sexual Assault: Issues, Theories and Treatment of the Offender (Plenum Press, New

York, 1990) 9, 15.

[59] Voyeurism as a Criminal Offence, above n 51, 5, n 12 referring to Hansen and Harris, 317–318.

[60] Setting the Boundaries, above n 44, 121.

[61] Cited in Davis, above n 52, 77.

[62] Stephen Smallbone and Richard Wortley “Child Sexual Abuse in Queensland: Offender Characteristics and Modus Operandi” (Queensland Crime Commission and Queensland Police Service, Brisbane, 2000) 33–35. Smallbone and Wortley comment that the studies by Abel and his colleagues may have artificially inflated the incidence of paraphilia among sex offenders.

[63] Davis, above n 52, 81–82.

[64] In a New Jersey case the Appellate Court found that a husband’s installation of a hidden camera and microphone in his estranged wife’s bedroom constituted stalking but not harassment under the New Jersey offence provisions, H E S v J C S (2002) 793 A 2nd 780 (N J Super App Div).

[65] Government Administration Committee, above n 4; and Martin Kay “Film Censor Wants Gap in Law Fixed” (14 November 2003) Dominion Post Wellington A5.

[66] See paras 3.8–3.11.

[67] Films, Videos, and Publications Classification Act 1993, s 136.

[68] Overend v Department of Internal Affairs (1998) 15 CRNZ 529.

[69] Censor’s Decision, above n 6.

[70] Censor’s Decision, above n 5.

[71] Censor’s Decision, above n 7.

[72] Living Word Distributors v Human Rights Action Group Inc (Wellington) [2000] 3 NZLR 570 (CA).

[73] Living Word, above n 72, para 28, Richardson P for the majority.

[74] Censor’s Decision (27 May 2003) Office of Film and Literature Classification, 300507.

[75] Government Administration Committee, above n 4.

[76] The Bill had its first reading on 2 March 2004 and was referred to the Government Administration Committee for report back by 30 June 2004.

[77] Privacy Act 1993, long title.

[78] Privacy Act 1993, the definition of document in s 2(1)(e) includes “any photograph, film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced”.

[79] Privacy Act 1993, s 6 Principle 3(4)(f)(i).

[80] There is some debate as to whether filming someone amounts to collecting information “directly from the individual concerned”, see Paul Roth, Privacy Law and Practice (Wellington, LexisNexis, 2003) 1006.17. We note, however, that the more relevant principle in terms of intimate covert filming is Information Privacy Principle 4 as discussed below.

[81] Privacy Act 1993, s 6, Principle 4.

[82] Privacy Act 1993, s 6, Principle 9.

[83] Privacy Act 1993, s 6, Principle 11.

[84] Privacy Act 1993, s 66. The position differs for access requests in ways that are not relevant to this discussion, see section 66 (2).

[85] Privacy Act 1993, ss 67–89.

[86] Privacy Act 1993, s 77.

[87] Privacy Act 1993, s 83.

[88] Human Rights Act 1993, s 107.

[89] Privacy Act 1993, s 85.

[90] Privacy Act 1993, s 88.

[91] Case Note 18302 [2001] NZPrivCmr 8.

[92] Information Privacy Principle 1 prohibits agencies from collecting personal information unless it is collected for a lawful purpose connected with the function or activity of the agency and the collection is necessary for that purpose. See Privacy Act 1993, s 6.

[93] Censor’s Decision, above n 6; and Film and Literature Board of Review in the matter of Police Exhibit 7205/79, 6 July 1999.

[94] This need not prevent a complaint being lodged, as section 67 allows “any person” to make a complaint, or the Privacy Commissioner may initiate an investigation as provided in section 69. Depending on the circumstances of the case, under section 71 the Commissioner may dismisscomplaints if the individual alleged to be aggrieved does not desire further action, or if the complainant does not have sufficient personal interest in the subject matter of the complaint.

