C  v Holland [2012] NZHC 2155, 24 August 2012, Whata J

Counsel for the plaintiff:  S Webb and D Rollo

Counsel for the defendant:  G A Hair

As part of its extensive review of the law of privacy the Law Commission considered whether it should recommend a statutory privacy tort.[1] At that time the only form of a privacy tort was that developed in Hosking v Runting[2]; the public disclosure of private facts form of the tort where the facts disclosed were highly objectionable to the reasonable person. After public consultation the Law Commission recommended that the development of that form of the tort should be left to the common law.[3] It also recommended that any recognition and development of a tort of intrusion into solitude or seclusion and private affairs should be similarly be left to the common law.[4] In this carefully reasoned decision Whata J took up the invitation.

In reviewing the common law tort of invasion The Law Commission considered that there was reason for concern in New Zealand about the growth of intrusive technology and the remedies people should have against its harmful use.[5] The facts of C v Holland were a graphic illustration of this.

Facts

Ms C was an occupant of a house owned by her boyfriend and Mr Holland. Mr Holland used a hand held digital camera and took 2 video clips of Ms C while she was showering. The defendant took the video clips from the roof cavity above the bathroom within the ceiling area.  They showed Ms C both partially dressed and completely naked, tending to her bikini line, entering the shower and later dressing before leaving the bathroom. There was no evidenced that the clips had been shown to anyone.  However, she discovered the existence of the videos and was understandably very upset by them. The defendant was charged under s216H of the Crimes Act 1961, where he pleaded guilty and was ordered to pay $1000 emotional harm and then discharged without penalty. Ms C sought damages for a breach of her right to privacy.

As there had been no publication Whata J thought it was appropriate that the common law should recognize, in addition to the Hosking privacy tort, an intrusion upon seclusion privacy tort equivalent to the North American tort of intrusion into seclusion. Whata J observed that privacy as a normative value could not seriously be doubted. He also noted that it was a feature of the common law that it had the capacity to adapt to vindicate rights in light of a changing social context. In respect of the latter privacy concerns were increasing with technological advances including the home computer. Hence he considered the affirmation of the tort was commensurate with the value already placed on privacy and the protection of personal autonomy. He also thought that the intrusion tort could be seen as an extension of or adjunct to the Hosking tort. Freedom from intrusion into personal affairs was already recognised as a value in New Zealand[6] and was amenable to familiar, justified limitations including the defence of legitimate public concern.

Establishing a claim

The judge thought that inorder to establish a claim the plaintiff must prove:[7]

(a) An intentional and unauthorized intrusion;

(b) Into seclusion, namely into intimate personal activity, space or affairs;

(c) Involving an infringement of a reasonable expectation of privacy;

(d) That is highly offensive to a reasonable person.

Comment

This is a very carefully reasoned decision where the judge drew extensively upon the law from other jurisdictions, including that of the United States and the UK. However, the case he found particularly informative was a recent decision of the Ontario Court of Appeal, Jones v Tsige[8]. Like the New Zealand Bill of Rights Act 1990 the Canadian Charter of Rights and Freedoms does not expressly affirm a right to privacy, but Sharpe JA nonetheless concluded that the plaintiff had a cause of action for the unwarranted intrusion on her privacy.

The elements of the tort emphasise that what is required is an intentional act, negligence will not suffice. The intrusion must be into matters that most directly infringe on personal autonomy. The last two elements reflect those of the Hosking  tort and are therefore consonant with existing privacy law in this country. The elements also reflect the intrusion aspect of the privacy principles developed by the Broadcasting Standards Authority.[9]

The two forms of the tort can complement each other. There has been publicity in the media recently about the topless photos of the Duchess of Cambridge taken while on holiday at a private retreat by a photographer using a telephoto lens. She was awarded an injunction by a French court preventing a French magazine from further publishing the photos on the basis that she had suffered a gross invasion of privacy.  I suggest the same result would be achieved here. Had the photos not been published she could succeed under the new form of the tort now recognised by Whata J. Once publication occurred she could use the Hosking form of the tort.

Rosemary Tobin