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University of Otago Law Theses and Dissertations |
Last Updated: 17 September 2023
INTIMATE WITH THE INTERNET: DOES NEW ZEALAND’S LAW PROVIDE ADEQUATE PROTECTION IN CASES OF NON-‐CONSENSUAL PORNOGRAPHY?
AMBER HOSKING
A dissertation submitted in (partial) fulfillment of the degree of Bachelor of Laws (with Honours) at the University of Otago.
October 2015
ACKNOWLEDGEMENTS
I would like to thank Colin Gavaghan for his encouraging words and showing interest in my topic. LAWS483: Law and Emerging Technologies got me hooked on the digital context, how we interact and regulate people in cyberspace.
I would like to thank Paul Roth for introducing me to the intricacies of data protection and the “truck-sized” gaps left by the law. Combining my two interests into a dissertation topic has made this experience even more enjoyable.
I would like to thank my family for their support and love. When I grow up, I hope to be just like my mother.
Thanks to Matthew Mortimer, my mentor, mooting-partner and friend. You have helped me become a better law student and produce a dissertation with fewer errors.
Thanks to my friends, old and new. This year I’ve made not just one friend-for-life, but a few. Special mention to is required of the four other members of the Famous Five: Harriet, Brylee, Alicia and Dustin. Without you LAWS200 would not have been such an adventure.
Finally, thank you to the Hosking family (of no relation) for spurring on the development of the tort that I am so fond of.
A different concern, though, is that the uncensored and often extreme character of internet publication may over time affect the public perception of what is acceptable, and that that perception may permeate into the mainstream media. Community standards change over time, and the internet, unless it can somehow be kept in check, has the potential to change them for the worse.
- Law Commission1
PART 4: ADEQUATE PROTECTION FOR NON-CONSENSUAL
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48
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1. DO THE EXISTING REMEDIES PROTECT THE PRIVACY INTEREST?
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48
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2. SHOULD THE CIVIL OR CRIMINAL LAW RESPOND TO ACTS OF
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NON-CONSENSUAL
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PORNOGRAPHY?
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52
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3. UPDATING PRIVACY LAW CONCEPTS FOR BETTER PROTECTION
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55
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A. PUBLIC/PRIVATE DISTINCTION
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56
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B. CONSENT
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58
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4. RECOMMENDATION
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60
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CONCLUSION
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67
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BIBLIOGRAPHY
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68
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INTRODUCTION
Rapidly advancing technology has changed our social practices and expectations surrounding the recording of digital information and the communication of information online. This has, in turn, had a profound effect upon our expectations of privacy. The legal responses to the technologies of the 20th Century are no longer sufficient because they are now based on old and outdated concepts of privacy.2 The grave harm caused by the practice of non-consensual pornography necessitates a legal response.
This dissertation aims to assess the adequacy of the New Zealand law’s response to the practice of non-consensual pornography. Part One outlines the context in which this assessment takes place. First, it is important to understand what is meant by “non-consensual pornography” and the harms it causes. Part One sets out four typical scenarios of recording and sharing intimate images that occur in non-consensual pornography cases. These scenarios form the basis for the assessment of whether the existing legal responses are adequate. The digital context must also be considered for its impact on the occurrence and harms of non-consensual pornography.
Non-consensual pornography cases involve the interference with individuals’ privacy interests. Part Two seeks to identify the value of privacy that the law protects. It begins by considering several theories of privacy, then considers how the privacy value, and harm from interference with privacy, are recognised in New Zealand law.
Part Three analyses the current legal responses to non-consensual pornography ranging from Copyright to the new criminal offence in the Harmful Digital Communications Act 2015.3 It sets out key civil actions and criminal offences that are often employed to regulate the collection and publication of information and
considers whether these responses would cover the range of archetypal non- consensual pornography scenarios.
Part Four then assesses whether the existing laws are an appropriate response to non- consensual pornography. This analysis shows to what degree the current laws are directed at protecting the privacy interest that is interfered with in scenarios of non- consensual pornography. Part Four discusses how concepts of privacy need to be updated in the digital context to provide better protection. It concludes with the recommendation that the covert filming offence and breach of privacy tort be extended so that the law can adequately respond to non-consensual pornography.
A generalised approach to privacy would require the impossible task of providing a universally applicable definition to “private information”.4 Even the discussion of “privacy” as a general right is detrimental to the evolution of privacy law. Attempts to develop privacy law without defining the specific context are stifled on the basis that general protections of privacy unacceptably restrict competing rights. In the context of non-consensual pornography there is very little legitimate public concern in publication and the competing interest of freedom of expression is very low, therefore it is appropriate for privacy protections to develop.
When it recognised the breach of privacy tort, the majority of the Court of Appeal expressly stated that it was not establishing a general cause of action for all conduct that could be considered an invasion of privacy.5 A piecemeal approach to privacy is appropriate as it allows for the weighing the competing factors at play in specific contexts.6
Privacy law is needed to address interferences with privacy values causing harm to victims in certain contexts.7 A legal response to non-consensual pornography must protect the individual’s right to control information about themselves in the context of recording and sharing intimate images. The usurpation of control over the extent and context of recording and disclosing an individual’s intimate images causes serious emotional harm.8
PART ONE: NON-CONSENSUAL PORNOGRAPHY
The term non-consensual pornography describes the harmful practice of recording and sharing “intimate images” without consent. Most often it involves the publication of women’s naked images to social media sites. 9 Victims of non-consensual pornography are left feeling humiliated, distressed and, in extreme cases, afraid for their physical safety. 10 Non-consensual pornography can destroy significant relationships and has resulted in victims losing their jobs.11 In recognition of the harm that is caused, it is important to understand the application of law to the now common practice of recording and publishing images of other people without consent.12
The naked and intimate self is closely connected to human dignity; the non- consensual interference with a person’s dignity causes severe, and sometimes debilitating humiliation and loss of self-esteem.13 The humiliation and emotional distress caused by the distribution of an intimate image is inflated by the ability to infinitely copy, edit and share digital images online.14 This harm continues with each non-consensual publication of intimate images, regardless of the consent to record or possess the image in the first place. The instances of harm from non-consensual pornography are multiplied by the ease of access to cameras, the connectivity of social media and the commercialisation of non-consensual pornography websites creating demand for such images.15
for their association with pornography and threatened with rape or assault, see Danielle Keats Citron “Opinion: Make ‘revenge porn’ a crime in US” (16 January 2014) CNN.com http://edition.cnn.com/2013/08/29/opinion/citron-revenge-porn/index.html.
Non-consensual pornography has arisen from our recently developed ability to record digital images and publish them on the internet. Both technology and the law play a crucial role in preventing this anti-social behaviour. 16 Archetypal cases of non- consensual pornography include the following scenarios:17
For the purpose of assessing the application of the law to cases of non-consensual pornography, “intimate images” has been given the follow meaning: “Image” includes all digital representations of a person, whether in a photograph or video. Whether images are “intimate” is considered on a case-by-case basis with regard to the social and cultural context in which they appear. The test may be expressed as “whether the individual has a reasonable expectation in exercising control over the disclosure of
<http://www.nytimes.com/2013/09/24/us/victims-push-laws-to-end-online-revenge-
posts.html?pagewanted=all&_r=1>; Citron and Franks, above n 1, at 345, 346.).
<http://edition.cnn.com/2014/09/01/showbiz/jennifer-lawrence-photos/>.; In a New Zealand case of non- consensual pornography. An ex-boyfriend uploaded a photograph of his ex-girlfriend naked to her facebook page after they broke up. He was sentenced under s 124 of the Crimes Act for the Distribution or exhibition of indecent matter. The Dominion Post “Naked photo sends jilted lover to jail” (13 November 2010) Stuff.co.nz <http://www.stuff.co.nz/national/crime/4341191/Naked-photo-sends-jilted-lover-to-jail>.
<http://edition.cnn.com/2013/08/29/opinion/citron-revenge-porn/index.html>.
<https://privacy.org.nz/blog/sharing-images/>.
the image”.22 This test considers the individual’s desire to exercise control over the information and whether it is appropriate to protect such information from disclosure according to prevalent social standards.23
Individuals expect to control information related to certain aspects of the body and bodily functions. Social norms require that such information is concealed from the wider public to maintain an individual’s dignity and civility.24 A good reference point of current standards is the statutory definition of “intimate visual recording”:25
(i) ...the individual is—
(ii) an individual’s naked or undergarment-clad genitals, pubic area, buttocks, or female breasts which is made—
- (A) from beneath or under an individual’s clothing; or
(b) includes an intimate visual recording that is made and transmitted in real time without retention or storage in—
(i) a physical form; or(ii) an electronic form from which the recording is capable of being reproduced with or without the aid of any device or thing
However, in the area of privacy law a definition involving an exhaustive list of the specific images, which are currently “intimate images”, is inappropriately restrictive.
<http://www.stuff.co.nz/national/politics/4755272/MP-Nick-Smith-caught-out-in-his-togs>.
Privacy depends upon the social and cultural context in which it is being considered. Social norms and common practices are rapidly changing with the introduction of new technologies. The law must remain flexible enough to keep up with the rapid development of technology and changing privacy norms.26
In response to recent digital developments, the law protecting privacy must be reassessed to address new harmful practices.27 Alongside the greater connectivity and expression that comes with using the internet, is also the risk of supervision and exposure. Disclosing intimate images hampers individuals’ abilities to make decisions about their own lives and to act freely. The fear of being judged by others and developing bad reputations leads people to self-censor their behaviour even in private.28
I. The Digital Context
In the early 20th Century, Warren and Brandeis were concerned that the invention of the ‘snap camera’ and gossip magazines threatened to make public the details of their private lives.29 Now, much of our social and professional lives is conducted in the online environment, the exact parameters of which remain ill-defined:30
The internet has a number of notable characteristics that make it difficult to control, or to trace the flow of data within it. It has no borders – it is not physically located in any one state and can be accessed from anywhere. It is not centrally owned or controlled. It is
interactive and dynamic. As a result, the internet has given rise to new and difficult privacy issues.
