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McBride, Tim --- "Recent New Zealand case law on privacy: Part I - the Privacy Act and the Bill of Rights Act" [2000] PrivLawPRpr 2; (2000) 6(7) Privacy Law and Policy Reporter 106


Recent New Zealand case law on privacy: Part I — the Privacy Act and the Bill of Rights Act

Tim McBride

In recent years, privacy law has been a rapidly expanding area of law in New Zealand. The enactment of the Privacy Act 1993 and the impressive work of the Office of the Privacy Commissioner in giving privacy issues a high public profile have undoubtedly been major contributing factors. This year, for the first time, an optional final year paper in privacy law has been offered at the Law School of the University of Auckland. It attracted over 50 students. A privacy law course at Victoria University has also proved very popular in recent years.

The Privacy Act is careful not to define what is meant by ‘privacy’. This may well have been a wise thing to do. For many decades an intense debate has raged, at least in academic circles, as to the meaning of ‘privacy’. There have been countless attempts at definition — from the simple to the complex. There have been almost as many critiques of these attempts. One of the more widely accepted definitions of ‘privacy’ is that of Professor Ruth Gavison:

Our interest in privacy ... is related to our concern over our accessibility to others: the extent to which we are known to others, the extent to which others have physical access to us, and the extent to which we are subject to other’s attention ... (‘Privacy and the Limits of the Law’ (1980) 89 Yale Law Review 421, 423).

Gavison identifies the three key elements of her definition as being secrecy, solitude, and anonymity. A comprehensive commentary on the evolving law in New Zealand relating to those three elements is well beyond the scope of this modest article. Rather, it focuses principally on recent develop-ments under the Privacy Act 1993, together with the privacy jurisdiction of the Broadcasting Standards Authority under the Broadcasting Act 1989. Brief reference only is made to other areas, for example, privacy in employment.

In New Zealand, privacy concerns have arisen in an ever expanding range of contexts. Many of these appear to relate to what some commentators have termed ‘the emerging surveillance society’. The Privacy Commissioner, in a series of reports, has expressed increasing concern at various surveillance proposals by both public and private sector agencies. Some of those proposals now form part of New Zealand law and administration; for example, the new high tech system of driver licences. A number of these recent surveillance developments are discussed in a book published recently, The God Factor (Howling at the Moon Publishing Ltd, 1999), by New Zealand investigative journalist Ian Wishart.

It would be comforting to believe that our legitimate privacy expectations are now well protected by law in New Zealand. That is not my perspective. Despite the enactment of the Privacy Act 1993, and other developments in New Zealand privacy law, it is clear that much remains to be done if our interests in individual privacy are to be protected in a meaningful way. The need for further legal changes in the area of privacy law is highlighted in the Privacy Commissioner’s recently released report ‘Necessary and Desirable’: Privacy Act 1993 Review (1998). In that report, the Commissioner made over 150 recommendations for changes to the Privacy Act 1993 alone. A series of short articles commenting on aspects of the Privacy Commissioner’s Review are to be found in (1998) 5 PLPR 101-123 and (1999) 5 HRLP 4-34.

It is clear that some changes will be necessary to the Privacy Act if New Zealand privacy law is to be regarded as ‘adequate’ in terms of the requirements of the European Union Directive on Data Protection 1995. This Directive came into force in October 1998. Among other things, the Directive prohibits the export from Europe of personal data to other countries which do not provide ‘adequate’ protection of personal data. Our Privacy Commissioner has recently indicated that New Zealand is unlikely to be included on the ‘White List’ (his words) of countries considered by the EU to provide adequate protection for personal data. Changes to the Privacy Act appear necessary; for example, removing the restrictions on the right of access to personal information held in New Zealand by persons outside New Zealand, who are neither New Zealand citizens nor permanent residents (see Blair Stewart, Assistant Privacy Commissioner, Adequacy of Data Protection Measures: The New Zealand Case Office of the Privacy Commissioner, New Zealand, June 1999).

