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Evans, Katrine --- "Hosking v Runting balancing rights in a privacy tort" [2004] PrivLawPRpr 28; (2004) 11(2) Privacy Law and Policy Reporter 34


Hosking v Runting balancing rights in a privacy tort

Katrine Evans

The recent judgment of Hosking v Runting in the New Zealand Court of Appeal[1] has achieved some important milestones for privacy protection in New Zealand, and has provided an interesting precedent for overseas jurisdictions to contemplate.[2] It has established – at a high judicial level – that a separate tort of invasion of privacy does indeed form part of the landscape of the common law on this side of the Ditch and has given some indications about what that tort looks like. So far so good. Uncontroversially, though perhaps less palatably, in finding against the plaintiffs on the substance of their case, it has added another decision to the considerable body of existing precedent which states that innocuous photographs of people in public places will not attract the protection of the common law. The Court refused to seriously contemplate that photography of children might require different rules from those which come within the main test for breach of privacy.[3] Thirdly, the Court, much more controversially, indicated that in New Zealand damages will be the primary remedy for an invasion of privacy and that injunctions will only very rarely be available.[4] The test for whether an injunction will be granted for a breach of privacy has therefore been brought into line with the test for injunctions in defamation law.[5]

The reasoning behind this latter conclusion was predominantly because the Court believed this was the best way to achieve a proper balance between the needs of freedom of expression (as included in the New Zealand Bill of Rights Act 1990 [NZBORA], section 14) and personal privacy (which is not directly recognised under the NZBORA, but can be seen under section 5 as a necessary limitation on freedom of expression). This higher policy concern, about the full implications on freedom of expression of having formal privacy protection at common law, has taxed courts across several jurisdictions over the past few years – particularly where the common law receives little guidance from the legislature about how that balance is to be struck, as is the case in New Zealand and Australia. In New Zealand despite the majority ruling in favour of a privacy tort I suggest that there is still a living and influential division between approaches to these questions; a gulf which the Hosking decision illustrates clearly with the split between the minority and majority judgments. This brief article discusses and analyses that variance in approach and compares it with recent jurisprudence elsewhere.

The facts

Michael Hosking is a well known presenter on New Zealand television and radio. He and his wife Marie separated in late 2002, and a women’s magazine, New Idea, ran a brief article previewing the couple’s first Christmas apart (without involvement from the Hoskings). To illustrate the article, the magazine used file photographs of Mike and Marie, but also wanted to print photographs of their twin eighteen-month old daughters, Ruby and Bella. Since their parents had not put the girls in the public eye since their birth, there were no photos available, so New Idea commissioned a freelance photographer, Simon Runting, to acquire pictures of the twins. He managed to do so, snapping pictures of the children in their pushchair while they were out shopping in central Auckland with their mother. Marie Hosking was unaware that the pictures had been taken until she was later notified by the magazine, prior to publication. She and her husband objected strongly to the proposed publication and applied for injunctive relief against the magazine. Randerson J refused the injunction at first instance, and the Hoskings appealed.

The findings of the Court of Appeal

The Court of Appeal agreed unanimously that no injunction should be granted in these circumstances. The majority confirmed the existence of a privacy tort in New Zealand dealing with wrongful publication of private facts, and went some way to defining the ambit of that tort. Gault P and Blanchard J stated:[6]

The scope of a cause, or causes, of action protecting privacy should be left to incremental development by future courts. ... In this jurisdiction it can be said that there are two fundamental requirements for a successful claim for interference with privacy:

The existence of facts in respect of which there is a reasonable expectation of privacy; and

Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.

However, their Honours stated that the plaintiffs failed to meet the burden of demonstrating that the children had reasonable expectations of privacy, and that publication would be highly (or significantly[7] ) offensive to an objective reasonable person.[8] In addition, all members of the Court agreed that damages rather than an injunction was the primary remedy for a breach of privacy, so even had the plaintiffs been able to meet the threshold they may well have failed to get the remedy they wanted.[9] The minority, however, took the view that the plaintiffs’ case could not get off the ground at all because there was no justification for having a privacy tort in New Zealand.

