In the case of C v Holland ([2012] NZHC 2155), the New Zealand High Court has recognised, for the first time, the existence of a “privacy intrusion” tort – in a claim arising out the surreptitious filming of the plaintiff in the shower.  The law of New Zealand had previously only recognised a privacy tort arising out of the publication of private information.

Facts

The Plaintiff was a 25 year old woman who lived with her boyfriend in house which he jointly owned with the Defendant.  The Defendant made a video recording of the plaintiff in the shower, both partially dressed and naked, using a digital camera placed in the roof cavity above the bathroom.  There were two video clips, running for a total of nearly 4 minutes.

The Plaintiff and her boyfriend subsequently discovered the video clips on the Defendant’s computer and reported the matter to the police.  The Defendant pleaded guilty to the offence of making an intimate visual recording and pleaded guilty he was ordered to pay NZ$1,000 in “emotional harm reparation” with no other penalty.

The Plaintiff subsequently brought High Court proceedings for invasion of privacy which were heard on 30 April 2012.  Whata J (pictured) gave judgment on 24 August 2012.

Judgment

There was no dispute as to the facts.  The judge noted that ([6] to [7])

(a)  The Defendant had intruded into the Plaintiff’s solitude and seclusion when he recorded video clips of C in the bathroom partially undressed or naked; and

(b)  The Defendant infringed a reasonable expectation of privacy when videoing the Plaintiff in the bathroom partially undressed or naked.

(c)   The Defendant’s conduct was highly offensive to a reasonable person.

The central issue was whether the tort of “intrusion upon seclusion” should form part of the law of New Zealand.  There was no existing authority on the point [8].

The Judge noted that in the United States, there was a privacy tort of “intrusion on seclusion” the elements of which were

  1. An intentional and unauthorised intrusion;
  2. Which was highly offensive to a reasonable person; where
  3. The matter intruded upon was private; and
  4. The intrusion caused anguish and suffering. [15]

Although there was no direct authority on the intrusion tort, the Judge examined a number of criminal authorities (in particular R v Williams [2007] 3 NZLR 207) and statutes and concluded

“New Zealand’s legal framework has embraced freedom from unauthorised and unreasonable physical intrusion or prying into private or personal places such as the home, and freedom from unauthorised recordings of personal, particularly intimate affairs whether published or not. ” [32].

In the leading case of Hosking v Runting ([2005] 1 NZLR 1)  the majority of the New Zealand Court of Appeal recognised that there was a cause of action protecting in relation to publicising private information.  However, the Court did not decide whether there should be a tortious remedy for unreasonable intrusion on solitude (see [34] – [41]).

The Judge noted that, in the context of surveillance, the common law appeared to have embraced trespass as a condition precedent to unlawful surveillance (see Lorigan v R [2012] NZCA 264 [28]).

He then considered the English law, relying on Wainwright v Home Office ([2004] 2 AC 406) in support of the conclusion that “the Courts in the United Kingdom remain steadfast in their refusal to acknowledge a tort of intrusion into privacy” [55].

The Judge noted that the Defendant advanced three key objections to the transformation of privacy values into actionable rights at common law ([65])

(a)    Privacy per se is not justiciable;

(b)   It is for Parliament, not the Judiciary, to resolve the weight to be accorded to privacy as a value within the complex matrix of competing interests and rights;

(c)    A privacy tort is not necessary.

In relation to (a), he accepted that a general claim to privacy may not be justiciable but it was “too late cogently to argue that judges in New Zealand are unable to adjudicate on the content and boundaries of a privacy right to be free from intrusions upon seclusion” [74].  He gave five reasons for this conclusion.  First, freedom from intrusion was a recognised value in New Zealand.  Second, it was amenable to familiar justified limitations.  Third, it was entirely compatible with and a logical adjunct to the recognised tort of “wrongful publication of private facts”.  Fourth, freedom of speech was only infringed when publication was also contemplated.  Fifth, the structure of the intrusion tort had clear similar to traditional torts based on the protection of property and the person.  Sixth, the common law had a capacity to adapt in the light of the changing social context [75].

In relation to objection (b), the Judge concluded that it was “functionally appropriate for the common law” to establish a tort equivalent to the North American tort of intrusion upon seclusion

“The affirmation of a tort is commensurate with the value already placed on privacy and in particular the protection of personal autonomy. As I have said, the similarity to the Hosking tort is sufficiently proximate to enable an intrusion tort to be seen as a logical extension or adjunct to it. This Court can apply, develop and modify the tort to meet the exigencies of the time” [86]

In relation to objection (c), he noted that existing protections from intentional intrusion were not comprehensive [89].