[95] In the United States a common law tort of infringement of privacy has existed in most jurisdictions for many years, with the generic concept recognised in the Restatement of the Law,Second, Torts (1977), Sections 652A to 652E. The concept of “invasion of privacy” would seem there to be a convenient label for a complex of four separate torts protecting disparate dimensions of the right “to be let alone”.On the other hand, the Court of Appeal in England held in Kaye v Robinson [1991] FSR 62 that there was no right of action for breach of personal privacy and more recently, in Wainwright v Home Office [2003] UKHL 53 the House of Lords declined the invitation to declare the existence of such a tort. It should be noted, however, that those cases were decided against the background of the significant development of the tort of breach of confidence. The appropriateness of recourse to such a remedy, which, in several recent cases, seems to have merged the concepts of privacy and confidence (see, for example, Douglas and Others v Hello! Ltd [2001] 2 All ER 289; Venables v News Group Newspapers Ltd [2001] 1 All ER 908; and A v B (a Company) [2002] 2 All ER 545) was doubted by Lord Phillips MR in Campbell v Mirror Group Newspapers Ltd [2003] 1 All ER 224, 240 who considered the unjustifiable publication of information about an aspect of an individual’s private life to be better described as a breach of privacy rather than a breach of confidence. In Australia, the existence of a tort of invasion of privacy was left open by the High Court of Australia in Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63, with indications in several of the judgments that the long-standing decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 may not necessarily restrict its development in a suitable case. Civil remedies for breach of privacy in Canada have tended to develop in the context of Charter jurisprudence. While a specific common law tort has not emerged, relief has generally been afforded through the Charter cases, together with legislative recognition of privacy rights in some provinces, and, in the case of Quebec, a specific provincial charter provision guaranteeing a right to respect for “private life” (Section 5 Quebec Charter of Human Rights and Freedoms. See Aubry v Les Editions Vice-Versa Inc (1998) 157 DLR (4th)).

[96] Hosking v Runting, above n 3.

[97] Hosking v Runting, above n 3, para 158.

[98] Summary Offences Act 1981, s 30.

[99] The meaning of “specified act”, as set out at section 4 does not specifically include secretly filming someone but, depending on the particular circumstances, this could fall under the headings of “watching” a place the subject frequents; “entering, or interfering with” the subject’s property, for instance where a camera is secretly installed in a house; or “acting in any other way” that “would cause a reasonable person” in the subject’s “particular circumstances to fear for his or her safety”.

[100] Human Rights Act 1993, s 62; Employment Relations Act 2000, s 108.

[101] Employment Relations Act 2000, s 108(1).

[102] Broadcasting Act 1989, s 21.

[103] See chapter 2, paras 2.34–2.38.

[104] See appendix 2: The law in other jurisdictions.

[105] We note that the Law Reform Commission of Hong Kong has proposed statutory torts that would encompass covert filming in intimate situations and distribution of the images. There would be a tort of intrusion and a tort of giving “publicity to a matter concerning the private life of another”. Both the intrusion and the extent and content of the disclosure would need to be of a kind that would be “seriously offensive and objectionable to a reasonable person of ordinary sensibilities”. See Law Reform Commission of Hong Kong, above n 45. See also the discussion in appendix 2: The law in other jurisdictions, paras A83–A95.

[106] New South Wales Law Reform Commission Surveillance (NSWLRC, Sydney 1997); and New South Wales Law Reform Commission Surveillance: An Interim Report (NSWLRC, 98, Sydney 2001). For more detailed discussion see appendix 2: The law in other jurisdictions, A68.

[107] Email message of 27 February 2004 from New South Wales Attorney-General’s Department.

[108] The Law Reform Commission (Ireland), above n 14, 100–113. To date, these recommendations have not been implemented. See also discussion in appendix 2: The law in other jurisdictions, A98–A102.

[109] This Bill was introduced in December 2003, had its first reading in March 2004, and is currently before the Law and Order Committee. PROPOSALS FOR LEGISLATIVE REFORM 27

[110] See chapter 2, paras 2.11–2.15 for further discussion.

[111] Such a legislative provision is rare in overseas jurisdictions, but an example of the first qualification can be found in the relevant Wisconsin law. See Wis Stat, Chapter 941, § 942.09 (2)(c) (2003), which makes it a Class I felony to possess a covertly recorded representation captured or reproduced in violation of the section if the offender knew or had reason to know the representation was captured or reproduced in violation of the section and the subject had not consented to the possession.