Evolution of New Zealand privacy law

Given that a major conference on the future of the New Zealand Constitution, ‘Liberty, Equality, Community’Constitutional Rights in Conflict? (Legal Research Foundation), is taking place in Auckland at the time of writing (August 1999), it is interesting to reflect for a moment on the fleeting consideration given to the right to privacy in the 1985 White Paper, A Bill of Rights for New Zealand. This White Paper contained a proposal for a constitutionally entrenched Bill of Rights. Despite the fact that the individual’s right to privacy was already recognised, internationally at least, as a fundamental human right (Universal Declaration of Human Rights 1948, art 12; International Covenant on Civil and Political Rights 1966, art 17), the White Paper did not favour inclusion of a right to privacy as such. It took the view that it would be inappropriate to ‘attempt to entrench a right that is not by any means fully recognised now, ... and whose boundaries would be uncertain and contentious’ (para 10.145). No New Zealand cases were cited. This was undoubtedly a reflection of the fact that there were, at that time, no New Zealand privacy cases as such, but rather decisions in a wide range of legal contexts (for example, defamation and breach of confidence) where various interests in privacy and/or confidentiality were explicitly, or more commonly, implicitly, referred to (for example, Kirk v AH & AW Reed [1968] NZLR 801).

In the years following the publication of the 1985 White Paper, New Zealand privacy decisions began to emerge. They involved the possible existence of a separate tort of privacy: Tucker v News Media Ownership Ltd [1986] 2 NZLR 716, 733 (McGechan J); T v A-G [1988] NZHC 656; (1988) 5 NZFLR 357 (Ellis J); Morgan v TVNZ Ltd (HC Christchurch, 1 March 1990, CP 67/90) (Holland J); Marris v TV3 (HC Wellington, 14 October 1991 CP 754/91) (Neazor J); X v A-G [1994] NZFLR 433 (Master Hansen); Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 (Gallen J). These decisions will be well known to many members of this audience. Certainly they are well known to law students who are required to study them as part of the law of torts.

The decisions are discussed in the specialist commentaries (see The Law of Torts in New Zealand 2nd edition, 1997, (S Todd, General Editor), Ch 17, ‘Privacy’ by Professor John Burrows, pp 964-968; Burrows and Cheer, Media Law in New Zealand 4th edition, 1999 pp 173-178). After analysing the decision of Gallen J in Bradley v Wingnut Films Ltd, Professor Burrows, the leading New Zealand academic commentator in this area, identifies the elements of the tort of privacy under New Zealand law as follows.

The High Court has held that common law privacy remedies may still be available, despite the enactment of the Privacy Act: Hobson v Harding (1995) 1 HRNZ 342 (Thorp J).

New Zealand Bill Of Rights Act 1990 s 21

While the NZ Bill of Rights does not contain a right to privacy as such, important traditional privacy interests are recognised in s 21, which states that ‘everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise’. In a series of important New Zealand Court of Appeal decisions involving the interpretation of aspects of s 21, members of the Court have referred, on occasions, to important privacy values and interests which, in their view, make up the concept of privacy. For example, in one of the earlier Court of Appeal decisions involving s 21, Thomas J stated:

... essentially, s 21 is concerned to protect those values or interests which make up the concept of privacy. Privacy connotes a variety of related values; the protection of one’s property against uninvited trespass; the security of one’s person and property, particularly against the might and power of the state; the preservation of personal liberty. ... While necessarily phrased in terms of individual values, the community has a direct interest in the recognition and protection of this broad right to privacy. It is a valued right which is esteemed in modern democratic societies (R v Jefferies [1994] 1 NZLR 292, 319).

Similarly, in the more recent decision R v Grayson & Taylor [1997] 1 NZLR 402, 407), the Court states:

Contemporary society attaches a high value to privacy and to the security of personal privacy against arbitrary intrusions by those in authority. Privacy values underlying thes 21 guarantee are those held by the community at large ...

Despite these stirring statements on the importance to be attached to the right of individual privacy, there has been a dramatic reduction in the weight which the Court has been prepared to give to privacy expectations, especially of those suspected of involvement in serious criminal activity. In a trenchant academic criticism of the approach of the Court of Appeal in a series of key decisions involving aspects of s 21, Canadian commentator, Hart Schwartz, has stated that the Court:

has moved the goal posts backwards, constantly inventing scenarios involving searches of property that are more invasive than the one in the case before it in order to hold the police conduct to be reasonable .... (‘The Short Happy Life and Tragic Death of the New Zealand Bill of Rights?’ [1998] New Zealand Law Review 259, 262.)