Camera phones and the internet allow for the recording and sharing of images at any time, in any place.31 The ability to permanently capture and share information has never before been as widely accessible.32 On the internet, an image can be published in mere seconds. Once published, online images take on a permanent and persistent existence as they are copied, cached and continually represented out of context.33 This means that an impulsive decision to record and share an “intimate image” may impact on individuals for the rest of their life.34
Search engines and social media sites enable even those with limited technical knowledge to find and share people’s images, including those who, without choosing to be online themselves, have information about them uploaded by others.35 The internet plays a central role in our 21st Century lives. Associated with access to the internet is the ability to pursue our fundamental rights, such as the right to freedom of expression.36 We use the internet for education, trade and commerce, and keeping in touch with friends and family.
<https://privacy.org.nz/news-and-publications/statements-media-releases/harmful-digital-communications-
act-closes-privacy-act-loophole/>.
PART TWO: WHAT IS PRIVACY?
An analysis of the law must be based upon the proper conceptualisation of the subject matter.37 This part sets out several theories of privacy, which outline the interests that privacy law protects. It then examines how privacy has been recognised in New Zealand law, the values in need of protection and the harms that will warrant a legal response.
Theoretical discussions of privacy make it clear that “privacy” denotes several distinct values and interests. While theory cannot conclusively define what “privacy” is, it can guide the discussion of which values and interests the law should protect.38 Existing law recognises privacy as the individual’s ability to exercise of control over certain information about themself and the right to be let alone. The law protects these values to varying extents as it protects different kinds of information in specific contexts.
The information requiring legal protection in the case of non-consensual pornography is a person’s “intimate image”.39 The privacy value in controlling access to one’s intimate image is supported by the secrecy, intimacy and exposure theories. In accordance with existing social norms, individuals expect to conceal their intimate images from the wider public. The ordinary New Zealander restricts those who see them undress or engage in certain activities. That is, we change in dressing rooms, close our curtains and sleep in separate bedrooms from our parents because intimate images, as dictated by social norms, contain information about the individual that should be revealed to only a limited audience.
I. Theories of Privacy
The philosophical debate about the meaning of privacy is yet to produce a clear, generalized concept of privacy that encompasses all of the things we intuitively consider private. The New Zealand Law Commission accepted that, “any attempt to provide a comprehensive definition of privacy is doomed to failure”.40 Indeed, some commentators have expressed the view that privacy is so vague and elastic it defies definition and is an unsatisfactory term because it has “a protean capacity to be all things to all lawyers”.41 To support the value of privacy and the interests that privacy protects Part 2 discusses some of the most relevant theories.42 It is beyond the scope of this dissertation to review all of the theories conceptualising privacy.
1. Secrecy
Privacy in information is often recognised as protecting the concealment of secrets.43 Secrecy underlies the desire of individuals to conceal information about themself. We value the ability to control the selective disclosure of information about ourselves to protect our public image and reputation.44 The law protects this interest by providing redress where others have disclosed our secrets.45 The legal remedies of breach of confidence, the tort of intrusion into seclusion and the right to freedom from unauthorised search and surveillance all protect this interest.46
Privacy in secret information is limited to protecting total secrecy; in determining whether information is secret the court considers whether the information is public or
44 At 1106.
private.47 Information that is not previously hidden from public knowledge cannot be a secret and secrecy is lost when the information is disclosed: therefore there is no liability for further publication.48
Secrets are only one class of information that is intuitively considered private; some private information is secret, but not all secret information is private.49 The secrecy conception of privacy is criticised for being too narrow.50 It fails to protect privacy in information that is known by others and fails to recognise the interest individuals have in controlling the extent and circumstances of the disclosure of their information.51
2. Intimacy
Privacy is also expressed as a theory of intimacy. Intimacy is often connected with information about the human body, emotions and sexuality. Theories of intimacy, which focus on the formation of relationships and feelings between individuals, are criticised for being too narrow.52 Like secrets, intimate information is a sub-set of private facts and does not cover everything one would consider private. For example, financial records are private but would not be considered intimate information about an individual.53
Intimacy theory supports that access to certain information about individuals should be restricted.54 Privacy-as-intimacy theorist, Julie Innes, defined privacy as, “the state of the agent having control over decisions concerning matters that draw their
48 Solove, above n 24, at 497, 540–541.
49 Solove, above n 2, at 1108–1109. (“[S]ecrecy is certainly not coextensive with privacy; secret information is often not private (for example, secret military plans) and private matters are not always secret (for example, one’s debts).”)
50 At 1108.
51 At 1109.
meaning and value from the agent’s love, caring, or liking”.55 Innes argues, intimacy “is not static across time or culture”. Information is not inherently intimate but assumes a quality of intimacy arising from the context and the individual’s motives.56 When deciding what information can reasonably be regarded as intimate we should consider the kind of information people seek to restrict access to. Not every publication of nudity is an instance of non-consensual pornography. Such images are often the subject of art, films or the consensual pornography industry. By not consenting to publication, the image subject expresses their desire to restrict access to their intimate images.
3. Exposure
It is considered indecent to publish images of nudity, people defecating or people cleaning themselves, despite the fact that these matters are common to all humans.57 Daniel Solove explains that the objection to such publication stems from the exposure of physical and emotional attributes about a person that should be kept concealed in accordance with social norms.58
The ability to conceal distasteful aspects of one’s life is closely related to maintaining dignity.59 Exposure does not reveal new information, but causes the subject to be embarrassed and humiliated because it goes against social practice and expectations.60 The extent to which individuals must rely on privacy to prevent exposure changes according to accepted social practices across time and culture.61
58 At 536.
59 At 537.
60 At 537.
61 At 536, 537.
Public knowledge of information is often fatal to securing a remedy for wrongful publication.62 A legal response based on exposure would provide a remedy for the publication of certain information regardless of how publicly available it was. Exposure occurs everytime information, which should remain concealed from others in accordance with social norms, is published.63
4. Control
Privacy as “control over information” is the concept underlying data protection statutes such as the Privacy Act 1993.64 Alan Westin defines the control theory, as “the claim of individuals, groups or institutions to determine for themselves, when, how and to what extent information about them is communicated to others.”65
“The right to control information” presupposes that information is a commodity capable of being controlled. However, information is not a tangible object capable of possession to the exclusion of others. Nevertheless, the law regulates its collection, disclosure and use in some instances.66
The control theory is critiqued for being too vague and individually focused. Privacy is a product of living in societies. When deciding what information should be controlled, and protected by privacy, we must take into account wider social interests in sharing and having access to information.67 Courts balance competing interests in
62 At 534.
63 At 539.
the circumstances of the case using tests, such as “reasonable expectation of privacy” and “legitimate public concern”.68
Control is a means of protecting private information as opposed to a description of what information is private.69 Individuals exercise control over the dissemination of information by withholding consent for publication. The ability to control the release of information about oneself protects “the right to be let alone”. This privacy interest, recognised by Warren and Brandeis, supports respect for human dignity and autonomy.70 Legal protection of these values is essential to protect an individual’s creativity, self-development and social relationships.71
II. Privacy in New Zealand
Privacy interests have traditionally been protected as an ancilliary consequence in actions defending related interests in property and contract.72 The enactment of the New Zealand Bill of Rights Act 1990 and data protection legislation; the creation of criminal offences protecting privacy; along with the development of several privacy torts, illustrates that privacy is now expressly recognised as a value worthy of protection in New Zealand.73
Brooker v Police [2007] NZSC 30 at [153], [163], [212] per Thomas J.
1. Privacy Values
The New Zealand Bill of Rights Act 1990 does not protect a general right of privacy, but affords statutory recognition to the privacy in one’s body, home and possessions by the right to be secure against unreasonable search and seizure.74
The introduction of the Privacy Act 1993 expressly recognised the need to protect individual’s information against other “agencies”.75 The Act’s information privacy principles protect “information about an identifiable individual” by providing clear rules for the collection, use, disclosure and storage of personal information.76
Criminal offences related to covert filming and, the new offence of posting a harmful digital communication, apply to “intimate visual recordings”.77 The criminalisation of intimate visual recordings protects against unauthorised intrusions into intimate personal spaces.78 Such intrusions violate “the arguably fundamental desire of human beings to control exposure of their own body”.79
In developing the common law and equity, the Courts have also recognised the need to protect privacy values. In his Honour’s minority judgment, Thomas J of the Supreme Court stated:80
Privacy can be more or less extensive, involving a broad range of matters bearing on an individual's personal life. It creates a zone embodying a basic respect for persons. This zone of privacy is imperative if our personal identity and integrity is
to remain intact. Recognising and asserting this personal and private domain is essential to sustain a civil and civilised society. It is, as I have mentioned, closely allied to the fundamental value underlying and supporting all other rights; the dignity and worth of the human person.
Breach of confidence protects the privacy interest of secrecy. 81 The equitable action protects individuals’ interests in the concealment of information passed in circumstances of confidentiality. Such as commercial interests, private or personal confidences, and government secrets.82
In a non-consensual pornography case,83 Judge Abbott held that the privacy value protected by the common law is the “peculiarly personal...psychological need to preserve an intrusion-free zone of personality and family”. A remedy is warranted on the basis of “the loss of the personal shield of privacy of the person to whom the information relates” when private facts are publicly disclosed.84
The privacy torts extend protection of privacy against the world at large. They protect matters in which an individual has a “reasonable expectation of privacy” from interference, publication or intrusion that is objectively, highly offensive. The breach of private tort protects private facts.85 The intrusion into seclusion tort protects the secrecy of information or circumstances concealed by seclusion.86
Surveying the existing legal framework, Whata J found that New Zealand law had “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”.87
The New Zealand privacy torts have developed following trends in the United States of America to protect the underlying interest in the right to be let alone. Generally agreeing with the development of a tort of invasion of privacy, Tipping J expanded upon the value it protects, he stated:88
It is of the essence of the dignity and personal autonomy and wellbeing [sic] of all human beings that some aspects of their lives should be able to remain private if they so wish... Quite apart from moral and 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.