[112] In R v Gardiner (1997) 15 CRNZ 131, 136, the Court of Appeal stated that “There is no mechanism in the law requiring or enabling the authorisation of video surveillance”.

[113] R v Fraser (1997) 15 CRNZ 44, 52. This case concerned video surveillance by the police of a property for over three months for the purpose of gathering evidence of drug offences.

[114] R v Fraser, above, 56. See also Kyllo v US 150 L Ed 2d 94 (2001) where the United States Supreme Court concluded that police use of a thermal imaging device to detect cannabis growing in a house was a search, stating that: We think that obtaining by sense-enhancing technology any information regarding the interior of a home that could not otherwise have been obtained without physical ‘intrusion upon a constitutionally protected area’, ... constitutes a search – at least where (as here) the technology in question is not in general public use. Although we note that the same cannot be said for cell-phone cameras, the material point is that there was an intrusion into a private area.

[115] R v Gardiner, above n 112, 136.

[116] R v Gardiner, above n 112, 137.

[117] The police knew the occupants and their visitors were wary of, and taking precautions against, audio surveillance so an audio interception warrant would have been ineffective. R v Gardiner, above n 112, 136.

[118] Section 32 of the Sentencing Act 2002 establishes the circumstances for imposing the sentence of reparation, including when the victim has suffered emotional harm or loss or damage consequential on emotional harm by reason of the offence. If these conditions are met, then section 12 requires the Court to impose reparation, unless satisfied that the sentence would result in undue hardship for the offender or his or her dependants, or that any other special circumstances would make it inappropriate. Section 32 (3) requires the Court to consider the relationship between reparation and any other avenues for legal redress available to the victim in relation to loss or damage, but section 38(2) provides that a sentence of reparation does not affect the victim’s right to recover by civil proceedings any damages in excess of the amount recovered under the sentence.

[119] The key comparative offences are section 216B, which concerns interception of a private communication by means of an interception device and section 216C, which prohibits disclosure of private communications unlawfully intercepted.

[120] Crimes Act 1961 s 144; and Crimes Amendment Bill (No 2) 2003, proposed new section 131(3).

[121] The other proposed offences in the Bill have penalties in the 5, 7, 10, 14 and 20 year range, as is the case with most sexual offences currently in the Crimes Act 1961.

[122] Films, Videos, and Publications Classification Amendment Bill 2003, proposed new section 131A. PROPOSALS FOR LEGISLATIVE REFORM 33

[123] Another relevant provision is section 216E of the Crimes Act 1961, which enables the Court to order forfeiture of interception devices following conviction, for intercepting private communications, or for dealing and so on with interception devices.

[124] Government Administration Committee, above n 4.

[125] See chapter 3, para 3.32.

[126] Privacy Act 1993, s 6, Principle 4.

[127] This was the filming of the theatre group in Christchurch, Case Note, above n 91. PROPOSALS FOR LEGISLATIVE REFORM 35

[128] As discussed in para 3.37, the remedy of interim injunction could be sought under the common law tort of interference with privacy. Although the Court of Appeal has set the threshold very high, namely “compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information”, cases of intimate covert filming may well cross that threshold.

[129] See the discussion of the Canadian jurisprudence on this point as set out by Gault P (Blanchard

J concurring) in Hosking v Runting, above n 3, paras 60–61.

[130] Hosking v Runting, above n 3, para 92, Gault P.

[131] In Living Word, above n 72, para 45 the Court drew attention to the European Court of Human

Rights statement in Handyside v UK (1976) 1 EHRR 737, para 49:

Freedom of expression constitutes one of the essential foundations of a [democratic] society ... Subject to Article 10(2), it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.

[132] Hosking v Runting, above n 3, para 132, Gault P. [133] Also relevant is section 6, which requires that enactments be interpreted consistently with the Bill of Rights Act: “wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any

other meaning”.

[134] See chapter 2, paras 2.35–2.38.

[135] Hosking v Runting, above n 3, paras 109–116, Gault P.

[136] See appendix 1, para A4 and n 138 regarding the recent conviction of a man for offensive behaviour in respect of such conduct.