As a result of the approach adopted by the Court of Appeal in these leading s 21 decisions, few attempts to exclude evidence on the basis that there has been a breach of aspects of s 21 have been successful. Recent Court of Appeal decisions where attempts to exclude evidence on this basis have been unsuccessful include R v H (CA 411/98; 15 March 1999) and R v Lewis (CA 399/98; 13 May 1999). However, in R v Hapakuku (CA 122/99; 26 May 1999) the Court of Appeal held that the appellant’s right to be secure against unreasonable search had been breached and that as a consequence, the evidence obtained was inadmissible. In this case, the search warrant was executed at approximately 1:00 am in the morning, three days after it had been issued. The Court was of the view that in the circumstances of the particular case ‘involving the unlawful entry by force at an unreasonable hour of a dwelling house’ meant that the appellant’s right to be secure against unreasonable search had been breached (8).

Privacy Act 1993

This Act:

The Privacy Act does not have primacy over other statutes which limit access to personal information. In Attorney-General v Hekkenberg [1998] 3 NZLR 257, the Court of Appeal held that the secrecy provision in the Police Complaints Authority Act 1988 (s 32) overrode any entitlement to personal information under the Privacy Act 1993. This conclusion followed from the Court’s interpretation of s 7(2)(a) of the Privacy Act which provides that nothing in IPP 6 (that is, the access to personal information principle) derogates from any statutory provision that imposes a prohibition or restriction in relation to the availability of personal information.

I assume that all members of this audience have some professional familiarity with the workings of the Privacy Act. Those who do not may find The Privacy Act — A Guide (GP Publications, 1994), by Longworth and McBride, to be of assistance.

Key components of a legal practitioner’s Privacy Act ‘survival kit’ (to adopt Judge Anand Satyanand’s expression), include the following:

Issues of interpretation under the Privacy Act have arisen in two principal contexts:

In its reported decisions involving the Privacy Act, the Complaints Review Tribunal has been required to interpret a number of key terms and expressions, including:

These interpretations are discussed in detail by Roth — see paras 1006.3-1006.65 and 1027-1029.27. Because of this, I wish to focus my comments on 1998-9 developments.

Privacy Commissioner’s 1999 Case Notes

In August 1999, the Commissioner released his latest set of Case Notes. I have been informed by his Office that these are the first Case Notes to be published since the comprehensive Compilation of Case Notes referred to above. The Case Notes highlight various difficulties which may be faced by complainants in pursuing meaningful remedies under the Privacy Act 1993. For example, in CN 18776, the Privacy Commissioner was of the view that there had been a clear breach of IPP 11, in that a debt collection agency had sent a faxed copy of a demand letter relating to a personal debt, allegedly owed by a solicitor, to the solicitor’s workplace. Despite this, the Commissioner took the view that there had been no interference with the solicitor’s privacy (as required by ss 66(1)), because the solicitor had been unable to point to any adverse consequences arising from the breach of IPP 11.

The apparent reluctance of the Privacy Commissioner to refer complaints to the Proceedings Commissioner is also highlighted. In CN 10855, a teacher had complained that his request to his school’s Board of Trustees for a report relating to him had been refused. The Board took the view that the material relating to him in the report had been prepared on the basis that it would be regarded as confidential; that is, covered by the exception to the right of access to personal information relating to evaluative material (s 29(1)(b)). Despite the Commissioner taking the view that the Board ‘did not have a proper basis to withhold the information’, he decided not to refer the matter to the Proceedings Commissioner. This decision was taken, having ‘considered the context of the complaint, the policy and resource issues’. Instead, the teacher was simply advised of his right to commence proceedings on his own behalf before the Complaints Review Tribunal.

Similarly, in CN 13518, the Privacy Commissioner was of the view that the actions of a law firm, in sending a fax to the complainant at his workplace demanding that a cash retainer be paid later that day, had resulted in the complainant suffering a significant loss of dignity and humiliation (s 66(1)). Despite this finding, together with a finding that the firm had breached IPPs 5 and 11, the Commissioner, on failing to reach a settlement, again simply advised the complainant of his right to take the matter to the Complaints Review Tribunal.

