|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of Otago Law Theses and Dissertations |
Last Updated: 11 April 2024
“I [Did Not Want to Be] a Celebrity... Get Me Out of Here!”1
Modern Expectations of Privacy in Public Places
Maia Jean Ciara Childs
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otago
October 2023
1 This is a play words to the title of the reality programme I’m a Celebrity, Get Me Out of Here! (United Kingdom, Granada Productions, 2002–present).
Acknowledgements
This dissertation in written in the loving memory of Margot Childs.
Thank you to my amazing friends and family for the support you have given me during my time at law school.
I would also like to acknowledge the time and effort put in by my supervisor, Alex Latu, for helping me clarify my thinking on this topic. I am extremely grateful for your support.
Contents
Introduction 4 I The Purpose of the Publicity Tort 5
A The Theoretical Right to Choose Who
Knows What 5
B The Balancing of
Interests 9
II The Case for the Involuntary Subject 10
III The Current Extent of Legal Protection for the Involuntary Subject 18
Introduction
The last two decades have witnessed unprecedented changes in the technological climate and media landscape. Today, when individuals enter public places, they can be filmed, and this footage can be widely disseminated in media communication channels without their consent or even knowledge. The expectation of privacy one may have traditionally had in a public place is changing. It is, therefore, imperative the law keeps up.
This paper refers to those unlucky enough to have the private moments they experience in public disseminated in media footage as “involuntary subjects of media attention” (hereafter “involuntary subjects”). The paradigm example of an involuntary subject is the average citizen who appears in ride-along-style reality programmes.2 The involuntary subject may also appear in news or current affairs programmes, livestreams, YouTube videos, or even TikToks. Therefore, the reference to “media attention”, encapsulates everything from the television broadcast produced by the commercial media entity to the TikTok posted by an ordinary citizen.
Famous people are not excluded from being involuntary subjects either. While it is true that celebrities cannot claim a legal entitlement to privacy to the same extent and in all the same circumstances as an ordinary citizen,3 their public image should not be taken as waiving all of their rights to privacy. The justifications for protecting the involuntary subject’s privacy also apply to public figures.
The publicity tort is the key legal mechanism involuntary subjects can use to prevent their private moments from attracting unwanted media attention. This tort, through its elements and available defence, seeks to balance the individual’s right to privacy with the publisher’s right to freedom of expression.4 Since the establishment of the tort, however, technological
2 Over the last 30 years, many different iterations of this kind of programme have been made in New Zealand. Examples include Piha Rescue (New Zealand, South Pacific Video, 2001–2007), Motorway Patrol (Greenstone TV Ltd, 1999–present), Ten 7 Aotearoa (New Zealand, Screentime, 2001–2023) – formerly known as Police Ten 7, Border Patrol (New Zealand, Greenstone TV Ltd, 2004–2023), Dog Squad (New Zealand, Greenstone TV Ltd, 2011–present), Coastwatch (New Zealand, Greenstone TV Ltd, 2003–2012), and 111 Emergency (New Zealand, 2011–2012).Some of these programmes have been discontinued, but with the recent edition of Mt Hutt Rescue (United States, Bossanova, 2023) airing for the first time in 2023, the category appears to be still going strong.
3 In Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 at [121], the joint judgment held that a public figure’s reasonable expectation of privacy in relation to many areas of life will be correspondingly reduced as public status
increases.
4 Hosking v Runting above n 3, at [116], [130] per Gault P and Blanchard JJ and at [230]-[231] per Tipping J.
advancements have altered the way can media attention is given to a person’s presence in public.
This paper will consider whether the balance between the involuntary subject’s privacy and the defendant’s freedom of expression is correct in this modern context. While my focus is on the state of the law in New Zealand, I borrow academic and judicial discussions and developments from the United States and the United Kingdom because of their wider dialogue on the topic.
Part I explains how the purpose of the publicity tort is to balance the theoretical right to privacy with the countervailing interest of freedom of expression. Part II then sets up the case for the involuntary subject. It would not be sufficient to argue for the protection of the involuntary subject’s privacy without first explaining why the law ought to protect them in the first place. Therefore, this part will justify why the involuntary subject deserves to have the private moments they experience in public protected from unwanted media attention. Part III considers the extent to which the publicity tort’s current form and application grants this protection. It shows that the law can protect these people in the way they deserve, but there are areas of uncertainty that need to be carefully considered when the next case comes before the courts. Part IV identifies that the most concerning problem with the publicity tort is the uncertainty in how the offensiveness element is to be applied. However, instead on focusing on trying to remove the offensiveness limb, I argue it is more pressing that the element some analytical meaning in the interim.
I The Purpose of the Publicity Tort
In the 2004 case of Hosking v Runting, the Court of Appeal confirmed the existence of a tort of invasion of privacy in New Zealand.5 This part explains how the purpose of the tort is to turn the theoretical right to choose who knows what about oneself into a legally enforceable entitlement to privacy.
5 Hosking v Runting, above n 3.
Traditionally, it has been assumed that someone who goes out in public implicitly consents to having their privacy interfered with. In this way, the individual is said to have waived their right to privacy or voluntarily assumed the risk that their privacy may be lost.6 However, this is a problematic assumption in an age where technology enables information to be instantaneously disseminated to the world at large.
