Evans, Katrine --- "Reverse gear for NZ's privacy tort: the Hosking decision" [2003] PrivLawPRpr 35; (2003) 10(4) Privacy Law and Policy Reporter 61

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Reverse gear for NZ’s privacy tort: the Hosking decision

Katrine Evans VICTORIA UNIVERSITY OF WELLINGTON

On the basis of the material before me and for the reasons given, I would respectfully differ from the previous decisions of this court supporting a tort of privacy.

Randerson J in Hosking v Runting.^[1]

It probably came as little surprise to any privacy law specialist that Randerson J found against the plaintiffs in the Hosking case. After all, the weight of precedent was against the Hoskings in their bid to prevent publication of photographs of their twin daughters. There were major factors in favour of the plaintiffs: the children were targeted for photography solely because their father is a celebrity, and their parents had kept them out of the public eye after their birth. However, the public nature of the street where the children were, the innocuous nature of the photographs, the lack of harassment and the fact that the Hoskings had given public interviews about their family situation before the children were born, all made it unlikely that the judge would be prepared to be radical in his approach to privacy law. Few could have predicted, however, exactly how he would have ended up approaching the matter — for in the way he dismissed the Hoskings’ case, his Honour has thrown a large spanner in the works of privacy law.

Decision

Mike Hosking and his wife Marie separated in about August 2002, when their twin daughters were just over a year old. Given Mr Hosking’s position as a very well known television presenter, the separation attracted considerable media attention, particularly from the women’s magazines. In the lead-up to Christmas 2002, New Idea decided to publish an article about the Hoskings’ first Christmas apart. While the magazine had file photographs of both Mr and Mrs Hosking, it did not have any of the twins, Ruby and Bella, as they had never been photographed in public.^[2] New Idea therefore commissioned photographs of the children from professional photographer Simon Runting, the first defendant. He managed to get pictures of Mrs Hosking pushing the twins in their pushchair in a busy Newmarket street. He did not harass the Hoskings at all; indeed, Mrs Hosking was unaware of the photography until the proposed publication came to her attention.

The Hoskings opposed the publication of the photographs and signalled their intention to take the matter to court. New Idea agreed not to publish the photographs until the case was decided, but included an article in the Christmas issue with file photos of Mr and Mrs Hosking. The article referred to the children by name, referred to the fact that they were conceived by IVF treatment (a matter made public by the Hoskings themselves in media articles) and stated: ‘Few have seen Marie in public since [the separation]. She has been careful to guard the girls from publicity and prying eyes.’

It is arguable at least that the magazine was essentially able to tell the story it wanted to tell in the article. However, the magazine owners Pacific Magazines Ltd, supported by ACP Media (New Zealand’s largest magazine publisher) and the Commonwealth Press Union (CPU), asserted that the photographs themselves were newsworthy. More generally, they vigorously defended their right to take and publish these types of photographs. The case represents an important precedent for public photography of celebrities and their family members including their children, and the judge’s agreement with the defendants is a significant victory for the media.

Randerson J considered, rightly, that he was not bound by any previous decisions of the courts in the privacy area. None of those decisions had come from a court higher than the High Court; although the Court of Appeal in the Tucker case had tentatively accepted that the existence of the tort was arguable, this certainly does not amount to a binding statement.^[3] Since he was free to go his own way, the judge conducted a careful survey of the claimed scope of the tort and of legislative provisions here, and common law developments overseas, and concluded that a privacy tort as such was unnecessary and unjustifiable.^[4] Instead, the learned judge concluded that where privacy interests required legal protection, as he recognised they might, breach of confidence as it has developed in the United Kingdom would provide the appropriate avenue. ‘Any development of the law of privacy by the courts should build incrementally on existing remedies, particularly the equitable action for breach of confidence.’^[5]

This article discusses how surprising the latter conclusion is. It concludes that, contrary to the judge’s reasoning, there is no intrinsic value in disposing of the privacy tort and substituting an extended breach of confidence action. On the contrary, such an approach fails to take proper account of the differences between confidentiality and privacy, and raises the risk that breach of confidence will be extended beyond its principled bounds.