When the Privacy Act 1993 was being drafted, it was my understanding (and, I believe, that of most others with an interest in how the new Act should operate) that it was intended that most proceedings before the Complaints Review Tribunal would be conducted, if necessary, by the Proceedings Commissioner — in other words, most proceedings would be commenced without the complainant having to meet the cost. In fact, this has not occurred. The current Proceedings Commissioner, in a personal communication to me, has confirmed that the first time he was formally involved in actual proceedings before the Complaints Review Tribunal involving issues under the Privacy Act was in the case of Proceedings Commissioner v Harder (CRT Decision No 14/99; 28 May 1999). In his communication the Proceedings Commissioner made it clear, however, that he had managed to settle a number of complaints under the Privacy Act after they had been referred to his Office by the Privacy Commissioner.

Privacy Act 1993: Complaints Review Tribunal decisions

The Complaints Review Tribunal decisions, contained in the two volumes of CRT decisions published by the Office of the Privacy Commissioner (referred to above), make interesting reading. Twenty CRT decisions (to April 1999) are contained in those two volumes. Not all of them involve full substantive hearings; some relate to preliminary matters, others relate to the issue of costs. Putting that to one side, however, one thing that struck me immediately was how infrequent it was for a plaintiff to be legally represented. I was able to count only three occasions when a plaintiff had been legally represented by a lawyer. In one of those cases, I was not completely confident that the representative was a lawyer — he may have been a relative, as he bears the same surname as the plaintiff. On another occasion, the plaintiff was represented by an industrious law student (successfully, I might add — his skills as an advocate were commended by the Tribunal).

On the other hand, on all but one occasion it appeared that the defendant had been legally represented. In the one occasion where it is clear that the defendant (a doctor) was not represented, $3000 was awarded to the plaintiff who represented herself (W v P (CRT Decision No: 2/99; 16 February 1999)). It would be interesting to discover why he chose not to be legally represented.

It is immediately apparent from reading the CRT’s decisions that the Tribunal goes out of its way to ensure that unrepresented plaintiffs appearing before it receive a fair hearing. Yet the increasing complexity of issues arising under the Privacy Act 1993, coupled with the fact that defendants are invariably legally represented, may well count against an unrepresented plaintiff. On occasions, plaintiffs have been required to pay costs, although up until recently, these awards of costs have been modest (for example, $500) unlike those sometimes awarded against community groups by the Environment Court. However, very recently, a much more substantial award of costs was made against an unrepresented plaintiff. Following unsuccessful proceedings under the Privacy Act, conducted by anti-pornography campaigner Phillip Smits against the owners of the ‘Showgirls’ strip club in Customs Street, Auckland, the Complaints Review Tribunal awarded $6000 in costs against him.

Given that so many plaintiffs have been legally unrepresented, it is interesting to note that a number of them have been successful in that the Tribunal has awarded one or more of the remedies available to it: see, for example, W v DSW (CRT Decision No: 12/98; 21 August 1998), where $1000 was awarded to the plaintiff.

Recent decisions of the Complaints Review Tribunal

Since April 1999 the Tribunal has decided a number of interesting and potentially important cases under the Privacy Act.

Cable v NZ Insolvency & Trustee Service

In Cable v NZ Insolvency & Trustee Service (CRT Decision No 10/99; 6 May 1999) the plaintiff (who was unrepresented) alleged that the defendant had committed a breach of IPP 6, in that it withheld personal information sought by him. Following the sharemarket crash of October 1987, and subsequent court proceedings, the plaintiff had been found liable for a debt of approximately $250,000 in 1996. Subsequently, he was declared bankrupt. Initially, the plaintiff had sought access to a fax, dated 5 June 1997, which had been sent by his estranged wife to the defendant. In the course of determining whether to grant the access request, the defendant entered into correspondence with the wife’s solicitor. When access was declined, the plaintiff complained to the Privacy Commissioner. He sought access to the fax in question and the other correspondence between the defendant and his estranged wife’s solicitor.

The plaintiff’s view was that the ensuing investigation by the Commissioner encompassed both categories of information. However, the Privacy Commissioner (and the defendant) took the view that the investigation under the Privacy Act covered only the fax of 5 June 1997. The reason advanced by the Commissioner was that the plaintiff had not made a separate formal request of the defendant for the other information.