Almost, 20 years before the Court of Appeal recognised the breach of privacy tort, McGechan J in Tucker v News Media Ownership Ltd expressed the right of ordinary people “to be left alone and to live the private aspects of his life without being subjected to unwarranted, or undesired, publicity or public disclosure.”89 The right to be let alone denotes a privacy interest protected by limited access to the self and control over personal information.90
2. Privacy Harms
Freedom from interference with privacy is not generally recognised as a fundamental right in New Zealand. A rights-based legal response would be made out by proof that privacy has been interfered with. 91 The existing civil and criminal responses to interference with privacy are harms-based. They only protect against serious breaches indicated by: proof of intention, a high standard of harm, or offensiveness.
The law recognises that privacy protects an individual’s control over the disclosure of information about themself. Such control is a key interest underlying a person’s “independence, dignity, and integrity”.92 Interference with privacy injures a “person’s estimate of himself” and causes “mental pain and distress”.93 The law recognises the emotional harm that results from invasions of privacy. However, the laws aimed at addressing invasions of privacy require high standards of harm are met before victims can access a legal response to interference with their privacy interests.
Interference with privacy under the Privacy Act is actionable where it results in “significant humiliation, significant loss of dignity, or significant injury to the feelings of that individual”.94
The Crimes Act offences for covert filming, and similarly the tort of intrusion into seclusion, address the “development of psychological symptom and disorders, distrust in relationships, fear for personal safety, and shame and humiliation” experienced by victims of covert filming.95
The Harmful Digital Communication Act’s criminal offence requires the satisfaction of three different harm-related elements: that the offender intended the post to cause harm to a victim; the post would cause harm to an ordinary reasonable person in the position of the victim; and the post causes harm to the victim.96 The Act expressly defines “harm” as “serious emotional distress”.97
The breach of privacy tort responds to the distress or humiliation of victims which does not amount to a recognised psychiatric harm.98 The actual harm experienced by
the victim is not required to be high because a successful case requires that the publicity given to their information was objectively highly offensive.
Breach of confidence responds in equity to the conscience of the person, who breaches the confidence.99 The action requires that the unauthorised disclosure is “to the detriment of the person entitled to the benefit of the confidence”. However, the plaintiff may not need to show any positive harm if the information was clearly confidential.100
PART THREE: AN ASSESSMENT OF EXISTING LAWS
This Part will assess whether existing laws cover scenarios of non-consensual pornography.101 The law recognises the privacy value in the ability to control certain information. Civil and criminal law set limits on the recording and publication of other’s images in certain circumstances. The application of existing laws to four archetypal cases of non-consensual pornogarphy shows that non-consensual pornography can be addressed by existing protections. However, the legal responses are piecemeal and not always appropriate to address the loss of privacy. Whether the existing laws are adequate responses to non-consensual pornography is discussed in Part Four.
The following scenarios represent archetypal cases of non-consensual pornography as discussed in Part One:
Each of these scenarios involve interference with the individual’s ability to exercise control over who has access their intimate images. However, with no general protection of privacy in the law these cases do not share a clear remedy. Civil and criminal law provide redress to the victim who is recorded without their consent or knowledge in a private place. However, a legal response to the other harmful interferences is less certain. Assessing the application of existing law to these facts
highlights tensions and difficulties in applying the law to privacy cases with different degrees of consent and public information.102
I. Civil Law
Several legal remedies which, are not explicitly framed as ‘privacy law’, address wrongful publication. These remedies include copyright, defamation and breach of confidence. Civil law privacy actions include complaints under the Privacy Act and an action for breach of privacy or intrusion into seclusion.
1. Copyright
Copyright infringement protects copyrighted works from being copied or distributed.103 Copyright attaches automatically to “original works” that are “artistic works” and films.104 Photographs of models; commercial pornography; even private snapshots and home movies attract copyright protection. Copyright is infringed when the work is copied, issued to the public, shown in public or communicated to the public without a license.105 Copying is defined expressly to include digital copies in “any medium and by any means”.106 Publishing intimate images on the Internet to open blogs and pornography sites is “making them available to the public by means of an electronic retrieval system” and is restricted by the Copyright Act 1994.107
The non-consensual pornography victim does not have to be identifiable in the image to assert copyright.108 However, the ability to bring a claim will depend on whether they are the copyright owner. 109 The copyright owner in the first instance is the author of the work.110 The author is the person who creates the works, that is, the person who takes the photograph.111 In many cases this may not be the photo subject.
The victims of non-consensual pornography involving selfies may be able to use copyright infringement where someone has copied and shared their images online. In cases where the sex-partner records the image he or she would own the copyright. This means that in many “revenge porn” cases the victim will not have standing to bring a copyright action. Where the images are hacked from the sex-partner’s accounts the victim would have to rely on them to bring a claim, or arrange for the assignment of the copyright, before he or she could get the images removed using copyright law.
Section 105 of the Act specifically recognises some privacy in images created by others. It allows persons, who (for private and domestic purposes) commission the taking of a photograph or the making of a film and do not own the copyright to prevent copies being issued, shown or communicated to the public.112 This section only applies to images that are commissioned therefore it is likely to be restricted to cases where the party taking the photograph is a professional photographer. It will not assist a victim of non-consensual pornography, who simply consented to his or her partner recording images on their phone or webcam.
Upon finding copyright infringement the copyright owner can obtain relief in the form of an injunction, damages, accounts or otherwise.113 The copyright owner can
also seek an order for “delivery up” of the images and disposal of infringing copies.114 There is a defence available, which precludes an award of damages, where the defendant did not know, and had no reason to believe, that copyright existed in the work.115
The ability to obtain an injunction or the ordering up of the photographs are key remedies for the protecting the victim’s privacy, but the law of copyright is not intended to protect the privacy interests of the image subject. Copyright infringement developed to protect economic interests and the commerciality of creative expression. It is not concerned with harm to the dignity of the image subject.116
Under the Copyright Act copyright infringers may face criminal liability for distributing an image that the person knows is an infringing copy of copyright work to an extent that affects prejudicially the copyright owner.117 This is quite a serious offence with a possible penalty of a fine up to $10,000 or imprisonment for a term not exceeding 5 years. 118 Whether emotional distress caused to victims of non- consensual pornography would be considered a prejudicial effect for the purposes of the Act is unclear. The Copyright Act does recognise moral rights of the author, but is concerned with protecting artists’ reputations, not the dignity or sensitivity of the author.119
Copyright exists in intimate images taken with or without consent, even in public places. Copyright provides a broad protection of the owner’s right to control who may use and publish their images. Non-consensual pornography victims, who own the copyright in their images, can use copyright protection.
2. Defamation
Defamation occurs where a “defamatory statement” is made “about the plaintiff” and “published by the defendant”.120 There is no universal test for what a defamatory statement is.121 The publication of an individual’s intimate images on the internet is capable of, and likely to, lower the victim in the estimation of right-thinking members of society generally; cause them to be shunned; and expose them to ridicule.122 This is the case especially, for women who live in conservative communities or for victims employed in the areas of health, education or politics, where employers and other members in the community are sensitive to claims of immoral behaviour.123
A characteristic of online publications is that they occur out of context. The reasonable man viewing images online will believe that the victim consented to sharing the image and that the victim has no care for privacy or existing social norms.124 Therefore, while an image of someone may be true as to their appearance and involvement in certain activities it is unlikely that the defence of truth could be used in a non-consensual pornography case.125
The defamatory statement must be “about the plaintiff”. The test is whether a reasonable person would reasonably believe that the statement refers to the plaintiff.126 This element requires that the victim is identifiable from the image or connected information. The identification of the victim in the statement is what
allows others to judge that person, thus causing the harm to their reputation. In non- consensual pornography cases, identifying details of the victim are often posted alongside intimate images in an attempt to further humiliate and harm the victim. When intimate images are published without identifiable features victims will not be able to bring a claim even though they may still feel humiliated.127
The defamation action focuses on the defamatory nature of each publication. Defamation may serve as deterrence against further publication, as everyone who shares or re-publishes the image is potentially liable.128 Where the plaintiff consents to the particular publication of the statement the defendant has a complete defence. However, consent must be clear and convincing and directed toward publication in that way. 129 The consensual sharing of an image with one person will not be considered consent for that person to publish the image online.
A common law action in defamation results in compensatory damages to reflect reputational damage. In awarding damages the court will assess the defendant’s behaviour, the nature of the defamatory statement and the extent of publication. Posting intimate images without consent especially, where the harm to the image subject is clear is likely to support a higher award of damages. The extent of publication, such as sending the images specifically to family members and employers or posting the images to “revenge porn” websites will also affect an award of damages.
An injunction may be available if there are clear and compelling reasons.130 The individuals control over information is lost upon non-consensual publication. An award of damages and a successful judgment go someway to compensating the victim, but cannot reverse the individual’s lost privacy. The interest of freedom of expression in posting intimate images of others without their consent is very low,
130 At [16.6.02].
therefore non-consensual pornography cases may cross the threshold for a compelling reason for an injunction.
Defamation will cover non-consensual pornography cases where the victim, who suffers reputational harm, is identifiable and has not consented to that particular type or occurrence of publication. In bringing an action for defamatory statements posted to social media sites victims may face difficulty identifying the defendant.131
3. Breach of Confidence
Breach of confidence in New Zealand is quite a specfic action.132 Breach of confidence covers the disclosure of confidential information. 133 The equitable action is established where there is “information of a confidential nature”; “circumstances importing an obligation of confidence” and “unauthorised use” of that information.134 This cause of action is often used to protect trade secrets and traditional confidential relationships, such as protecting medical records.135
Intimate images will usually be information of a confidential nature, however, the image must also be recorded or shared in the appropriate circumstances. The element of “circumstances importing an obligation of confidence” requires there to be a pre- existing relationship between the parties.136 English case authority extended the action to cover the disclosure where the nature of the information imports the obligation of confidence.137 Notably this extension of the law occurred instead of the
[46] per Gault P and Blanchard J.
development of a specific privacy action.138 In New Zealand the breach of confidence action has not been extended in the same way. Instead the courts chose to develop a separate privacy tort.139
It is likely that breach of confidence would protect images recorded within the confines of a personal relationship. The relationship creates an understanding that intimate images, recorded or shared within the relationship, will not be published without the express permission of the other person.140 Sharing the images outside of the relationship by publishing them online would be unauthorised use of the information.141 A breach of confidence action may not be successful where images are recorded without the victim knowing they are recorded, especially if they are in a public place, or where the images have been hacked.