Breach of confidence and privacy

Since Randerson J was considering the Hosking facts through confidence-tinted glasses, it was almost inevitable that he would find against the plaintiffs. After all, it is well established that where a matter is in the public domain, it cannot be said to be confidential,^[6] and there is little that is more ‘in the public domain’ than a Newmarket street shortly before Christmas. Any claim of confidence would therefore fall at the first hurdle — that the information must have the necessary quality of confidence about it.^[7] All the photographs of the children revealed was the fact that they were on the street with their mother, and what they looked like in their pushchair.

There are considerable differences between the Hosking facts and the facts of cases where courts have been sympathetic to breach of confidence claims as regards personal information, or intrusions on personal space. The photographs did not involve any ‘private acts’^[8] or embarrassing exposure,^[9] let alone sexual activity;^[10] the parents had taken no particular steps to hide the children from public view;^[11] there was no established risk to mental health;^[12] and there was no formal or well publicised prior agreement that the children would not be photographed.^[13]

The categories of confidentiality are far from closed, but it is hard to envisage a court would prepared to stretch the action quite this far. This is particularly the case in New Zealand. To date, the action for breach of confidence has been limited to situations involving a relationship of confidence including third party receivers with notice of the breach of confidence arising from a relationship.^[14] Justice Nicholson’s refusal of the injunction on grounds of confidentiality in P v D is exactly in line with this:

[16] ... I do not accept ... that the defendants must have known or ought to have known that the information was disclosed to them in breach of confidence and have been aware that it could only have initially come from a person who was in a relationship of confidence with P.

[17] If true, the information could have come from a person who was not under an obligation of confidence. For instance, a member of the general public ... or a person associated with P’s work activities ...^[15]

There seems to be no contrary precedent in New Zealand. Unless the Court of Appeal decides otherwise, therefore, any judge should be reluctant to radically go against such established authority. This did not stop Randerson J from suggesting that New Zealand proceed along the path which the British law has followed, a path which is discussed below. This wholesale re-invention of New Zealand breach of confidence law is not acknowledged in the judgment. It can therefore be criticised for the same reasons that his Honour criticised the development of the privacy tort: there is a strong argument that any such sweeping change should at least be done by the higher courts, and, even better, by Parliament.

But what is wrong with the British approach anyway?

Confidentiality traditionally deals with protection of secrets and the integrity of relationships of trust,^[16] whereas privacy simply deals with control over the extent to which one is accessible to others.^[17] Removing protection of relationships as the rationale for breach of confidence artificially strains the boundaries of confidence.^[18] To do so gives the courts the problem of defining in very different terms how the obligation of confidence arises. An interesting feature of the recent British confidentiality cases — based on statements from the Chief Justice of the Australian High Court in ABC v Lenah Game Meats Pty Ltd^[19] and noted by Randerson J — is that they indicate an obligation arises when there is a ‘reasonable expectation of privacy’ on the part of the information subject.^[20] So to define your new types of obligations, you have to use privacy language. If you are using privacy language, why not call the action ‘privacy’? This will avoid potential confusion: instead of going through the Coco v AN Clark test, you use a test developed specifically for privacy conditions, not one which is trying to do too many jobs at once and only succeeding in being vague.

If the requirement for a relationship of confidence is removed, confidentiality and privacy certainly start to look much more alike than they do otherwise. Some British authorities now view the difference between confidentiality and privacy as purely academic.^[21] Randerson J, too, adopts this language. It seems strange, though, that while deciding a separate privacy tort is unwise, he nonetheless adopts the test from the ‘new confidentiality’ law which looks at exactly the same sorts of questions.

To date, extensions of confidentiality have been unnecessary in New Zealand precisely because New Zealanders have had access to a separate tort of invasion of privacy. While little used, and still subject to occasional challenge, since P v D granted a permanent injunction on the grounds of privacy alone there has been little doubt that the tort exists.^[22] It has developed some shape, and, while it could use some work, particularly as regards the proper balance between privacy and freedom of expression, it does have a large measure of coherence.

The United Kingdom, however, has seemingly been unable to draw on a privacy tort since its Court of Appeal closed the door on that tort in Kaye v Robertson.^[23] Faced with the requirement that the law comply with the European Convention, art 8 of which protects private life, the courts have had to be more inventive than might have been their preference. Confidentiality has been the prop on which they have had to lean. To adequately protect privacy interests, as they recognise is essential, a relationship of confidence cannot be strictly required. Consequently, one ends up with a vague rule that, as long as the material is sufficiently confidential or private in nature, an obligation is more or less presumed.