[137] In this context, we note the case of L v G [2002] DCR 234, where the plaintiff successfully sued for damages for breach of privacy following the defendant’s publication, without her consent, of a sexually explicit photograph that had been taken with her consent. PROPOSALS FOR LEGISLATIVE REFORM

[138] Police v R (20 February 2004) District Court Dunedin, Judge O’Driscoll (appeal pending). Relevant circumstances included that the defendant had taken a very large number of photographs of schoolgirls over an extended period of time and on a number of occasions, the defendant offered the Court no explanation for the photography, he took the photographs furtively and gave a number of different false names when having the films developed, and he had mentioned to a witness that he had a friend who put the images on “the net”.

[139] Police v D [1999] DCR 426, 429 Judge Deobhakta.

[140] The meaning of “specified act”, as set out at section 4 of the Harassment Act 1997 does not specifically include secretly filming someone but, depending on the particular circumstances, this could fall under the headings of “watching” a place the subject frequents; “entering, or interfering with” the subject’s property, for instance, where a camera is secretly installed in a house; or “acting in any other way” that “would cause a reasonable person” in the subject’s “particular circumstances to fear for his or her safety”.

[141] See chapter 2, paras 2.31–2.38 for discussion of voyeurism as a sexual behaviour.

[142] In this context, we also note section 38 of the Residential Tenancies Act 1986, which entitles the tenant to “quiet enjoyment” of the premises, and places a duty on the landlord to “not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant” in his or her use of the premises. Section 40(2) of the Residential Tenancies Act 1986 places a duty on tenants to not interfere with the “reasonable peace, comfort, or privacy” of other tenants or neighbours.

[143] Telephone conversation with Mervin Singham, Manager Dispute Resolution, Human Rights Commission, 16 March 2004.

[144] See for instance Proceedings Commissioner v Mundy (22 April 1996) Complaints Review 7/96.

[145] Employment Relations Act 2000, s 108(1).

[146] Employment Relations Act 2000, s 123.

[147] Employment Relations Act 2000, s 112.

[148] See para A6 and above n 140

[149] Broadcasting Act 1989, s 21.

[150] The general process is that complaints must first be directed to the broadcaster, and the complainant can only come to the BSA for investigation and review if dissatisfied with the response from the broadcaster. For breaches of standards other than privacy, the remedies are directions to the broadcaster to publish a statement and an order for the broadcaster to pay costs of up to $5000 to the Crown. These remedies are available for privacy breaches in addition to the compensation order. The BSA can also direct the broadcaster to stop broadcasting or refrain from advertising for up to 24 hours.

[151] Television and Radio Complaints: A Guide for Viewers and Listeners, Broadcasting Standards Authority <http://www.bsa.govt.nz/> (last accessed 18 December 2003).

[152] Michael Stace Privacy: Interpreting the Broadcasting Standards Authority’s Decisions January 1990–June 1998 (Dunmore Press Ltd, Palmerston North, 1998) 73.

[153] See appendix 2: The law in other jurisdictions, paras A60–A62 for discussion of the four privacy torts in the United States of America.

vi) Discussing the matter in the “public interest”, defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

[154] Privacy Principles, Broadcasting Standards Authority <http://www.bsa.govt.nz/privacy.htm> (last accessed 18 December 2003).

[155] TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720,732 (HC) Eichelbaum CJ.

[156] Douglas v Hello! Ltd [2001] 2 All ER 289 (CA).

[157] See P v D [2000] 2 NZLR 591 (HC) Nicholson J. This case concerned threatened publication of information that P (a public figure) had been treated in a psychiatric hospital.

[158] As established in Wilkinson v Downton [1897] 2 QB 57 Wright J.

[159] Wainwright v Home Office [2003] 3 All ER 943 (CA) and [2003] 4 All ER 969 (HL).

[160] Stevenson v Basham [1922] NZLR 225 (SC) Herdman J. This case concerned a man threatening another that he would burn down the house occupied by the second man and his wife.

[161] Bill C-20, above n 46.

[162] Voyeurism as a Criminal Offence, above n 51.

[163] Voyeurism as a Criminal Offence: Summary of the Submissions, above n 43.