The requirement of “circumstances giving rise to an obligation of confidence” mean that breach of confidence will not cover images recorded in a public place. 142 Likewise, it will not cover the further publication of images that are already publicly available as there are no longer circumstances of confidence to protect. Breach of confidence is an equitable action so the victim will need ‘clean hands’ and ‘no delay’ upon discovering the publication.
4. Privacy Act 1993
Any person can lodge a complaint with the Privacy Commissioner or Ombudsman under the Privacy Act 1993 where an “agency” has breached an “information privacy principle” and the individual suffers harm. 143 The Privacy Commissioner can
139 At [7].
143 Privacy Act 1993, ss 2, 6, 66, 67.
investigate the complaint and attempt to secure a settlement between the parties.144 In cases of non-consensual pornography mediation is an effective remedy if the offender can be convinced to take down and destroy the intimate images.145 If no settlement is reached, civil proceedings before the Human Rights Review Tribunal may be taken by the Director of Human Rights Proceedings for a declaration, an order restraining the conduct complained of, and damages.146
The Privacy Act gives individuals control over almost any information about them in informational transactions with others.147 The Act applies to “personal information” which is defined as “information about an identifiable individual”. Information is that which “informs, instructs, tells or makes aware”.148 A person’s image tells others about their physical characteristics and often makes others aware of the individual’s activities and whereabouts.149
An individual must be identifiable from the information.150 It may be enough to have distinctive clothing, birthmarks or surroundings in the image.151 Because there is no requirement that complaints are made by the person the information is about, intimate images that are clearly about an individual but, in which the individual is not identifiable, may still be investigated under the Privacy Act.152
information” should be qualified by other considerations under the Privacy Act (Harder v Proceedings Commissioner [2000] NZCA 129; [2000] 3 NZLR 80 (CA) at [23] per Tipping J), this approach has not been followed by the Privacy Commissioner’s Office or the Human Rights Review Tribunal (Paul Roth Privacy law and practice (LexisNexis, NZ, 2007) at [PVA2.12].).
Recording intimate images without consent will most clearly breach Principle 4. Non- consensual pornography is “unfair” and “[intrudes] to an unreasonable extent upon the personal affairs of the individual concerned”.153 Non-consensual pornography cases involving publication will breach Principle 11, which prohibits the disclosure of information, unless the agency reasonably believes an exception is met.154 Disclosure is allowed if it is one of the purposes in connection with which the information was obtained. It would be unreasonable to believe that within the context of a private relationship intimate images were obtained for the purpose of wider disclosure without consent. 155 It is also arguable that keeping intimate images after a relationship ends is a breach of Principle 9, for holding personal information for longer than is required.156
For an actionable interference with privacy the agency’s interference must cause loss to the individual; adversely affect the interests of the individual; or result in significant humiliation, significant loss of dignity, or significant injury to the feelings of that individual.157 The harms of non-consensual pornography are likely to amount to significant humiliation and significant injury to feelings.158
Recent amendments have limited the Privacy Act’s exceptions for publicly available information and personal information relating to domestic affairs. They no longer
website or to harass the ex-partner would breach Principle 9 because it is not a lawful purpose (Privacy Act, s 6.). In deciding how long information should be kept the purpose for which it was obtained and the specific circumstances are relevant considerations (EFG v Commissioner of Police [2006] NZHRRT 48 at [77]–[79]). 157 Privacy Act, s 66.
apply where the use and disclosure of personal information is “unfair” and would be “highly offensive to an ordinary reasonable person”.159 Non-consensual pornography will now be covered by the information privacy principles where the images are recorded and shared within a private relationship or are already available online.160
The Privacy Act does not apply to news activites by the news media.161 However, news media may be held accountable using the privacy torts or the criminal law. Broadcasters are also statutorily required to consider privacy and are subject to their own complaints process. 162 The focus of a legal response to non-consensual pornography should be the individuals with internet access, who are recording and sharing intimate images without any regulation or accountability.163
5. Breach of Privacy Tort
The New Zealand breach privacy tort for disclosure of private facts was formulated by the majority of New Zealand Court of Appeal Hosking v Runting.164 The elements of the breach of privacy tort as observed in the majority judgment are:165
<https://privacy.org.nz/blog/hdca/>.
The tort applies to “private facts”, as shorthand for “facts in respect of which there is a reasonable expectation of privacy”.166 What constitutes a “private fact” is uncertain. Facts can by their nature or by the circumstances in which they appear be “private facts”.167 There is also some uncertainty about when one assesses whether there is a reasonable expectation of privacy.168 Furthermore, the personal culpability of the individual may also limit a reasonable expectation of privacy; celebrities who put themselves into the spotlight may not be able to rely on privacy to the same extent as private citizens.169
Non-consensual pornography cases involve “intimate images”, which are images that individuals reasonably expect to exercise control over in accordance with social norms.170 Thus, the element of “private facts” should theoretically be met in all cases of non-consensual pornography. However, in practice the courts have considered consent and the extent to which facts occur in public when interpreting a “reasonable expectation of privacy”.171 Therefore, where the victim consents to taking the image and sharing it, or the image is recorded in a public place, they are unlikely to satisfy the first element of “private facts”.172
The second element limits the protection of private facts to cases where publication would be “highly offensive to an objective reasonable person”. This element ensures that the tort will not be used to address trivial matters and protects the competing interest in the right to freedom of expression.173 Because of the social expectation that
169 Andrews v TVNZ [2009] 1 NZLR 220 (HC) at [42]–[47].
intimate images will be kept concealed, non-consensual publication is objectively offensive. Where intimate images are widely published online and the victim experiences serious emotional distress the “highly offensive” standard of the second element is likely to be met.174
The tort is concerned with “publicity that is truly humiliating and distressful or otherwise harmful to the individual concerned”.175 Therefore, the victim must be identifiable in the publication by “those who know them but do not know the facts”. 176 This requirement may preclude a remedy in cases of non-consensual pornography where the image is of a zoomed-in body part, however the victim may still feel violated by the publication of their image.177
The competing interest in the right to freedom of expression is also reflected in the defence of legitimate public concern. 178 To determine whether the matter is of legitimate public concern reference should be made to the “community norms, values and standards” relevant in the individual case.179 However, upholding freedom of expression in commercial publication should not justify “a substantial adverse impact on the personal dignity and autonomy of individuals”.180 There will be very few cases in which there is a legitimate public concern in the non-consensual publication of an individual’s intimate images.
A successful action for breach of privacy or intrusion into seclusion will primarily result in an award of general damages to compensate the victim’s emotional harm.181 An injunction to prevent continuing or recurring harm may be available in some
circumstances.182 An injunction to restrain publication is limited to where there is “compelling evidence of most highly offensive intended publicising [sic] of private information and little legitimate public concern in the information”.183
6. Intrusion into Seclusion Tort
In a case involving the non-consensual recording of an intimate image, Whata J held that an invasion of privacy action existed for recording intimate images, without publicity or the prospect of publicity.184 The elements of the tort of intrusion into seclusion are:185
“Intrusion” requires an unauthorised affirmative act, but is not restricted to physically invading an individual’s private space. 186 Recording someone without their permission is an unauthorised intrusion. However, the tort does not cover incidental recordings by surveillance or recording and receiving images with consent.187
“Seclusion” is described as “intimate personal activity, space or affairs”. 188 This suggests that the tort is not limited physical privacy and may apply to intimate acts in public places. However, the third element imports the requirement of “a reasonable
expectation of privacy”. With respect to the same requirement for breach of privacy, “a reasonable expectation of privacy” in a public place was considered to only exist, if at all, in exceptional circumstances. 189 Thus, the application of intrusion into seclusion in cases involving images shared with consent or recorded in public, is likely to suffer the same limitations as the breach of privacy tort.
Whether an intrusion is “highly offensive to a reasonable person” depends upon social conventions or expectations in the circumstances.190 The criminal offence for intimate covert filming indicates that recording intimate images without consent is highly offensive to the reasonable New Zealander.191 Simply recording someone in certain circumstances is recognised as a wrong against that person. 192 Even without publication, the individual’s interest in controlling access to their intimate image is infringed.193 Victims are likely to be distressed by the offender’s access to their intimate image.
In non-consensual pornography cases the tort of intrusion into seclusion will cover the gap left by the publication requirement of the breach of privacy tort. Furthermore, it provides an avenue for civil damages or an injunction for acts, which breach the covert filming provisions in the Crimes Act 1961.194
II. Criminal law
Under the criminal law the police can prosecute for “giving offensive material to a person” under the Harassment Act 1997,195 or for making or publishing an “intimate visual recordings” under Part 9A of the Crimes Act 1961.196 The general approach of the criminal law toward wrongful publication was to reflect the covert filming offences.197 Accordingly, the offences for wrongful publication under the Crimes Act were limited to situations where the images had been recorded or obtained without consent.
The new criminal offence introduced by the Harmful Digital Communications Act 2015 extends the protection of intimate visual recordings to those recorded with consent. However, the effectiveness of the offence in punishing acts of non- consensual pornography is limited by the requirement that the images are published with the intention of causing harm to the victim.