When asking whether New Zealand should go the same way, however, it is worth noting that there is considerable disquiet among some UK judges and commentators with the developments there. They view breach of confidence as different from privacy, that it should stay different from privacy and cannot adequately protect privacy.^[24] Among the judiciary, Sedley LJ is probably the foremost advocate for a separate privacy tort. In Douglas v Hello! he clearly stated the view that a relationship of confidence should still be required to give rise to an obligation of confidence. Where that relationship is missing, privacy should be protected in its own name.^[25] Failure to do so would lead to unacceptable gaps in privacy law: there will be some situations which confidentiality can never really cover.

That difference between privacy and confidentiality, even in new millennium Britain, is clearly illustrated by the recent cases of Wainwright^[26] and Peck.^[27] Wainwright is a pre-Human Rights Act case involving an improper and highly humiliating strip search of two prison visitors. The Court of Appeal rightly said that this was not a situation involving breach of confidence (since there was no disclosure of any information) and finding a breach of privacy was not an option open to the Court since there was no general right to privacy before the Human Rights Act 1998 came into force. Although the actual Wainwright situation might be dealt with under s 21 of the New Zealand Bill of Rights Act 1990, it is not hard to envisage other intrusion type situations which would not be covered, for example because they involve private parties not public authorities.

Peck is another example of how breach of confidence will fail some privacy plaintiffs. Crime prevention cameras on a street filmed Mr Peck with a knife in his hand, after he had attempted suicide. The footage was released and was used in television programmes and elsewhere in the media, though the context of the attempted suicide was not mentioned. The pictures therefore showed an armed man in a public place. Mr Peck was recognisable from the photographs. Despite the fact that the revelations took Mr Peck completely out of context, when he was highly vulnerable, and his situation was made public in a traumatic manner, British law did not provide protection for him. One might possibly (though with difficulty) describe his situation as involving private acts or, more obviously, that the disclosure breached his reasonable expectations of privacy in the circumstances, but it could not amount to a breach of confidence because the actions occurred in public. The footage was certainly wrongfully revealed, which leads to comparisons with Hellewell. But still it falls short of confidentiality as such. The Strasbourg Court therefore decided that Mr Peck’s rights were imperfectly protected in UK law as required by art 8.

Failure to acknowledge privacy interests means that, if the courts are faced with cases such as Wainwright or Peck, they either have to perform incredible contortions with confidentiality law to make the facts fit, or deny the plaintiff a common law remedy altogether. Photography cases are particularly susceptible to falling outside confidentiality law: they may be highly intrusive without revealing any information, let alone any ‘confidential’ information about the person (a point which Lord Phillips noted with concern in the Naomi Campbell case).^[28] Privacy law, however, makes sense of these situations, as it talks very naturally in terms of intrusive behaviour.

Highly ironically, as a result of these two cases, further attention will almost certainly be given to a separate tort of privacy in the United Kingdom, at least to cover issues of solitude. Photography in public places forms part of that calculation. So while Randerson J carefully dismissed the Hoskings’ claim ‘since the law in New Zealand does not recognise a tortious cause of action in privacy based on the publication of photographs taken in a public place’, English law may well develop quite differently at least where the plaintiffs are in a particularly vulnerable position. In particular, the Press Complaints Commission privacy code in England is required to be taken into account under s 12(4) of the Human Rights Act. So children, including celebrity children, will almost certainly receive special protection in Britain because they do under the code — whether or not their parents drew attention to them before their birth, as long as they, like the Hoskings, have very deliberately kept the children themselves out of the public eye since. Yet the effect of the Hosking decision here is quite otherwise.

Conclusion

If privacy is the issue, the action to protect it needs to be developed with a clear view about what the courts are wanting to achieve, and what the reasonable limitations on such a cause of action are. In particular, the courts need to decide how privacy fits alongside the requirements of the Bill of Rights. This is best done directly. There is nothing which makes that exercise easier if one labels the action ‘breach of confidence’.