The Judge held that in order to establish a claim based on the tort of intrusion upon seclusion

“a plaintiff must show:

(a) An intentional and unauthorised intrusion;

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

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

(d) That is highly offensive to a reasonable person. [94]

The Defendant had clearly intruded into the Plaintiff’s intimate personal space and activity.  This intrusion infringed a reasonable expectation of privacy and was highly offensive to the reasonable person.  As a result, the Defendant was liable. [99] Damages remain to be assessed.

Comment

This judgment confirms the continuing vitality of the common law of privacy in New Zealand – in interesting contrast to the position in Australia where the development of the common law has been much slower. The common law of privacy in New Zealand has now adopted two of the four US “privacy torts”.

Although the English law has not explicitly recognised an “intrusion” privacy tort this would probably not have affected the result had this case been heard in England.  This is because – in contrast to the position in New Zealand – the English claim for “misuse of private information” does not require “publication” of the private information which has been misused.  The Court of Appeal accepted in Imerman v Tchenguiz ([2010] EWCA Civ 908) that a breach of confidence will take place if the defendant examines or looks at a confidential document ([65]) and the same analysis must apply to private information.

In other words, there will be a misuse if the defendant obtains and stores private information about the claimant.  It is well established that a photograph may contain private information and the video footage recorded by the defendant in this case would plainly be treated as private information in English law.  In other words, the recording and storage on computer by the defendant of footage of the claimant in the shower would be sufficient to constitute a misuse of private information.  There is, therefore, no need for an English “intrusion tort” in these circumstances.

Furthermore, it is arguable that the English “privacy tort” has, in fact, expanded to cover intrusion in any event.  As Eady J put it in CTB v. News Group ([2011] EWHC 1326 (QB))

“The modern law of privacy is not concerned solely with information or “secrets”: it is also concerned importantly with intrusion” [23].

A similar distinction was drawn by Tugendhat J in Goodwin v News Group ([2011] EWHC 1437 (QB)) [85]).  In other words, it is arguable that the conduct of the defendant in C v Holland would have been actionable in England, even if he had only observed the claimant in the shower and had not recorded video footage.   English law may already have a tort of “intrusion on seclusion”.

The impetus to develop the current law to cover this kind of situation comes from the same source as misuse of private information itself: the European Convention on Human Rights.  After the House of Lords refused to recognise a tort of invasion of privacy in Wainwright v Home Office ([2004] 2 AC 406) the case was, of course, taken to Strasbourg.  The Court of Human Rights found that, the requirement that the applicant to remove her clothes when entering a prison was a violation of her Article 8 rights (see Wainwright v United Kingdom ((2007) 44 EHRR 40).  Bearing in mind the positive Article 8 obligations of the United Kingdom (and hence the Courts as public authorities) there is a strong argument that a person who was wrongfully required to remove their clothes by a non-state actor should have a private law cause of action under English law.  This would be a “non-publication privacy tort”.

The other point of interest in the judgment concerns the requirement in New Zealand that, in addition to “reasonable expectation of privacy”, an intrusion is only actionable if “highly offensive to a reasonable person”.  The Judge rejected the Plaintiff’s argument that “a simple reasonable expectation of privacy test should be applied” [97].  He said that

“a one step reasonable expectation of privacy test comparable to the art 8 test applied in the United Kingdom for breach of confidence is not sufficiently prescriptive. The capacity for conflict between the right to seclusion and other rights and freedoms is very significant. This demands a clear boundary for judicial intervention. Furthermore, a highly offensive test will also set a workable barrier to the unduly sensitive litigant that seemed to trouble Lord Hoffmann in Wainwright”. [97]

The additional requirement of “offensiveness” was considered and rejected by the House of Lords in Campbell v MGN ([2004] AC 457) and has not been the subject of reconsideration in subsequent cases.   It has, from time to time, been suggested that an “offensiveness” requirement would improve English privacy law – by “raising the bar” for claims.   However, a stronger test for the “engagement” of Article 8 at the first stage would give rise to potential conflict with the Strasbourg case law and it seems likely that this will remain a point of divergence between England and New Zealand for some time to come.

This decision follows on the recognition of a tort of intrusion on seclusion earlier in the year by the Court of Appeal in Ontario (Jones v. Tsige 2012 ONCA 32)(see Case Comment) It, once again, shows the common law is gradually catching up with an issue which it has ignored for too long.