1. Harassment
Harassment is both a civil action and a criminal offence found in the Harassment Act 1997. Harassment occurs where a person engages in a pattern of behaviour or a continuing act directed against another person that is a “specified act”.198 It is a criminal offence where the harasser intends, or knows that it is likely in the circumstances, for the harassment to cause the other person to fear for his or her safety, or the safety of any person that he or she is in a family relationship with.199
196 Crimes Act 1961, ss 216G, 216H, 216J.
(NZLC R113, 2010) at 98.
The Harassment Act was amended this year to cover invasions of privacy by posting offensive material to the internet. 200 “Specified act” now includes “giving offensive material to a person by placing the material in any electronic media where it is likely to be seen by, or brought to the attention of, that person”.201 It is likely that “offensive material” will include images of an intimate nature in cases of non-consensual pornography. Not only would the reasonable New Zealander consider the posting of intimate images without consent an offensive publication, but this is the type of behaviour Parliament sought to cover by extending the scope of the Harassment Act.202
To establish harassment the posting of intimate images must occur more than once or continue to have effect over a protracted period. The Act specifically states that for the posting of offensive material this element may be met by the material remaining on the electronic media.203 The length of time required for a ‘protracted period’ will be significant as to whether this provision will be an effective response to non- consensual pornography. The harm of non-consensual pornography is exacerbated by longer and broader exposure of the images online.
The Harassment Act provides a limited protection that recognises the privacy interest in being let alone from repeated or continual intrusions into your life that cause a person to fear for their safety. Under the Harassment Act victims of harassment can apply for a restraining order if the behaviour of the harasser causes them distress. This will be useful in cases where victims are sent threatening messages or followed after their images have been released online.204
203 Harassment Act 1997, ss 3(1), 3(3), 3(4).
The purpose of the Harassment Act is to address acts that may appear innocent or trivial when viewed in isolation, but may amount to harassment when viewed in context.205 It deals with actions such as loitering near someone or making contact with someone. 206 Conversely, it is clear that a single act of non-consensual pornography can cause grave harm to victims. The relegation of a non-consensual pornography case to a form of sustained harassment does not give appropriate recognition to the seriousness of the act of publishing intimate images without consent.
The Harassment Act aims to make the most serious types of harassment criminal offences.207 The mens rea requirements of intention reflects the seriousness of actions that are undertaken for the purpose of causing harm to others. The harm from non- consensual pornography comes from the exposure of the images to the public which destroys the victims interest in privacy. This can occur when the defendant recklessly or carelessly publishes the photos. Therefore the criminal provisions of the Harassment Act would not be able to address all instances of non-consensual pornography.
2. Intimate Covert Filming
In 2004 the Law Commission argued that a new criminal law was required to respond to the development of technology enabling the recording of intimate images without the knowledge or consent of the image subject.208 Parliament agreed and since 2006, under Part 9A of the Crimes Act, it is an offence to make, possess, and publish intimate visual recordings.209 Intimate visual recording is exhaustively defined as:210
209 Crimes Act 1961, ss 216H, 216I, 216J.
(1) In sections 216H to 216N, intimate visual recording means a visual recording (for example, a photograph, videotape, or digital image) that is made in any medium using any device without the knowledge or consent of the person who is the subject of the recording, and the recording is of—(a) a person who is in a place which, in the circumstances, would reasonably be expected to provide privacy, and that person is—
(i) naked or has his or her genitals, pubic area, buttocks, or female breasts exposed, partially exposed, or clad solely in undergarments; or
(ii) engaged in an intimate sexual activity; or(iii) engaged in showering, toileting, or other personal bodily activity that involves dressing or undressing; or
(b) a person’s naked or undergarment-clad genitals, pubic area, buttocks, or female breasts which is made—
(i) from beneath or under a person’s clothing; or(ii) through a person’s outer clothing in circumstances where it is unreasonable to do so.
An offender may be criminally prosecuted and liable to up to three years imprisonment for intentionally or recklessly making intimate visual recordings,211 and where they know or are reckless as to whether the image is an intimate visual recording, for possessing the image for the purpose of publishing 212 and for publishing the image.213
The offences apply to intimate visual recordings “made in any medium using any device” so include digital recordings and publication online.214 However, the scope of the remedy under the Crimes Act is restricted to intimate images that are recorded without knowledge or consent in circumstances, which would reasonably be expected to provide privacy. 215 Because the specific definition of intimate image includes elements of locational privacy and consent this provision will only cover non-
consensual pornography where the image subject is in a ‘private’ place and unaware that they are being recorded.216
Although the Crimes Act only applies to a narrow scope of non-consensual pornography cases it remains a comprehensive response to the invasion of privacy in those cases; each of the actions of recording, possessing and publishing the images is an offence. Importantly, under the Crimes Act the court may order the destruction of the recording and the forfeiture of the equipment used to in respect of the commission of the offence, such as a computer hard drive. Such orders help to prevent further publication and go some way to redressing the invasion of privacy by ensuring that the offender no longer has the images and equipment to re-offend.217 It is also an offence for any person, who without reasonable excuse, knowingly possesses an intimate visual recording of another person.218 This provision should deter others from saving copies of intimate visual recordings and help to remove the images from circulation.
Once images are published online it is very difficult to effect their complete removal. Also, the deterrent effect of these provisions depends upon the ability to identify the offenders. The criminal law potentially provides comprehensive protection for certain invasions of privacy, but will be difficult to enforce against annonymous, international internet users, who are copying, saving and further publicising intimate visual recordings. Even where a conviction under the criminal law is secured, it addresses the social wrong of the action, but only provides modest monetary redress for the victim. Sufficient monetary compensation may still have to be sought through a civil action.
3. Harmful Digital Communications
From 3 July 2015 the Harmful Digital Communication Act 2015 (HDCA) made it a criminal offence in New Zealand to cause serious emotional distress by “posting digital communications”.219 The purpose of the Act is to “deter prevent, and mitigate harm caused to individuals by digital communications; and provide victims of harmful digital communications with a quick and efficient means of redress”.220 The scope of the offence is very broad, however the three harm requirements will limit the number of successful cases.221
“Digital communication” is defined as “any form of electronic communication”.222 The Act gives as examples any “text message, writing, photograph, picture, or recording”.223 A communication is posted when an individual “transfers, sends, posts, publishes, disseminates, or otherwise communicates”.224 The terms “posts, publishes, [and] disseminates” indicate that the Act is not restricted to a narrow interpretation of “communication” as the exchange of information between individuals, but will include unilaterally uploading content to websites and blogs.225
The offence is broader than existing actions for the wrongful publication of information as it does not require that the post is seen by others.226 The offence expressly includes attempts to communicate.227 A stricter publication requirement would undermine the intention of the Act to deter and prevent harmful
communications from occurring and would limit the Act’s ability to provide a remedy for bullying where harmful communications are only sent to the victim.228
The HDCA applies to the posting of intimate images that are “intimate visual recordings”. 229 The specific definition of “intimate visual recording” reflects the current understanding in New Zealand of images that should be protected by privacy. It includes images of naked body parts and “up-skirt filming”, as well as, images of individuals engaged in certain activities.230
The specific definition of “intimate visual recording” is at odds with the otherwise broad definitions in the Act. While it has been extended to include recordings made with the knowledge or consent of the image subject, it still includes the locational requirement that an individual is “in a place which, in the circumstances, would reasonably be expected to provide privacy”.231 Thus, it is unlikely to include images recorded in public.232 The exhaustive definition is inflexible and may impede the court’s ability to respond to meritorious claims as social attitudes toward privacy change. Alternatively, it may be possible to bring intimate images within the terms “any information, whether truthful or untruthful, about the victim”. 233 However, Parliament expressly included the extended definition of intimate visual recording to deal with the posting of intimate images.234
A person commits a offence by satisfying three harm requirements addressing the intention to cause harm, and the objective nature of the post and harm suffered by the victim.235 Posts must be made with “the intention that it cause harm to a victim”.236 Revenge porn would clearly satisfy this element, however intimate images may also be recorded and shared for entertainment, public curiosity or gloating without intending that the image subject suffers serious emotional distress. 237 Intention to cause harm is a prohibitively high standard especially where the harm required is “serious emotional distress”.238
The posting must also be objectively harmful.239 To assess this element the court may consider that nature of the post (although intimate visual recordings are already specifically included by the Act), “the extent of circulation of the digital communication” and “the context in which it appears”.240 Although “[posting] a digital communication” does not require publication of the images to others, courts may be reluctant to find “serious emotional distress” where the images are not actually seen by others.
Non-consensual pornography involves interference with the individual’s ability to control their intimate information and their right to be let alone. The individual’s right to control information is lost when even one person has unauthorised access.
“reasonable person” to determine whether publicity of private facts was high offensive. (Hosking v Runting, above n 5, at s 127.).
However, to meet the high standards of harm wide-spread publication will usually be necessary.
The tort of intrusion into seclusion and the right to be free from unreasonable search and seizure protect the right to be let alone even where there is no wider publication of facts. The objective harm-requirement recognises that a person’s right to be let alone is not absolute. Although, some individuals may be more sensitive and still suffer harm because we must live together in communities our competing interests in privacy and expression must be assessed according to community standards.
The Law Commission found that “[d]amaging behaviour that occurs on the internet mirrors offline behaviours”.241 The previous legal remedies, developed in response to separate “offline behaviours” related to wrongful publication, had left gaps when applied in the digital context.242 By its broad definitions the HDCA covers all online communications, but the criminal offence will only apply to cases which satisfy the strict harm requirements.243
The HDCA criminal offence extends the law’s response to cases of non-consensual pornography to images recorded with consent. It addresses typical cases of revenge porn, but will still not cover images recorded in public. Despite its broad application, the HDCA will not protect the victims of the reckless or careless sharing of images, or intimate images shared for the purpose of entertainment or curiosity.
242 At 195–197.
PART 4: ADEQUATE PROTECTION FOR NON-CONSENSUAL PORNOGRAPHY
This chapter begins by assessing what interests the existing legal responses are aimed at protecting. Non-consensual pornography is a form of privacy invasion involving the interference with an individual’s ability to control their information. The adequacy of the existing legal remedies not only depends upon, whether the laws cover scenarios of non-consensual pornography, but also whether the provisions are specifically aimed at the essence of the harmful conduct.244
It then looks to see whether the civil or the criminal law are better suited to addressing cases of non-consensual pornography. The tort of breach of privacy and the criminal prohibition on publishing intimate visual recordings have the potential to provide comprehensive protection of the privacy interest in controlling information with respect to intimate images.