The reasoning in Keith J’s dissent, with which Anderson J agreed,[10] focused on several key arguments. First, he considered that, in New Zealand, there is already an adequate range of responses to privacy, which “may also provide an available basis for relief in the very situations in which the lack of a right of privacy is lamented by the Judges or commentators...”[11] Secondly, a general privacy tort has a very limited value and this falls short of demonstrating a “pressing need” as required by section 5 of the Bill of Rights in order to limit the highly important right to freedom of expression in section 14.[12] Thirdly, Parliament has refused to act despite calls to do so, both here and elsewhere in the Commonwealth,[13] and, indeed, has “dealt distinctly with the print media, essentially by leaving it outside the steps it has taken to protect privacy interests.”[14] Those steps include the news activities exemption from the Privacy Act 1993, and the separate regulation of broadcasters through the Broadcasting Act 1989, including the requirement to protect privacy. His Honour also drew attention to the considerable array of matters in which “privacy” can be said to be involved,[15] and referred to Professor Geoffrey Palmer’s 1975 article “Privacy and the Law”[16] as helpfully identifying “the many layers of ambiguity and uncertainty surrounding the idea of privacy.”[17] The focus of this article is on the second point, but it is worth briefly mentioning the others, since they too are commonly raised in other jurisdictions as barriers to development of a nominate privacy tort.

Alternative means of protecting privacy

On the first, it is clear from the authorities that privacy can often be protected by other means well established in common law, such as trespass to land, defamation and standard breach of confidence, although there are acknowledged gaps.[18] In addition, it is true that the New Zealand law already extends to cover many of the situations raised in the United Kingdom by commentators as illustrating the need for a separate tort. The clearest example of this is the case of Wainwright (the strip search of a prison visitor in a manner which was unreasonably humiliating[19] ): this would be able to be dealt with under section 21 of the New Zealand Bill of Rights Act (the search and seizure clause). However, where privacy is protected other than under its own name, a risk exists that the established causes of action will be stretched beyond bounds that they were meant to occupy since privacy protection was not the guiding principle behind their development. As a concomitant of that, if privacy does not receive nominate recognition, both privacy and competing values may be less well protected than if calculations about the appropriate scope of privacy protection are made under a separate tort. It is therefore undesirable to extend the existing law to meet situations for which it was not designed. The Court recognised this in the case itself, with all the judges accepting that breach of confidence should not, in New Zealand, be extended in the way which has occurred in the United Kingdom, as confidentiality and privacy essentially deal with two different matters.[20]

Implications from Parliamentary inaction

Parliamentary failure to act, Keith J’s third point, does not create a particularly strong argument in New Zealand against the development of a privacy tort. We do not have the history of Parliamentary commissions enquiring into the matter that the United Kingdom does, for example.[21] There is not space here to relate the history behind the news activities exemption in the Privacy Act, for example. However it is important to note that while Parliament was reluctant to subject the media (absent evidence of increasingly bad behaviour) to the privacy principles – for practical as well as freedom of expression reasons[22] – the tort had already been mentioned in the common law courts (in 1986 in the Tucker case[23] ) and Parliament gave no indications that tort development should not continue. The same is true regarding the passing of the Broadcasting Act in 1990, under which the Broadcasting Standards Authority has developed its privacy principles.[24] When the Act was amended in 2000, there was no indication that these principles represented the sole word on regulating broadcasters in New Zealand and that common law development was inadvisable. Given Parliamentary silence on the issue, legislative inaction can therefore equally be seen in New Zealand as an invitation to continue with the case-by-case development of privacy protection.[25]

Difficulties of definition

On the final point, difficulties of defining privacy, with respect there has been much theoretical writing indicating both the problems and possible solutions since Sir Geoffrey’s article in 1975. Not all the writing is pessimistic about the ability of the law to cope with what is undoubtedly, in ordinary language, a rather problematic term. Keith J considers the influential, well articulated and highly pessimistic views of Harry Kalven (1966) and Diane Zimmermann (1983) but does not, for example, consider the at least equally well articulated and influential views of Raymond Wacks (who notes the problems, but develops a clear solution with a focus on personal, sensitive information),[26] Ruth Gavison (who developed perhaps the clearest definition of privacy as a state of inaccessibility, in 1980),[27] and Basil Markesinis with his useful comparative analyses of British and German law on the subject.[28] And the majority judges in the case, while acknowledging the difficulty of definition with a more ‘general tort’ justifiably see little difficulty with definition when the scope of common law protection is limited to unwarranted disclosure of private facts.[29]