The Complaints Tribunal supported the plaintiff. The Tribunal did not:

accept that the way in which the plaintiff’s complaint was investigated should affect or limit [its] ... jurisdiction to hear and determine proceedings containing the same allegations as the original complaint to the Commissioner ... (at 4).

Other reasons were also cited by the Tribunal for its decision ‘to hear and determine the whole of the plaintiff’s allegations at the hearing’ (at 4). It noted that the plaintiff had been unrepresented:

He is not a lawyer. He does not have the appreciation of the fine detail of the distinctions between various categories of information and the reasons for withholding access to information that lawyers well versed in the Privacy Act have ... (at 5).

Finally, the Tribunal noted that it was required by the Complaints Review Tribunal Regulations 1996 ‘to act in a way that best secures the speedy, fair and just determination of proceedings before it [reg 3]’ (at 5).

The Tribunal took the view that it was entitled to inspect all the documents held by the defendant. Having done so, it then determined that the defendant was entitled to withhold the fax in question from the plaintiff (under s 27(1)(d) of the Privacy Act 1993) and that the correspondence with the wife’s solicitor could also be withheld under s 29(1)(f). The latter ground relates to documents able to be withheld on the basis that they are subject to legal professional privilege.

While the Tribunal’s desire to obtain ‘closure’ of the particular proceedings, while at the same time doing justice to the plaintiff, is to be commended, the approach it took in Cable appears contrary to that intended by the drafters of the Act.

Ilich v Accident Rehabilitation & Compensation Insurance Corporation

In Ilich v Accident Rehabilitation & Compensation Insurance Corporation (CRT Decision No 11/99; 12 May 1999), the defendant accepted that it had breached Rule 11 of the Temporary Health Information Privacy Code 1993 in disclosing the contents of a memo containing personal information about the plaintiff to the plaintiff’s brother. However, it did not accept that the plaintiff had suffered any damage as a result. On the evidence presented (again by an unrepresented plaintiff), the Tribunal was not satisfied that there had been significant humiliation, loss of dignity, or injury to the feelings of the plaintiff (as required by s 66(1)). ‘Neither the brother nor the other family member was called to give evidence to confirm’ that the relationship had still not recovered as a result of the disclosure (at 4). This comment again appears to highlight some of the difficulties faced by unrepresented plaintiffs in an adversarial forum (albeit one without the formality of the regular courts).

Proceedings Commissioner v Harder

In Proceedings Commissioner v Harder (CRT Decision No 14/99; 28 May 1999), it was alleged that the defendant, a barrister, had committed breaches of two of the collection principles contained in the Privacy Act (that is, IPPs 3 and 4). The facts were as follows. In 1996, the defendant was acting for a man who had been charged with breaching a non-violence order. Harder was rung by the woman in whose favour the order had been made. She contacted him by telephone before the hearing of the charge and made an offer to resolve the matter. Harder agreed to seek instructions from his client and arrangements were made for the woman to contact him a few days later. When she did so, she was told that her offer was unacceptable. During this conversation, Harder proceeded to ask her a series of questions. She was unaware that both conversations had been taped by him. The woman became aware of this only shortly before the hearing, when she was contacted by the police. When the hearing of the charge began, the complainant was sitting in the public gallery of the court. Harder indicated to the judge where she was sitting, and stated that he would be requiring her to give evidence under oath. He then held up the tapes of the conversations and indicated that the tapes would show she had acted improperly.

The woman subsequently lodged a complaint with the Privacy Commissioner. Following an investigation, the Commissioner was of the view that the defendant’s failure to alert her to the fact that he was recording their telephone conversations was a breach of IPPs 3 and 4. When the Commissioner was unable to settle the complaint, he referred the file to the Proceedings Commissioner. Proceedings were subsequently commenced before the Complaints Review Tribunal, the first time the Proceedings Commissioner has elected to do so under the Privacy Act 1993. At the hearing the complainant gave evidence. The defendant did not appear. He sought an adjournment, which was refused. On his behalf it was submitted that the telephone calls were unsolicited because he was not collecting information within the meaning of that word in s 2 of the Privacy Act. That section defines ‘collect’ as not including the receipt of unsolicited information.