Finally, it discusses how the concepts used to consider privacy cases should be updated in light of the digital context in which many of our interactions take place.
1. Do the Existing Remedies Protect the Privacy Interest?
Analysing the adequacy of existing legal remedies this dissertation looks at two factors: whether the civil actions and criminal offences apply to scenarios of non- consensual pornography, and whether they are specifically aimed at the essence of the harmful conduct. The civil and criminal law both cover the non-consensual recording and publication of intimate images in some scenarios, but only a few laws are directed toward protecting individuals from humiliation and distress caused by invasions of their privacy interests.
Copyright infringement responds to economic loss from the unlicensed publication of images an individual has authored. Copyright Act expressly provides for relief that is “available in respect of the infringement of any other property rights”.245 Copyright is directed toward the skill and labour of the author in creating the original work. Copyright law responds to the unlicensed use of copyright images to protect the economic value in creating original works, thereby promoting creativity and innovation.
Defamation addresses reputational harm, it provides relief for false statements published about the victim. A successful action in defamation expresses to the world that the information spread about the plaintiff was false and goes someway to remedying the damaged reputation. Non-consensual pornography will often result in damage to the victim’s reputation. However, the publication of intimate images causes hurt and distress beyond reputational harm. 246 Defamation is about the lowering of an individual in the eyes of others, whereas invasions of privacy change how a person feels about himself or herself.247
Breach of confidence is limited to protecting the concealment of information communicated in confidential relationships.248 There is clearly an overlap between protecting privacy and remedies for the publication of confidential information.249 However, an action protecting information obtained in confidence will not protect all of the intimate and secret matters that deserve protection. To extend the established concept of confidence to accommodate the privacy interests beyond confidential information would confuse the existing law as it protects trade secrets and commercial documents.250 Breach of confidence addresses the harm of that results
when trust is broken as in cases of revenge porn, but does not address the emotional distress, humiliation and fear that results from having one’s intimate self exposed online.
The Privacy Act is directed toward promoting individuals’ control of their personal information. The harm requirement for an actionable interference with privacy shows that the Act is aimed at the emotional distress caused to victims by invasions of privacy.251 The Privacy Act information privacy principles set minimum standards for processing information: collection, storage, access, correction, holding, using and disclosing.252 The Act is a mechanism by which individuals may assert control over information about themselves. It relies on individuals being aware of the information held by agencies about them and taking action to protect their own privacy interests.253
The breach of privacy tort addresses emotional harm from the highly offensive publicity of an individual’s private facts. The tort provides victims with a remedy against any one who breaces their privacy by publicising their private facts. It gives individuals an avenue to assert control over the disclosure of their private facts. However, the requirement for publicity to be highly offensive limits the recognition of the privacy interest. The tort is directed to the ability of individual’s to control wide- spread disclosure of their private facts.254
The intrusion into seclusion tort addresses the right to be let alone. It provides a remedy for highly offensive acts intruding into seclusion, in which indivduals have a reasonable expectation of privacy. It widens the protection of tort law by targeting the individual’s ability more broadly to control access to themself.
The Harassment Act is directed patterns of behaviour or continuing acts that are done to individuals. The Act specifies the failure to remove online images after a protracted period.255 The Harassment Act protects the right to be let alone from the annoyance of others, but is aimed at an accumulation of less serious acts. Non-consensual pornography is a serious appropriation of control over one’s public persona, enough to cause serious emotional harm and distress. It is not appropriately dealt with as simply an uncomfortable interference that deserves a response only once the images remain published for a protracted period.
The Crimes Act prohibitions address intentional or reckless interferences with the privacy interest of the right to be let alone. The Act goes further than the privacy torts by specifically prohibiting the possession of “intimate visual recordings”. 256 The definition of “intimate visual recording” excludes images recorded with the knowledge or consent of the image subject.257 Therefore, the Act does not recognise the interest individuals have in limiting the publication and possession of intimate images taken with their consent.
The Harmful Digital Communications Act (HDCA) addresses harmful online communications, including posts of “intimate visual recordings” taken with the image subject’s consent.258 It addresses privacy interests in both the right to be let alone and the ability to control the disclosure of information. The wide definition of “digital communication” covers communication between two individuals, as well as, website or blog posts and “posts a digital communication” expressly includes posts of intimate visual recordings.259 The HDCA is intended to prevent harm caused to victims of cyber-bullying. Non-consensual pornography and the interference with an individual’s privacy causing emotional distress is a type of bullying. While the HDCA broadly covers the right to be let alone from online bullying, the protection provided by the
criminal offence is severelly constrained by very strict harm requirements.
2. Should the Civil or Criminal Law Respond to Acts of Non-consensual Pornography?
Since the existing law does not clearly respond to the common scenarios of non- consensual pornography (both in terms of strict legal applicability and conceptual underpinnings) the question becomes what is the best way to change the law to provide a response. First, we must decide whether Parliament or the courts are best placed to provide a legal solution to non-consensual pornography. Parliament can create new criminal offences or expand the scope of existing offences. Likewise, the courts may develop new torts or update existing causes of action. The following section, sets out how the courts should revise the concepts and principles underlying the law to reflect current social norms changed by the development of new technology. To conclude, Part 4 recommends that the civil complaints process under the Privacy Act (and within the next two years under the HDCA) is the most appropriate first response to interferences with privacy. However, in more serious cases, the criminal offences for covert filming and the privacy torts, with slight modification, can provide an appropriate legal response to non-consensual pornography.
The common law has an inherent ability to respond to proved wrongs by providing a cause of action for relief.260 Privacy tort law developed in the United States of America with Warren and Brandeis’ seminal article on the general need for privacy protection and the work of William Prosser, reducing the general recognition of privacy into the four separate torts.261 New Zealand has since adopted two of the torts
expressed by Prosser and left open the possibility of the development of further privacy actions.262
Tipping J in the Court of Appeal in Hosking v Runting wrote that in the face of rapidly changing technology the common law should develop to deal with the problems that have arisen.263 The common law has the advantage of being able to adapt to swift changes in developing areas of law and gives courts the flexibility to respond to cases as they arise.264
Simply because a wrong results in non-pecuniary loss does not preclude a tortious response and judicial consideration of appropriate compensation. 265 Remedies of damages are intended to compensate the victim for damage, loss or injury suffered.266 However, protecting privacy in the courts is costly and with the prospect of only small damages awards.267
The court in Hosking v Runting considered the development a remedy for interference with privacy was a shift away from the traditional focus of tort liability for reprehensible conduct.268 The tort protection that developed, however, was far from a general recognition of the right to be free from interference with privacy. Privacy protection in tort has developed in response to the specific acts of publication and intrusion. 269 The “highly offensive” element of the torts focuses the inquiry on whether the invasion of privacy is sufficiently serious to warrant a remedy.270
Although now clearly established in New Zealand law, there was resistance to the development of a breach of privacy tort.271 The boundaries of the privacy interest protected by the tort are still ill-defined and the application of the major elements in different cases is uncertain.272
The development of the tort in cases, which did not involve intuitively “private” facts,273 and the cautionary approach of the courts in balancing privacy against the right to freedom of expression has resulted in the formation of an overly restricted tort. 274 The compounding elements of the tort set a “heavy burden” for the plaintiff.275
A remedy in tort appropriately reflects the need for flexibility to respond to technology and allows for a case-by-case analysis of private facts worthy of protection. The Law Commission recommended leaving the development of privacy protection to the courts.276 However, the current interpretation of the torts is poorly adapted to wrongs committed in cyberspace.277 The next section discusses how the court’s use of the public/private distinction and consent needs to be updated to deal with invasions of privacy in non–consensual pornography cases.
A response from Parliament offers different advantages. Dealing with non-consensual pornography through the criminal law offers several benefits. The enactment of a criminal offence indicates parliamentary intent to protect a recognised right or
interest. Interference with such interests is not merely a wrong committed against another individual, but an affront to public conceptions of acceptable conduct.278
A criminal offence for invasion of privacy recognises that privacy is a form of control over information necessary to maintain one’s dignity and autonomy, not a kind of property right.279 The psychological harm experienced by victims of non-consensual pornography is more closely related to the kind of harm traditionally addressed by prosecution under the criminal law, rather than compensation from common law damages.280
Criminal offences do not only protect the individual’s interest in privacy. They help to promote better respect for privacy in the community. For example, the Crimes Act offence prohibits “intentional or reckless” interference with privacy without requiring proof of harm. The focus is on the interference itself.281 Although, criminal sanctions are only partially concerned with vindicating individuals’ rights, they have a stronger deterrent effect on harmful behaviour than civil penalties.282
3. Updating Privacy Law Concepts for Better Protection
Courts have been unwilling to recognise general actions for the invasion of privacy so have applied restrictive elements to limit liability. The reluctance of the courts to provide broader protection to victims stems from the ethereal nature of the alleged harm,283 the uncertain boundaries of what is actionable privacy and consideration of the competing interest in the right of freedom of expression.284
(Stanford Law Books, Stanford, 2008) at 271; C v Holland, above n 18, at [89].
279 Solove, above n 2, at 1112–1114, 1149.
To preclude trivial claims the tort of breach of privacy is limited to “private facts” in respect of which there is a “reasonable expectation of privacy”. 285 The court’s interpretation of this element bars recovery in some cases of non-consensual pornography because of the reliance on privacy concepts from the 20th Century.286 Notably, the tort fails to provide a remedy where the matter is publicly known or the victim consents to being recorded.
A. Public/Private Distinction
The breach of privacy tort protects private facts. New Zealand Courts have cited, with approval, the test by the Australian High Court in Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199:287
There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private...Certain kinds of information about a person... may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved.
