The excellent Media Law Journal blog from New Zealand has alerted us to a new report from the New Zealand Law Commission “Invasion of Privacy: Penalties and Remedies: Stage 3 – NZLC R 113 (or here in HTML). The second stage in this lengthy review of the Privacy Law was a paper on “Public Registers – NZLC R 101 (here in HTML).
The NZLC also produced an interesting “Study Paper” on “Privacy Concepts and Issues, NZLC SP19 and a number of “Issues papers”.
The report is a hefty 132 pages. It recommends legislation to provide for criminal offences and a right of civil action in relation to the use of visual surveillance, interception and tracking devices (Rs1 to 17). The report also recommends some changes to the New Zealand Harassment Act 1997 so that it applies more clearly to instances in which surveillance is used for the purpose of harassment; some new offences targeting voyeurism; and some changes to the law governing surveillance by private investigators.
Like the recent House of Commons Select Committee (see our post here), the report recommends that
R28 The tort of invasion of privacy recognised in Hosking v Runting should be left to develop at common law. and
R29 Any recognition and development of a tort of intrusion into solitude, seclusion and private affairs should be left to the common law.
In Hosking v Runting ([2004] NZCA 34) the New Zealand Court of Appeal decided by a majority of 3:2 that there is a common law tort of invasion of privacy in New Zealand. Its ingredients are:
(i) The existence of facts in respect of which there is a reasonable expectation of privacy; and
(ii) Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.
The Report notes that, since 2004, there have only been three reported cases on the tort (see, in particular, Rogers v Television New Zealand Ltd [2008] 2 NZLR 78 (SC)). The Report’s conclusion on this point is explained in this way:
However, after careful deliberation we have decided that the tort should be left to develop at common law. The common law has the great advantage that in a fast-moving area judges can make informed decisions on actual cases as they arise. Privacy is particularly fact-specific. As has been said in the United Kingdom, each case requires an intense focus on the individual circumstances. The common law is well-suited to that task. The common law is also flexible, and can thus develop with the times. Statute creates a risk that what is enacted today may be out of date tomorrow. To avoid this dilemma, any privacy statute would have to be drafted in open-ended terms, and might end up being little advance on the common law. (para 7.9).
They note that the Hosking tort (like the tort of “misuse of private information” in England and Wales) is confied to publicity of private facts and consider whether to recommend a statutory “intrusion tort”. They conclude that they should not on the basis that
“the danger in codifying the intrusion tort would be that this could constrain and pre-empt aspects of the common law development of the publicity tort. They are part of one package. In the end, therefore, we have decided to leave the courts to determine whether there should be an intrusion tort, and if so what its ingredients should be. The view of most submitters was that the matter should be left to the courts”.
The common law in New Zealand has developed without the assistance of anything equivalent to an Article 8 right – the New Zealand Bill of Rights Act contains no “right to privacy”. It has been strongly influenced by US jurisprudence (for a discussion after the Hosking decision see, S Lulham, “What is, and what should be the extent of New Zealand’s new tort of breach of privacy?” [2005] Canter Law Rw 4). Nevertheless, there are many points of contact with the English law and the Report is important reading for those interested in privacy law.
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