[164] Bill C-20: 162, above n 46; and Robin MacKay and Marilyn Pilon Legislative Summary (Parliamentary Research Branch, Library of Parliament, Canada, Ottawa, 2003).

[165] Video Voyeurism Act of 2002, above n 40.

[166] One-hundred-and-seventh Congress, 2d Session, S 2661 IS, Video Voyeurism Act of 2002, United States Senate, The Library of Congress, Thomas Legislative Information on the Internet <http://thomas.loc.gov> (last accessed 31 March 2004).

[167] Alaska Statutes, Title 11, § 11.61.123 (2003); SC Code Ann, Title 16, § 16-17-470 (2002); Utah Code Ann, Title 76, § 76-9-702.7 (2003); Wis Stat, Chapter 941, § 942.08 (2003); (New H) R S A, Title LXII, § 644:9 (2003); MRS, Title 17-A, § 511 (2003); HRS, Title 37, § 711¬1111; Del C, Title 11, § 1335 (2003); OCGA, Title 16, § 16-11-62 (2002); and LaRS, Title 14, § 14:283 (2003).

[168] For “violation or invasion of privacy” offences see R S Mo, Title 38, § 565-253 (2003); M R S, Title 17-A, § 511 (2003); Del C, Title 11, § 1335 (2003); HRS, Title 37, § 711-1111 (2003); (New H) R S A, Title LXII, § 644:9 (2003); Pa C S, Title 18, § 7507.1 (2003); Wis Stat, Chapter 941, § 942.08 (2003); and Tenn Code Ann, Title 39, § 39-13-605 (2003). A notable exception is Ohio, where the offence of voyeurism appears in the “Sexual Offenses” chapter of the Ohio Revised Code, ORC Ann, Title 29, § 2907.08 (Anderson 2003).

[169] See for instance S D Codified Laws, Title 22, § 22-21-1 (2003); Conn Gen Stat, Title 53a § 53a-189a (2003); and S C Code Ann, Title 16, § 16-17-470 (2002).

[170] Rothenberg, above n 1, 1154–1155, 1162–1165.

[171] Calvert and Brown, above, n 9, 524–526.

[172] See for instance Conn Gen Stat, Title 53a, § 53a-189a (2003); Fla Stat, Title 46, § 810.14 (2003); OCGA, Title 16, § 16-11-62 (2002); MRS, Title 17-A, § 511 (2003).

[173] See for instance Del C, Title 11, § 1335 (2003); KSA, Chapter 21, § 21-4001 (2002); and RS Mo, Title 38, § 565.253.

[174] See for instance Del C, Title 11, § 1335 (2003); HRS, Title 37, § 711-1111 (2003); and KSA, chapter 21, § 21-4001 (2002).

[175] Code Laws of South Carolina Annotated, Title 16, § 16-17-470 (2002); LaRS, Title 14, § 14:283 (2003); Conn Gen Stat, Title 53a, § 53a-189a (2003); Tenn Code Ann, Title 39, § 39-13-605 (2003); Cal Pen Code, Title 15, § 647 (k); Pa C S, Title 18, § 7507.1 (2003); ORC Ann, Title 29, § 2907.08 (Anderson 2003).

[176] Connecticut Annotated Statutes, Title 53a, § 53a–189a (2003); Utah Code Ann, Title 76, § 76-9-702.7 (2003); and Cal Pen Code, Title 15, § 647 (k).

[177] Tennessee Code Annotated, Title 39, § 39-13-605 (2003); and Cal Pen Code, Title 15, § 647 (k).

[178] Rothenberg, above n 1, 1130.

[179] Rothenberg, above n 1, 1159, and Calvert and Brown, above n 9, 477–478, 491.

[180] Rothenberg, above n 1, 1145, n 80. See also Calvert and Brown, above n 9, 475–476, n 39–44 and Pope, above n 33, 1193–1194, n 194.

[181] Hawaii Revised Statutes, Title 37, § 711-1111(2003); MRS, Title 17-A, § 511 (2003); R S Mo Title 38, § 565.253 (2003); Cal Pen Code, Title 15, § 647 (k); Del C, Title 11, § 1335 (2003); ORC Ann, Title 29, § 2907.08 (Anderson 2003); LaRS, Title 14, § 14:283 (2003); and Utah Code Ann, Title 76, § 76-9-702.7 (2003).