The public/private divide is a key assumption of the privacy framework in New Zealand.288 The general rule is that matters which occur in public places are not private facts for which there is a reasonable expectation of privacy.289 The image of an action undertaken in a public place has little privacy value because it is simply a record of what anyone in the area would have seen. Participating in societal life
necessitates interactions with others and a certain degree of exposure. 290 The possibility that this rule may be qualified in exceptional circumstances has been left open.291
A strict test of private as opposed to public information reflects an understanding of privacy as meaning secrecy.292 Privacy only exists in secrets which are concealed or hidden from the public; when secrets are disclosed the interest in privacy is lost.293 However, the introduction of information technologies has exacerbated the confusion at the boundaries of what is private and what is public.294 The concept of publicly available information needs to be readdressed in the digital age.295
Individuals often expect privacy even in public spaces.296 We may reasonably expect to be seen and heard by those in the area, but that does not necessarily extend to an acceptance that our images will be permanently recorded and disclosed to an audience much larger than, and physically separated from, the context in which the action is undertaken. Publishing the image of a topless woman on a beach to the internet causes harm because the exposure of her body is of a different kind and scale to what she has consented to.297
Understanding private facts as information that is not public uses a ‘spatial metaphor’ to protect an area of privacy into which the State cannot intrude.298 This metaphor is not apt to deal with privacy online; cyberspace is not a physical space.299 The digital age also changes the focus of privacy protection because individuals need their privacy to be protected from interference by other individuals.300
Public and private information should not be divided in absolute terms. Individuals value selective disclosure and do not intend acts of disclosure to be limitless. The introduction of the Internet and online sharing now means that despite any such limited or selective intention information may be infinitely copied and shared.301 The courts should assess reasonable expectations of privacy in context, recognising that disclosure is a question of degree.302
B. Consent
The law does not protect individuals from the consensual publication of their information.303 By consenting to being recorded the individual accepts the risk that the recording could be seen by others.304 The common law has adopted the element
299 At 1131.
[63] per Tipping J, [104] per McGrath J, [145] per Anderson J.; Recording and publishing intimate visual recordings under the Crimes Act is only an offence if done without the consent or knowledge of the individual. Crimes Act 1961, s 216G.
of a reasonable expectation of privacy to delineate circumstances or facts, in respect of which the reasonable person does not consent to interference from others.305
The element allows the courts to assess the subjective desire of the individual to control information and whether the particular information is considered worthy of protection by society. A reasonable expectation of privacy arises out of the nature of the facts or the circumstances in which they are obtained.306
The concept of reasonable expectation of privacy helps the courts to consider what information ought to be within one’s control.307 However, consent is not binary.308 Individuals may have a reasonable expectation of privacy in relation to certain uses of their information and may relinquish degrees of privacy by consensually disclosing the information to a particular audience or in a particular context.309 Whether an individual has a reasonable expectation of privacy in information or activites must be decided contextually, with regard to contemporary societal norms for what interferences amount to a violation of privacy. 310 A more concretely defined conception than the “amorphous” element of reasonable expectations is undesirable in privacy law where the value afforded to privacy depends upon the culture and time in which the action occurs.311
<https://www.privacy.org.nz/blog/right-to-be-forgotten/>.
A reasonable expectation of privacy at the time information is recorded may differ from expectations when facts are published.312 Three members of the Supreme Court in Rogers v Television New Zealand Ltd considered the reasonable expectation of privacy of the subject of a recorded police interview at the time of filming.313 Elias CJ, in Rogers observed that Canadian and British authorities assess a reasonable expectation of privacy at the time of publication, and held that the time for an assessment of reasonable expectation of privacy was not yet settled in New Zealand.314
A later assessment focuses on the impact of the particular publication and remains flexible enough to allow individuals to develop a reasonable expectation of privacy with respect to information. Underlying such an approach is the idea that expectations of privacy depend upon the social and cultural context. The publication of information, which was once not considered private, may become harmful as social norms change.
4. Recommendation
It is important in cases of non-consensual pornography that a quick and efficient means of redress is available. The victim’s privacy continues to be interfered with until the images are taken down and destroyed. The longer intimate images remain online the more likely they are to be seen and copied, increasing the harm caused to the victim.
The ability to cheaply secure a quick response to privacy interference is problematic under the civil law torts and criminal offences. Bringing a civil action in the courts is expensive and the prospects of damages for privacy breaches are low. Criminal
[105] per McGrath J.
prosecution depends upon the identification of the defendant, the requisite jurisdiction and the decision of the police to prosecute.
Under the Privacy Act and (within the next two years) the Harmful Digital Communications Act complaints can be made to statutory bodies, which have been created specifically to deal with complaints about interference with privacy and harmful digital communications. The complaints process is a cheap way to address privacy breaches, however the process can be slow and without guaranteed results.
In theory, the mandate of the Privacy Commissioner and Approved Agency to investigate complaints and attempt settlement between the parties will provide the most appropriate response to dealing with the interference of privacy interests in most cases. Defendants can be made aware of the seriousness of interferring with an individual’s privacy and the grave harms experienced by the victims of non- consensual pornography. They can, then, be given the opportunity to apologise, delete the images and promise not repeat the interference in the future. Although highly optimistic, such a result would have the benefit of educating people about harmful online practices and may go someway to addressing the hurt and fear of repetition experienced by the victim.
The use of the civil complaints process as a first response to interference with privacy aims to reduce the impact the interference has on the victim. It is important in non- consensual pornography cases that attempts are made to have all copies of intimate images returned or destroyed and that published images are taken down off websites. In serious cases the criminal law should respond by prosecuting the offender, who interfered with the privacy of the victim. If the harm experienced by the victim cannot be properly addressed in reparations, the victim should also have recourse to a civil action in tort against the offender.
A criminal law response to non-consensual pornography, which directly addresses the privacy value in initimate images, demonstrates social disapproval of privacy invasion and deters further invasions of privacy. Parliament should modify the existing
criminal offences for intimate visual recordings under Part 9A of the Crimes Act 1961 to respond to non-consensual pornography. The Crimes Act sets out three prohibitions covering interferences with individual’s privacy interests in intimate visual recordings. The prohibition on “intentionally or recklessly making an intimate visual recording” protects the individual’s privacy in the “right to be let alone” even where the intimate image is not published.315 The prohibitions on “knowingly or recklessly possessing for the purpose of publishing” and “knowingly or recklessly publishing” protect the individual’s privacy in the right to control their intimate image.316
The offence needs to be modified in light of current understandings of privacy to adequately respond to non-consensual pornography cases. The condition “without the consent of the person who is the subject of the recording” will have to be inserted into the provisions of the offence. Listing specific body parts and actions for an image to be an “intimate visual recording” is not desirable, but will address the currect privacy concerns, until that definition no longer reflects the social understanding of what is intimate.317
The specific definition of “intimate visual recording” needs to be extended to reflect that individuals may consent to limited disclosure of their intimate image and may reasonably expect privacy in public.318 Parliament already extended the definition to include images recorded with consent in the Harmful Digital Communications Act 2015:319
Intimate visual recordings, which are not “upskirt filming”, must be of “a person who is in a place, which in the circumstances, would reasonably be expected to provide privacy, and that person is–”. This reference to a physical location reflects the practice of considering private information as “information that is not public”. Instead, the definition could simply refer to “a person who has a reasonable expectation of privacy, and that person is–”.
The “reasonable expectation of privacy” test takes into account the individual’s desire for privacy and the competing interests of other members of society. The reference to physical space in defining privacy is an anachronism in the digital age. A person who streams themself dancing naked in front of their webcam may be in the privacy of their home, but have no reasonable expectation of privacy. A person at the beach whose togs accidentally fall down should reasonably expect that others would not be permitted to record their naked body as they cover themselves back up.
The Crimes Act offences are preferred over the Harmful Digital Communication Act’s criminal offence because they are directly concerned with intimate images and privacy protection. The lower mens rea requirements of recklessness and knowledge are more suitable to address the wrong of interference with privacy. Not every interference with privacy will deserve criminal liability. However, when recording or publishing intimate visual recordings it is enough that the offender knows they are likely to cause harm. A higher standard is not required because the nature of the images will make it clear that acting without the consent of the image subject is an interference with their privacy and may cause them harm. A lower standard than intention, also ensures that the prohibition applies where images are uploaded for entertainment or as a joke. The defintion of “publishes” is already broad enough to cover digital media. It includes: “displays”, “sends” or “distributes” by any means,
“conveys by electronic medium” and “stores electronically in a way that is accessible by any other person or persons”.320
In comparison the Harmful Digital Communication Act is framed much more broadly. The Act will cover almost all possible digital communications and is not limited to harm caused by interference with privacy interests.321 The specific focus of the Act is serious emotional harm that results from receiving or becoming aware of digital communications, one example is an intimate visual recording. “Posts a digital communication” is defined with two limbs: “any information, whether truthful or untruthful, about the victim;” or “an intimate visual recording of another individual”.322
To limit the extent of criminal liability created by the offence three strict harm requirements must be satisfied. Because the Harmful Digital Communication Act applies to almost all digital communications, the first element of the offence requires an intention to cause harm. The high standard of mens rea is required to prevent unduly restricting online communication. However, such a high standard of mens rea is unnecessary in relation to intimate visual recordings. The nature of intimate visual recordings is that non-consensual publication will cause harm to the image subject, regardless of the intention of the offender. Therefore, in relation to intimate visual recordings this requirement only serves to limit the cases of non-consensual pornography that can be dealt with under the Act. It would not be possible to alter the elements of the offence, as they apply to intimate visual recordings, because of the way they have been included in the interpretation of “posts a digital communication”.
Where the victim’s rights are not sufficiently vindicated or the harm is not sufficiently addressed under the criminal law, an individual may seek recovery in the civil courts.
320 Crimes Act 1961, s 216J(2).
The tort of breach of privacy can be used in cases of non-consensual publication or threatened publication of intimate images, and the intrusion into seclusion tort can be used for the recording of intimate images without consent.