Approaches to balancing privacy and freedom of expression

In support of Keith J’s views, Anderson J stated that the emergence of the tort had “gained impetus from semantic imprecision and questionable analysis of the relationship between rights and values.”[30] In the next paragraph he went on to describe privacy as a “human value” because a desire to be able to exercise choice in interaction is a “fundamental human aspiration.” In contrast, freedom of expression as recognised in section 14 of the New Zealand Bill of Rights Act is clearly a “right”. This categorization of course manifestly impacted on how Anderson J perceived any balancing exercise:[31]

An analysis which treats that value [privacy] as if it were a right and the s14 NZBORA right [freedom of expression] as if it were a value, or treats both as if they were only values when one is more than that is, I think, erroneous.

Keith J himself took a different approach, although the underlying assumptions are, I suggest the same, in that if he perceived privacy as being a right of equal value to freedom of expression, his analysis would be very different. Like the majority, he categorised privacy as a possible limitation on freedom of expression under section 5 of the NZBORA; unlike them, and based on the other points raised above, he argued that there was no demonstrable necessity for privacy protection via tort at all and therefore no justification for limiting the right to freedom of expression through this mechanism.[32]

While the majority judges also frequently used “value” terminology (including in relation to freedom of expression itself the indications were that they at least recognised privacy’s place in the international human rights documents[33] and as a matter of fundamental social good.[34] They were therefore more able to give privacy significant weight under the section 5 analysis and, at least in situations where there was no very strong legitimate public concern in publishing the private facts at hand, they were prepared to acknowledge that privacy could offset freedom of expression. It seems unlikely, however, given the prominence of the place that Keith J gives to freedom of expression, that he would ever find that that was the case. Section 14, for him, may always act as a ‘trump card’ when it comes to a competition with privacy protection:

[178] The right to freedom of expression is recognised in our law ... as in the law of many other parts of the world, as being of the highest importance in a modern democracy. The purposes and values underlying it are also widely accepted. ... [222] ... the proposed tort would place a generally stated limit on the centrally important right to freedom of expression...

Anderson J makes the point even more strongly:

[267] ... Freedom of expression is the first and last trench in the protection of liberty. All of the rights affirmed by NZBORA are protected by that particular right. Just as truth is the first casualty of war, so suppression of truth is the first objective of the despot. In my view, the development of modern communications media, including for example the world wide web, has given historically unprecedented exposure of and accountability for injustices, undemocratic practices and the despoliation of human rights. A new limitation on freedom of expression requires, in my respectful view, greater justification than that a reasonable person would be wounded in their feelings by the publication of true information of a personal nature which does not have the quality of legally recognised confidentiality.

It is clear, therefore, that the minority judges give little credence to the claim that privacy is itself a fundamental human right, which also serves to protect the other rights in the NZBORA – including freedom of expression itself, which one cannot exercise if privacy is denied. And they certainly do not go so far as to acknowledge that privacy is an equal right with freedom of expression. Admittedly, the context of the NZBORA makes this more difficult, since privacy is not included as a right, having been specifically discarded at the White Paper stage as being too undeveloped to be included in what was, at that stage, to be supreme law in New Zealand.[35] However, given New Zealand’s adoption of the International Covenant on Civil and Political Rights, and the very considerable developments – legislative and otherwise – in protecting privacy over the last thirty years, as well as some very strong statements emerging from other common law jurisdictions, it is becoming less and less tenable, I suggest, to take that position, however strongly one favours freedom of expression.

Compare the approach of Tipping J at paragraph 231:

It is not ... enough for those who are asked to accept some limit on freedom of expression simply to rely on s14 of the Bill of Rights as if it were some universial social panacea which must be seen as trumping other rights and values in most, if not all circumstances. Society cannot be expected to vest unrestrained or insufficiently restrained power in the news media and others under the banner of freedom of expression. ... It would not be in society’s interests to allow freedom of expression to become a licence irresponsibly to ignore or discount other rights and values.

He acknowledged the need for latitude for publishers, and the statutory requirement that any limitation on section 14 be reasonable, demonstrably justified and prescribed by law.[36] But he also was firm on the importance of privacy:[37]

It is of the essence of the dignity and personal autonomy and well-being of all human beings that some aspects of their lives should be able to remain private if they so wish ... Quite apart from moral or ethical issues, one pragmatic reason is that unfair and unnecessary public disclosure of private facts can well affect the physical and mental health and wellbeing of those concerned.