The plaintiff, on the other hand, argued that the collection began as soon as the defendant switched on his tape recorder. At that time, it was submitted, he was no longer the passive recipient of unsolicited information. It was argued that IPP 3 required the defendant to tell the complainant the purpose for which the information was being collected. The plaintiff (that is, the Proceedings Commissioner), also submitted that non-compliance with IPP 3 could itself be sufficient to give rise to an unfair collection under IPP 4.

In its decision, the Complaints Review Tribunal referred to the Court of Appeal decision in Talbot v Air New Zealand Ltd [1995] 2 ERNZ 356 as authority for the proposition that in determining whether a secret taping of a telephone conversation is unfair, the particular facts and circumstances must be considered. The Tribunal considered at some length circumstances pointing for and against an unfair collection in this situation.

Those indicating unfairness included:

On behalf of the defendant, it was argued that the circumstances suggesting that the particular tape recording was not unfair included:

The Tribunal accepted the plaintiff’s submissions that there had been a collection of personal information (for the purposes of the Privacy Act) once the defendant switched on the tape recorder. At that point, he became

an active recorder and therefore collector of the information provided .... [The] ... conscious (as opposed to automatic) act of recording the conversation shows an intention to collect it, regardless of the use to which it may or may not eventually be put ... (at 6).

It was accepted that the complainant was unaware that the defendant was tape recording their conversations. However, before determining whether there had been a breach of IPP 3, the Tribunal had to consider whether any of the exceptions to the principle were applicable. Under s 87 of the Privacy Act, the onus of proving any such exceptions lies with the defendant. In this case, the defendant had chosen not to give evidence. By doing so, he had not ‘even assumed that onus, let alone discharged it’ (at 7).

The Tribunal was satisfied that none of the exceptions applied and that the defendant had breached IPP 3 in a number of respects (for example, by not telling the complainant that he was taping their telephone conversations).

The Tribunal also considered that there had been a breach of IPP 4. At the time the complainant contacted the defendant, she was

ignorant of much that is connected to the law, its practices and procedures, the legal profession, the courts, the way the police operate. She knew little of the defendant. She did not know enough to be wary of communicating a good idea to him .... She was, in other words, inappropriately trusting and naive. We believe the defendant formed this view of her also and took advantage of that ... (at 8).

The Tribunal accepted that the plaintiff had suffered significant humiliation and loss of dignity (that is, an interference with her privacy under s 66(1)(b)). She

experienced stress, sleepless nights, humiliation and a sensitivity to providing any personal information over the telephone. She regarded herself as already the victim of domestic violence and then as doubly victimised by the actions of the defendant ... (at 9).

Harder was ordered by the Tribunal to pay $7500. An order was also made that he be restrained from collecting personal information in circumstances where the provider of the information does not know the fact or purpose of the collection, or the intended recipients of the information so collected.

The defendant appealed to the High Court. In its decision, Harder v The Proceedings Commissioner (AP.65 SW/99; 13 August 1999), the High Court upheld the decision of the Tribunal, but reduced the damages to $2750. The Court took the view that the Tribunal’s award was ‘far too high as compensation for the breaches committed here which we see as being at the lower end of the spectrum’ (at 9).

The High Court was clearly concerned that the Tribunal ‘in fixing the level of damages awarded, was influenced by the use that was made of the tape in Court by the appellant’ (at 8). It noted that the Proceedings Commissioner had been careful to limit the claim to alleged breaches of two of the collection principles (that is, IPPs 3 and 4). The claim did not involve an alleged breach of the Privacy Act arising from the ‘use’ made by the defendant of the information collected from the complainant. Because of this, and for what the High Court termed ‘sound policy reasons’, the use made by the defendant could not be a relevant consideration in determining the quantum of damages:

... for sound policy reasons, which have been part of our law for centuries, barristers cannot be sued for what they say or do in Court. In Court the Judge is in control and a barrister who steps out of line can be punished for contempt or alternatively, the conduct may be referred to the Disciplinary Bodies of the profession for appropriate action ... (at 8).