Complaints under the privacy torts promote the privacy value in giving individuals control over their private facts and protecting the right to be let alone in seclusion. Nevertheless, victims of non-consensual pornography are left without a remedy where they consent to the recording or sharing of the image, or are recorded in a public place. The same torts may provide a remedy in cases of non-consensual pornography if the court revises how it interprets “reasonable expectation of privacy”.323
The privacy tort is the closest legal response to a comprehensive and general protection of privacy interests under our law. It provides an individual with a remedy where private facts are given publicity that is highly offensive.324 However, the Court of Appeal in Hosking stated that the tortious action it recognised was not to be understood as a general protection and only applies where publicity is highly offensive.325 As it exists now, the tort gives individuals a limited privacy right against the world at large.
In developing the tort of privacy, the courts have the opportunity to provide a general privacy protection for the wrongful publication of private facts. A remedy would be available upon proof that an individual’s private facts were published without their consent. The restriction of the tort to proper cases of “private facts” would be enough to preclude trivial claims and unreasonable limitations of freedom of expression. The court considers community norms and standards when assessing whether the victim has a reasonable expectation of privacy in the facts.326 Where “private facts” are published without permission the victim’s interest in controlling that information is lost, and in most cases they will experience emotional harm and loss of dignity. There
325 At [45], [125].
326 At [125].
will be very few cases of legitimate public concern in publishing private facts without the consent of the individual, where the publication is truly humiliating or distressing.
CONCLUSION
The law is a tool capable of redefining and regulating social practices. In response to the advancement of technology, which enables the recording and sharing of intimate images online, the law must provide better capacity for individuals to exercise control over tangible expressions of their private information, such as intimate images. The law should respond to activities that interfere with recognised values and cause individuals to suffer harm.
The law recognises the privacy value in the right to be let alone and to control information about oneself. A combination of legal responses exists to cover the non- consensual pornography scenarios analysed in this dissertation. However, they are not all directed toward protecting privacy interests and some are inappropriate given the serious emotional harm caused by non-consensual pornography. There is potential under the current law to provide broader protection of privacy, but the use of old concepts relating to consent and the public nature of information reduce the efficacy of those remedies.
BIBLIOGRAPHY
New Zealand
Andrews v TVNZ [2009] 1 NZLR 220.
APN New Zealand Ltd v Simunovich [2009] NZSC 93; [2010] 1 NZLR 315. Bradley v Wingnut Films Ltd [1993] 1 NZLR 415.
Brooker v Police [2007] NZSC 30.
Case Note 37930 [2002] NZPrivCmr 10.
Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385 (CA). C v Holland [2012] NZHC 2155.
EFG v Commissioner of Police [2006] NZHRRT 48. Harder v Proceedings Commissioner [2000] NZCA 129; [2000] 3 NZLR 80.
Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA).
L v G [2002] DCR 234.
Peck v The United Kingdom, ECHR, No 44647/98, 28 January 2003. Proceedings Commissioner v Commissioner of Police [2000] NZLR 277. P v D [2000] 2 NZLR 591.
Re McAllister [1990] NZAR 324. Rogers v TVNZ Ltd [2007] NZSC 91. R v Rowe [2005] 2 NZLR 833.
R v Williams [2007] NZCA 52.
Smits v Santa Fe Gold (unreported) Complaints Review Tribunal 12/99 (18 May 99). Television New Zealand Ltd v Rogers [2006] NZCA 432; [2007] 1 NZLR 156.
TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129. United Kingdom
Berkoff v Burchill [1996] EWCA Civ 564; [1996] 4 All ER 1008.
Campbell v Mirror Group Newspaper Ltd [2002] EWCA Civ 1373; [2003] 1 ALL ER 224. Charleston v News Group Newspapers Ltd [1995] UKHL 6; [1995] 2 AC 65.
Entick v Carrington [1765] EWHC KB J98. Stephens v Avery [1988] Ch 449.
Australia
The ABC v Lenah Game Meats Pty Ltd [2001] HCA 63.
United States
O’Brien v Brown [2001] DCR 1065, (US).
Legislation
Privacy Act 1993.
Broadcasting Act 1989.
Copyright Act 1994.
Crimes Act 1961.
Harassment Act 1997.
Harmful Digital Communications Act 2015. New Zealand Bill of Rights Act 1990.
Summary Offences Act 1981.
Books
Richard Best Social media and the law (New Zealand Law Society, Wellington, NZ, 2012).
Anupam Chander, Lauren Gelman and Margaret Jane Radin Securing privacy in the Internet age (Stanford Law Books, Stanford, Calif, 2008).
Harvey McGregor McGregor on damages (18th ed.. ed, Sweet & Maxwell, London, 2009). Helen Fay Nissenbaum Privacy in context (Stanford Law Books, Stanford, Calif, 2010).
Daniel J Solove Privacy, information, and technology (Aspen Publishers, New York, 2006). Daniel J Solove The digital person (New York University Press, New York ; London, 2006). Daniel J Solove The future of reputation (Yale University Press, New Haven, 2007).
Paul Roth Privacy law and practice (LexisNexis, NZ, 2007).
Stephen Todd, JF Burrows, WR Atkin, Cynthia Hawes and Ursula Cheer The law of torts in New Zealand (6th ed, Thomson Reuters, Wellington, 2013).
Journal Articles
Danielle Keats Citron “Mainstreaming Privacy Torts” (2010) 98 California Law Review 1805.
Danielle Keats Citron and Mary Anne Franks “Criminalising Revenge Porn” (2014) 49 Wake Forest Law Review 345.
Amanda Levendowski “Using Copyright to Combat Revenge Porn” (2014) 3 NYO Journal of Intll Prop & Ent Law 422.
Jacqueline D Lipton “We, the Paparazzi: Developing a Privacy Paradigm for Digital Video” (2009– 2010) 95 Iowa L Rev 919.
William L Prosser “Privacy” (1960) 48 Cal L Rev 383.
Paul M Schwartz and Daniel J Solove “PII Problem: Privacy and a New Concept of Personally Identifiable Information, The” (2011) 86 NYU L Rev 1814.
Daniel J Solove “Conceptualizing Privacy” (2002) 90 California Law Review 1087. Daniel J Solove “A Taxonomy of Privacy” (2006) 154 U Pa L Rev 477.
Daniel J Solove and Chris Jay Hoofnagle “A Model Regime of Privacy Protection” 2006 University of Illinois Law Review 357.
Rebecca Tushnet “How Many Wrongs Make a Copyright?” (2014) 98 Minnesota Law Review 2346.
SD Warren and LD Brandeis “The Right to Privacy” [1890] 4 Harv L Rev 193.
News Articles
David Clarkson “Errol Standeven has conviction quashed for taking photos of women exercising” (16 April 2015) Stuff.co.nz
<http://www.stuff.co.nz/national/crime/67796226/errol-standeven-has-conviction-quashed- for-taking-photos-of-women-exercising>.
Alan Duke “FBI, Apple investigate nude photo leak targeting Jennifer Lawrence, others” (2 September 2014) CNN.com <http://edition.cnn.com/2014/09/01/showbiz/jennifer- lawrence-photos/> .
Erica Goode “Victims Push Laws to End Online Revenge Posts” (23 September 2013) The New York Times <http://www.nytimes.com/2013/09/24/us/victims-push-laws-to-end-online- revenge-posts.html?pagewanted=all & _r=1> .
Jessica Roy “Revenge-porn King Hunter Moore Indicted on Federal Charges” (23 January 2014) Time.com <http://time.com/1703/revenge-porn-king-hunter-moore-indicted-by-fbi/> .
The Dominion Post “Naked photo sends jilted lover to jail” (13 November 2010) Stuff.co.nz
<http://www.stuff.co.nz/national/crime/4341191/Naked-photo-sends-jilted-lover-to-jail>.
Andrea Vance “MP Nick Smith caught out in his togs” (11 March 2011) Stuff.co.nz
<http://www.stuff.co.nz/national/politics/4755272/MP-Nick-Smith-caught-out-in-his-togs>.
“A New Bill in Florida Would Make Non-Consensual ‘Revenge Porn’ a Felony” Jezebel
<http://jezebel.com/5993942/a-new-bill-in-florida-would-make-non-consensual-revenge- porn-a-felony>.
Webpages
Danielle Keats Citron “Opinion: Make ‘revenge porn’ a crime in U.S.” (16 January 2014) CNN.com <http://edition.cnn.com/2013/08/29/opinion/citron-revenge-porn/index.html> .
John Edwards “A right to be forgotten for New Zealand?” (1 July 2014) Office of the Privacy Commissioner <https://www.privacy.org.nz/blog/right-to-be-forgotten/>.
Sam Grover “Harmful Digital Communications Act closes Privacy Act loophole” (6 July 2015) Office of the Privacy Commissioner <https://privacy.org.nz/news-and- publications/statements-media-releases/harmful-digital-communications-act-closes-privacy- act-loophole/>.
Sam Grover “Closing the revenge porn loopholes” (9 July 2015) Office of the Privacy Commissioner <https://privacy.org.nz/blog/hdca/>.
Charles Mabbett “Sharing images and not caring” (3 February 2015) Office of the Privacy Commissioner <https://privacy.org.nz/blog/sharing-images/>.
Parliamentary an d Governmental Materials
(25 June 2015) 706 NZPD 4830.
(30 June 2015) 706 NZPD 4850.
Department of Justice A Bill of Rights for New Zealand: A White Paper (1985). Law Commission Intimate Covert Filming (NZLC SP15, 2004).
Law Commission Privacy Concepts and Issues: Review of the law of Privacy Stage 1 (NZLC SP19, 2008).
Law Commission Invasion of Privacy: Penalties and Remedies: Review of the Law of Privacy Stage 3 (NZLC R113, 2010).
Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 (NZLC IP17, 2010).
Law Commission The News Media Meets “New Media”: Rights, Responsibilities and Regulation in the Digital Age (NZLC IP27 2011).
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