[182] Hawaii Revised Statutes, Title 37, § 711–1111 (2003).

[183] Maine Revised Statutes, Title 17-A, § 511 (2003).

[184] Missouri Annotated Statutes Title 38, § 565.253 (2003).

[185] Louisiana Revised Statutes, Title 14, § 14:283 (2003).

[186] Utah Code Annotated, Title 76, § 76-9-702.7 (2003).

[187] Calvert and Brown, above n 9, 526–531.

[188] The Ohio voyeurism offences do not appear to cover distribution, nor does the Californian provision. See Cal Pen Code, Title 15, § 647 (k); and ORC Ann, Title 29, § 2907.08 (2002).

[189] Utah Code Annotated, Title 76, § 76-9-702.7 (2003).

[190] Connecticut Annotated Statutes, Title 53a, § 53a-189a and § 53a-189b (2003).

[191] Official Code of Georgia Annotated, Title 16, § 16-11-62 (6) (2002).

[192] Code of Alabama, Title 13A, § 13A-11-35 (2003).

[193] Wisconsin Statutes, chapter 941, § 942.09 (2) (2003).

[194] Wisconsin Statutes, chapter 941, § 942.09 (3) and (4) (2003).

[195] Delaware Code Annotated, Title 11, § 1335 (2003).

[196] Louisiana Revised Statutes, Title 14, § 14:283 (2003).

[197] Louisiana Revised Statutes, Title 14, § 14:283 (2003), and Rothenberg, above n 1, 1162–1165.

[198] Code Laws of South Carolina Annotated, Title 16, § 16-17-470 (2002).

[199] Louisiana Revised Statutes, Title 14, § 14:283 B (2003).

[200] 18 Pennsylvania Consolidated Statutes, Title 18, § 7507.1 (2003); and RS Mo, chapter 565, § 565.253 (2003).

[201] Louisiana Revised Statutes, Title 14, § 14:283 B(4), (2003).

[202] Utah Code Annotated, Title 76, § 76-9-702.7, (2003).

[203] Ohio Revised Code Annotated, Title 29, § 2907.08 (Anderson 2003); and Calvert and Brown, above n 9, 538–539.

[204] Louisiana Revised Statutes, Title 14, § 14:283 B(3), (2003).

[205] Hawaii Revised Statutes, Title 37, § 711-1111 (3), (2003); SC Code Ann, Title 16, § 16-17-470 (F), (2002); La RS, Title 14, § 14:283 D, (2003); Tenn Code Ann, Title 39, § 39-13-605 (2003); and Code of Ala, Title 13A, § 13A-11-37 (2003).

[206] See for instance McClurg, above n 28, 997–999.

[207] See William L Prosser “Privacy” (1960) 48 Cal L Rev, 383, 391–392. Prosser states: On the public street, or in any other public place, the plaintiff has no right to be alone, and it is no intrusion of his privacy to do no more than follow him about. Neither is it such an invasion to take his photograph in such a place, since this amounts to nothing more than making a record, not differing essentially from a full written description, of a public sight which any one present would be free to see.

[208] Prosser, above n 207.

[209] Law Reform Commission (Ireland), above n 14, 87.

[210] McClurg, above n 28, 996–1009. See also Gault P (Blanchard J concurring) in Hosking v Runting,

above n 3, paras 73–75.

[211] Email message, above n 107.

[212] Surveillance Devices Act 1999 (Vic), s 7; Surveillance Devices Act 1998 (WA), s 6.

[213] Surveillance Devices Act 1999 (Vic), s 11; Surveillance Devices Act 1998 (WA), s 9.

[214] Surveillance Devices Act 1999 (Vic), ss 7 and 11; Surveillance Devices Act 1998 (WA), ss 6

and 9.

[215] Surveillance Devices Act 1998 (WA), s 40.

[216] Surveillance Devices Act 1999 (Vic), s 3; Surveillance Devices Act 1998 (WA), s 3.

[217] Surveillance Devices Act 2000 (NT), ss 5, 6, 40 and 48.