Considerations of balancing the public interest in freedom of expression with the public interest in protecting confidential information are admittedly more developed in that field than the equivalent balancing act in privacy law. This does not mean that one has to reformulate the cause of action altogether, though, or that English style, non-relationship based breach of confidence would necessarily have a lesser impact on freedom of expression here than privacy does. Instead, the focus should be on learning from breach of confidence, particularly by looking at the English courts which have been statutorily forced to tackle the issue as a result of the equal status of arts 8 and 10 of the European Convention. Equally, much can be learned from other areas of the law where similar balancing has to be achieved — from the trespass based case of Lenah, to defamation of political figures. But that is no reason to re-label a cause of action. As it happens, it could cause confusion. And if I am wrong, and privacy and confidentiality are effectively different ways of pronouncing the same legal idea, then swapping one for another is effectively pointless. So why not keep the spanner in the toolbox? l

Katrine Evans, Senior Lecturer in Law, Victoria University of Wellington.

Endnotes

[1]. Hosking v Runting (30 May 2003) High Court Auckland Registry, CP 527/02, Randerson J at [178].

[2]. They had been photographed for an Anne Geddes book at five months old, but were only named by first name and were not otherwise identifiable.

[3]. Tucker v News Media Ownership unreported Court of Appeal, CA 172/86 (23 October 1986).

[4]. Hosking [34]–[44]; 115–118.

[5]. Hosking [184].

[6]. Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203, 215 (CA); Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47; Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 at 282.

[7]. Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47.

[8]. This comes from the influential dictum in Hellewell v Chief Constable of Derbyshire [ 1995] 1 WLR 804 at 807 where the judge famously said that surreptitious (particularly long lens) photography of people engaged in private acts would be a breach of confidence. ‘Private acts’ is not defined, but most obviously would extend to some sort of sensitive behaviour. It does appear to include presence at a treatment facility, however, even if the person was not behaving in an embarrassing way: Earl Spencer v United Kingdom (1998) 25 EHRR CS 105.

[9]. Daily Times Democrat v Graham (1964) 162 So 2d 474.

[10]. Stephens v Avery [1988] 2 All ER 477; Barrymore v News Group Newspapers [1997] FSR 600; A v B and C [2002] EWCA Civ 337 (11 March 2002); Theakston v MGN Ltd [2002] EWHC 137 (QB).

[11]. This was the factor which prevented the High Court of Australia from considering that the possum- killing activities at Lenah’s plant were confidential: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1.

[12]. This example is perhaps best demonstrated by the case of X (a woman formerly known as Mary Bell) and Y v Stephen O’Brien and News Group Newspapers Ltd and MGN Ltd [2003] EWHC 1101 (QB) (21 May 2003). X came out just before Hosking.

[13]. This is a direct contrast to the Douglas wedding photographs which were surreptitious pictures taken at a private (though large) wedding where photography was expressly prohibited: Douglas v Hello! Ltd [2000] EWCA Civ 353; [2001] QB 967.

[14]. See for example Attorney-General for the United Kingdom v Wellington Newspapers Ltd [1988] 129 (CA). This was definitely the test applied in P v D [2000] 2 NZLR 591 at 596 [16].

[15]. P v D [2000] 2 NZLR 591 at 596.

[16]. David Lindsay ‘Playing Possum? Privacy, Freedom of Speech and the Media Following ABC v Lenah Game Meats Pty Ltd, Part II’ (2002) 7(3) MALR 161 at 174–178.

[17]. Ruth Gavison ‘Privacy and the Limits of Law’ (1980) 89 Yale LJ 421.

[18]. Lindsay above note 16.

[19]. (2001) 185 ALR 1.

[20]. See in particular A v B and C [2002] EWCA Civ 337 (11 March 2002), and Campbell v MGN Ltd [2002] EWCA Civ 1373 (14 October 2002).

[21]. For example, Keene LJ in Douglas v Hello Ltd! Lord Woolf also appeared to be of a similar view in A v B and C.

[22]. Overseas commentators are certainly of this view: see for example Media Matrix and Information Group Privacy and the Media: The Developing Law Matrix Chambers, London, 2002 p 13.

[23]. [1991] FSR 62.

[24]. For academic comment, see for example Matrix Media and Information Group above note 22 at pp 7–10.

[25]. Douglas at 1001.

[26]. Wainwright v Home Office [2001] EWCA Civ 2081 (20 December 2001).

[27]. Peck v United Kingdom (Application no 44647/98, 28 January 2003).

[28]. Campbell v MGN Ltd [2002] EWCA Civ 1373 (14 October 2002).