The Court referred to the New Zealand Law Society Rules of Professional Conduct for Barristers & Solicitors (5th edition 1998). Included in the latest set of Rules is the following paragraph:

It is an invasion of a person’s privacy to tape a conversation without that person’s consent. It is unprofessional and discourteous for one practitioner to do so in respect of another. If a practitioner wishes a conversation by telephone or otherwise to be taped, the specific consent of the other practitioner or employee must first be obtained. Practitioners should note Privacy Principles 2 to 4 of the Privacy Act 1993 (para 7).

The Court was clearly concerned that the Tribunal had been heavily influenced by the complainant’s evidence as to how she felt, after she was ‘exposed’ (my words) by the defendant’s actions in court. As the ‘use made of the tapes in Court was not, and could not, be the basis of’ of her claim, any issues of possible detriment suffered by her (as required by s 66(1)(b)), had to ‘relate solely to the circumstances whereby she learned a day or two before the hearing that her two conversations had been taped’ (at 9).

Any humiliation she felt as a result of what happened in court was of no relevance to a possible award of damages under the Privacy Act. It was for this reason that the High Court considered that the damages awarded by the Complaints Review Tribunal were ‘far too high’ in the particular circumstances.

Smits v Santa Fe Gold Ltd

In Smits v Santa Fe Gold Ltd (CRT Decision No 12/99; 18 May 1999), the plaintiff alleged that the defendant (the owner of the ‘Showgirls’ strip club in Customs Street, Auckland) had committed breaches of the Privacy Act 1993 by video taping lapdances which were performed for him by women employed by the club. In his proceedings before the Complaints Review Tribunal, the plaintiff had described himself as someone ‘concerned with the growth of the adult entertainment industry and the way it affects people’ (at 1). The New Zealand Herald described Mr Smits as an ‘anti-porn activist’ (16 August 1999). The plaintiff indicated that the reason he visited the strip club on approximately 15 occasions was to determine whether any laws were being breached. On at least six of these occasions he purchased lapdances. At the time he purchased the first lapdance, he said he was unaware that he was being filmed. The defendant’s evidence, in response, was that the first lapdance had not been filmed because no cameras had been installed at the time. Subsequently, security cameras were installed in the lapdance booths. Signs bearing the words ‘video surveillance’ were also installed. Film from the cameras was apparently retained for a week and then taped over.

The defendants argued that they had complied fully with the information privacy principles in the Privacy Act. In their view, the proceedings were ‘an abuse of process in that the plaintiff was using the Privacy Act for an ulterior and improper purpose’ (at 4).

The Complaints Review Tribunal found that there had been no breach of the Privacy Act. It accepted that the collection of personal information by means of the security cameras was for a lawful purpose. There was therefore no breach of IPP 1. Similarly, there had been no breach of IPP 3:

We think the use of the words video surveillance are sufficient to alert patrons to the purpose for which the cameras were operating. There was no evidence that the information collected by the cameras was disclosed to any other person. For these reasons we are satisfied that the defendant had not breached information privacy principle 3 ... (at 5).

Even if it had found that there had been a breach of any of the IPPs, the Tribunal noted that it would still have had to determine whether the plaintiff had in fact suffered any of the losses specified in s 66(1)(b) of the Act. It was unable to find any such evidence. The evidence given by the plaintiff was

fatal to his claim of humiliation because the only time he claim[ed] ... to be unaware of video surveillance was the time when it was not occurring. On all other occasions he was aware of the video surveillance (whether or not it was being recorded). He cannot claim to be humiliated by a practice of which he was aware ... (at 6).

Finally, the Tribunal noted yet another reason why the plaintiff’s claim could not succeed. Apparently, prior to the hearing before it there had been a request by a television company to film the entire hearing. The plaintiff had apparently been prepared to consent to this request:

The filming would have included his giving evidence about that by which he says he was humiliated — the filming of a lapdance performed on or near him. We take the view that this consent completely undermined his claim to be humiliated ... (at 6).

Subsequently, Smits was ordered to pay costs of $6000 to the defendants. The Tribunal clearly accepted the defendant’s submission that the plaintiff, in commencing proceedings under the Privacy Act, had been using the Act for an ‘ulterior and improper purpose’.

Tim McBride, Senior Lecturer in Law, University of Auckland.

This paper was first presented as ‘Recent Developments in NZPrivacy Law’ as part of the University of Auckland Faculty of Law Legal Update seminar series, Winter 1999. It will be continued in the next issue of PLPR.


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