[218] New South Wales Law Reform Commission, Surveillance and Surveillance: An Interim Report, above n 106.

[219] Email message, above n 107.

[220] Email message of 1 March 2004 from Sue Coleman, Research and Policy Officer, Victorian Law Reform Commission.

[221] Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63.

[222] Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479.

[223] Sue Lowe “Law Struggles to Deal With Pervy Snappers” (28 February 2004) Sydney Morning Herald Sydney <http://www.smh.com.au/articles/2004/02/27/10776971578.html> (last accessed 24 March 2004).

[224] Younger Report, above n 20, Report of the Committee on Privacy and Related Matters (Calcutt I), (1990) Cmnd 1102; Review of Press Self-Regulation (Calcutt II), (1993) Cmnd 2135; and National Heritage Committee of the House of Commons, Privacy and Media Intrusions (London, 1993).

[225] Younger Report, above n 20, 15.

[226] Younger Report, above n 20, 16.

[227] Setting the Boundaries: Reforming the Law on Sex Offences, above n 44, 120–122.

[228] One instance of such conduct was the case of Vigon, see above n 8.

[229] Setting the Boundaries: Reforming the Law on Sex Offences, above n 44, 119, n 142 and 143, 121.

[230] Setting the Boundaries: Reforming the Law on Sex Offences, above n 44, 123

[231] Home Office Government Response to the Review Report (London, nd) <http://www.homeoffice.

gov.uk/dosc2/sexconres.pdf> (last accessed 5 March 2004).

[232] Government Response, above.

[233] Home Office Protecting the Public: Strengthening Protection Against Sex Offenders and Reforming

the Law on Sexual Offences (London, 2002) 32.

[234] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45.

[235] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45, 62–63.

[236] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45, 73 and n 24.

[237] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45, 74.

[238] Compare, however, the ruling of the Alabama Court in the 1964 case of Daily Times Democrat

v Graham, which explicitly found that the taking and publication in the newspaper of a photograph of a woman, whose skirt was blown up by an air jet as she exited a funhouse was an invasion of privacy, as discussed in Rothenberg, above n 1, 1147–1148 n 92 and n 93.

[239] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45, 77.

[240] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45, 77.

[241] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45, 89–102.

[242] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45, 102.

[243] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45, 102.

[244] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45, 121–124

[245] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45, 122.

[246] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45, 123–124.

[247] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45, 125–126.

[248] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45, 161–162.

[249] Consultation Paper on Civil Liability for Invasion of Privacy, above n 45, 164–165.

[250] Yuen Sha Sha v Tse Chi Pa, above n 38.

[251] Sue Lowe “Law Struggles to Deal With Pervy Snappers”, above n 223.

[252] Law Reform Commission (Ireland), above n 14.

[253] The Commission argues that privacy is worth protecting because of its inherent link with human dignity, its contributions to freedom, autonomy and self-determination, and its essential contributions to the organisation of civil society and to democracy, which rests on recognition of personal space and the requirement for those who enter public life to nevertheless have a “secluded space”. See above n 14, 3–4.

[254] Law Reform Commission (Ireland), above n 14, 8.

[255] Website of the Law Reform Commission for Ireland <http://www.lawreform.ie/> (last accessed 9 March 2004).

[256] Law Reform Commission (Ireland), above n 14,100–105.

[257] Law Reform Commission (Ireland), above n 14,106–108.

[258] They endorse four specific – but non-exhaustive – strands to the “public interest” defence: the detection and prevention of crime; the exposure of illegality or serious wrongdoing; informing the public on a matter of public importance; and preventing the public from being misled by the public utterances of public figures (broadly defined) where private beliefs and behaviour are directly at variance with same. See Law Reform Commission (Ireland), above n 14, 107.

[259] Law Reform Commission (Ireland), above n 14, 109–113.

[260] Sue Lowe “Law Struggles to Deal With Pervy Snappers”, above n 223.

[261] Brad Wong “Voyeurism by Cell Phone Charged”, above n 30.

[262] Stephanie Armour “Camera phones don’t click at work” (12 January 2004) USA Today, <http://www.usatoday.com/money/workplace/2004-01-12-phones_x.htm> (last accessed 24 January 2004).