Rights of equal value

The approach of the minority judges is certainly very different from that taken in the United Kingdom. There, it is clearly accepted that privacy and freedom of expression are both rights, and have equal weight. As Lord Nicholls said in Campbell:[38]

This case involves the familiar competition between freedom of expression and respect for an individual’s privacy. Both are vitally important rights. Neither has precedence over the other. The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it, too, lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well-being and development of an individual. And restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state: see La Forest J in R v Dymont [1988] 2 SCR 417, 426.

Lord Hoffmann’s comments were similar:

[50] What human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity. ... [55] [F]reedom of the press and the common law right of the individual to protect personal information [b]oth reflect important civilised values, but, as often happens, neither can be given effect in full measure without restricting the other. How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need.

The majority judges in Hosking were certainly feeling towards a similar conclusion, but arguably needed to articulate rather more clearly the weight to be given to privacy. The minority judges, however, both used freedom of expression as a starting point with a presumption of superiority. They ousted the need for privacy protection in common law altogether, not just denying privacy protection on the facts of the individual case if protection would be disproportionate to the needs of freedom of expression, as Lord Hoffmann suggests is appropriate. However, it would be wrong to suggest that the view of the Hosking minority is particularly unusual: indeed, the United States law on disclosure of private information takes a similar stand in the light of the First Amendment,[39] and even the English Court of Appeal, under Lord Woolf, has made statements which can be construed in that light also.[40]

The English courts, of course, are clearly influenced in their development of the common law by the wording of Articles 8 (private life) and 10 (freedom of expression) of the European Convention on Human Rights, as incorporated into the Human Rights Act 1998 (UK). It is unsurprising, therefore, that they should categorise privacy as a right of equal value – to do less would appear to contradict direct Parliamentary intention. As Lord Hope pointed out in Campbell:

[86] The language has changed following the coming into operation of the Human Rights Act 1998 ... We now talk about the right to respect for private life and the countervailing right to freedom of expression

But his view, contrary to that of Lord Hoffmann – who had described the change as a “shift in the center of gravity”[41] – was that this did not represent a major alteration in the courts’ approach:[42]

It seems to me that the balancing exercise to whch that guidance is directed is essentially the same exercise, although it is plainly now more carefully focused and more penetrating.

Deciding whether Lord Hoffmann’s “shift” or Lord Hope’s “same exercise” is more correct is important and may be of assistance in developing the law in Australia or New Zealand. Neither nation has specific constitutional recognition of privacy as a human right, but we have both been, and will in future be faced with issues about how best to recognise demands of privacy and freedom of expression. If we construe the British precedents as limited to the fact that they have statutory direction on the equal status of those concepts in law, then our courts too may feel free to ignore the growing claims for recognition of privacy interests in their own right. In New Zealand, privacy advocates at least have the support of a majority Court of Appeal for the existence of a separate tort, but that tort could yet be deprived of any real substance by a failure to recognise that privacy has an equal value with freedom of expression. Instead, we should realise that courts in other jurisdictions, most notably in Germany and in Britain, are able to recognise privacy for what it is – a fundamental human right – without undermining the equal fundamental right of freedom of expression. As Lord Hoffmann said:[43]

[T]here is often no real conflict... Do the civil and political values which underlie press freedom make it necessary to deny the citizen the right to protect ... personal information? Not at all. While there is no contrary public interest recognized and protected by the law, the press is free to publish anything it likes. Subject to the law of defamation, it doe not matter how trivial, spiteful or offensive the publication may be. But when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right. ...

It is possible to go a little further. If the value of both rights is fully acknowledged, the implications of inroads can be fully appreciated, and the proportionality calculation is likely to fall more or less into place. There is still, therefore, no real ‘conflict’ in the sense that one right should win and the other should lose. The aim is to recognise both to the maximum in any given situation.

KatrineEvans

Katrine.Evans@vuw.ac.nz is a Senior Lecturer in Law at Victoria University, Wellington


[1] Hosking v Runting and Pacific Magazines NZ Ltd [2004] CA 101-03.

[2] See for example the decision of the House of Lords in Campbell v MGN [2004] UKHL 22, where some of their Lordships mentioned the newly decided Hosking case, though not in great amounts of detail: Lord Hope at para 122, Lady Hale at para 154.

[3] See my criticism of this in [2004] NZLJ: “Was Privacy the Winner on the Day?”

[4] Hosking: Gault P and Blanchard J at paras 151-158; Keith J at para 220.

[5] See for example the statements of the Court of Appeal in TV3 Network Services Ltd v Fahey [1998] 2 NZLR 129. The leading case in New Zealand is Auckland Area Health Board v Television New Zealand Ltd [1992] 3 NZLR 406, 407 (CA).

[6] Hosking¸ para 117.

[7] Hosking, para 256, Tipping J. He argued that a ‘substantial’ rather than a ‘high’ level of offence captured the essence of the matter but was a little more flexible.

[8] Note the criticism of the phrase “highly offensive” in Lord Nicholls’ judgment in Campbell at para 22. He considers that the Lenah Game Meats approach could be “a recipe for confusion.” It is not completely clear from the Hosking judgments whether the objective standard is based on a simple calculation of a community norm, or whether the true test is that of the reasonable person in the shoes of the plaintiff: compare Lord Hope’s commendation in Campbell para 100 of Nicholson J’s P v D test ([2000] 2 NZLR 591, at para 39) stating that the test is “what a reasonable person of ordinary sensibilities would feel if they were in the same position, that is, in the context of the particular circumstances.”

[9] Hosking, Gault P and Blanchard J at para 158; Keith J at para 220; Tipping J at para 258; Anderson J at para 270.

[10] Hosking at para 262.

[11] Hosking, at para 218.

[12] Hosking, paras 219-220. This was the point which Anderson J stressed most in his supporting judgment.

[13] Hosking, paras 204, 221

[14] Hosking, para 218.

[15] Hosking, para 185

[16] [1975] NZLJ 747.

[17] Hosking, para 181.

[18] See Hosking, Gault P and Blanchard J at para 109.

[19] Wainwright v Home Office [2003] UKHL 53.

[20] Gault P and Blanchard J at para 48; Keith J at para 201; Tipping J at 246.

[21] See for example, the Younger Committee, the Calcutt Committee and the subsequent Review, and the considerations of the National Heritage Committee, none of which resulted in any action by Parliament to regulate privacy breaches by the media by creating a statutory tort or otherwise.

[22] See for example the speech of Hamish Hancock MP, reporting back for the Justice and Law Reform Select Committee on the Privacy of Information Bill, 533 NZLD 14131.

[23] Tucker v News Media Ownership Ltd [1986] 2 NZLR 716.

[24] These can be found online at http://www.bsa.govt.nz.

[25] The judgment of Gault P and Blanchard J mentions other facets of the legislative landscape, but does not discuss them in detail: see paras 91-107. Their Honours do categorise the legislative protection thus far, however, as “of specific focus and limited. It clearly recognises the privacy value and entitlement to protection. But it cannot be regarded as comprehensive so as to preclude common law remedies.” (para 108. Tipping J is also forthright on the ability of the common law to act unless Parliament clearly states that an enactment is a codification: para 227-228.

[26] Raymond Wacks Personal Information: Privacy and the Law (Clarendon Press, Oxford, 1989).

[27] Ruth Gavison “Privacy and the Limits of Law” (1980) 89 Yale LJ 421.

[28] Basil Markesinis and Hannes Unberath The German Law of Torts: A Comparative Treatise (4th ed, Hart Publishing, Oxford, 2002).

[29] See Hosking at para 118. They acknowledge that there could be scope to extend the tort to cover intrusion, for example, but that it is not necessary to decide the matter in the context of the case.

[30] Hosking, para 263.

[31] Hosking, at para 265.

[32] At para 216, he described the United States tort as a “ridiculous mouse born of ... mountainous labour.”

[33] See Gault P and Blanchard J at para 6; and Tipping J at para 224

[34] See particularly Tipping J at para 239 quoted below.

[35] A Bill of Rights for New Zealand: A White Paper A6.

[36] Hosking, para 232

[37] Hosking, para 239

[38] Campbell v MGN Ltd [2004] UKHL 22, para 12, Lord Nicholls.

[39] See, most famously, Florida Star v BJF [1989] USSC 123; 491 US 524 (1989)

[40] A v B plc [2002] 2 All ER 545.

[41] Campbell, para 51.

[42] Campbell, para 86.

[43] Campbell, para 56


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