Andrew McClurg argues that risk can only be voluntarily assumed if the individual fully understands the risk but chooses to continue regardless.7 For this implied consent assumption to work in relation to involuntary subjects, the individual would have to assume the risk they may be filmed and that such footage could be widely disseminated, every time they go out in public. Although it is technically possible one could be recorded every time they leave the house, and it is technically possible this recording could then be disseminated in media communication channels, this risk is not typically considered.
The more technology develops, the more important it is that courts push back on this assumption. When speaking in an extra-judicial capacity, Winkelmann CJ noted the importance of incorporating a normative aspect when developing the law on privacy. She explained that if legal expectations of privacy are determined only by reference to the existing legal framework and current social values, any “retrograde development in society may be incorporated into that standard, thus feeding ... a spiralling downward of the zone of privacy”.8 In the current climate, with ever-increasing technological change, the importance of normative considerations cannot be understated. As technology develops, current social values, including the implied consent assumption, may quickly become outdated.
Any such implied consent must surely have limits.9 Even if it is valid to say that by appearing in public one has consented to being observed by those in the immediate vicinity, it would be absurd to suggest such consent extends to widespread media attention. Appearing in public surely cannot waive all one’s rights to privacy.10
6 Andrew J McClurg “Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places” (1995) 73 NCL Rev 989 at 1039; Elizabeth Paton-Simpson “Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places” (2000) 50 UTLJ 305.
7 McClurg, above n 6, at 1039.
8 Helen Winkelmann, Justice of the Court of Appeal “Sir Bruce Slane Memorial Lecture” (November 2018) at 17.
9 Paton-Simpson, above n 6, at 334.
10 Paton-Simpson, above n 6, at 305 at 346; McClurg, above n 6, at 1041.
When an individual is made an involuntary subject of media attention, they can no longer rely on traditional expectations of who may know the information disclosed about themselves in public places. The decision to choose who knows what about has been taken out of the individual’s hands. Instead, this decision is made by the disseminator of the footage. Therefore, the protection the involuntary subject needs from the publicity tort is an entitlement to expect whether their presence in a public place will be given media attention or not.
Conceptualising the theoretical right to privacy as a desire to choose who knows what about oneself is consistent with the literature. Although privacy is often described as an “elusive concept”11 that is “notoriously hard to define”,12 the ability to choose which people know what information about oneself seems to capture the general essence underpinning many proposed definitions.13
For example, the right to privacy has been defined as a “right to be let alone”,14 or the right to withhold, conceal, or keep separate some aspect of oneself.15 It has also been defined as the right to exclude others from information about oneself,16 or to “control knowledge about oneself”.17 Other commentators prefer terminology that conceives of the right as one which enables an individual to limit the access others have to their personal affairs.18
11 Law Commission Privacy: Concepts and Issues (NZLC SP19) at 8; N A Moreham “The Nature of the Privacy Interest” in N A Moreham and Mark Warby (ed) Tugendhat and Christie: The Law of Privacy and the Media (3rd ed, Oxford University Press, Oxford, 2016) 42 at 42. For another description to the same effect, see: Richard A Posner “The Right of Privacy” (1978) 12(3) Ga L Rev 393 at 393.
12 Tim Bain “The Wrong Tort in the Right Place: Avenues for the Development of Civil Privacy Protections in New Zealand” [2016] CanterLawRw 14; (2016) 22 Canta LR 297 at 299; Hyman Gross “The Concept of Privacy” (1967) 42 NYULR 34 at 34-35; Ruth Gavison “Privacy and the Limits of Law” (1980) 89 Yale LJ 421 at 424; Kirsty Hughes “A Behavioural Understanding of Privacy and its Implications for Privacy Law” (2012) MLR 75 806 at 806, 822; Graeme T Laurie Genetic Privacy: A Challenge to Medico-legal Norms (Cambridge University Press,
Cambridge, 2002) at 1; Law Commission, above n 11, at 10-11, 31, 190; Law Commission A Conceptual Approach to Privacy (NZLC, MP19) at 17..
13 See Patrick O’Callaghan Refining Privacy in Tort Law (Springer Berlin, Heidelberg, 2012) for a good summary of the definitional debate.
14 Winkelmann, above n 8, at 2.
15 Laurie, above n 12, at 6; Posner, above n 11, 393.
16 Bain, above n 12, at 299.
17 Charles Fried “Privacy [A Moral Analysis]” in Ferdinand David Schoeman (ed) Philosophical Dimensions of Privacy: An Anthology (Cambridge University Press, Cambridge, 1984). See also: Law Commission, above n 11, at 57; James Rachels “Why Privacy is Important” (1975) 4 Philos Public Aff 323; Winkelmann, above n 8.
18 Gavison, above n 12, at 428; Gross, above n 12, at 36; Hyman Gross “Privacy and Autonomy” in J Roland Pennock and John W Chapman (ed) Privacy and Personality (Routledge, place, 2017) 169 at 170.
The more recent definitions emphasise the subjective choice in this right. Nicole Moreham defines privacy as a state of “desired in-access” or “freedom from unwanted access”.19 Similarly, Kirsty Hughes conceptualises privacy as the space behind barriers constructed by the individual to exclude the scrutiny of others.20
Fundamentally, therefore, these definitions appear to represent some sort of choice the individual has about who knows what about them. When one is in control of the private aspects of their lives, they can choose who to disclose this information to. When someone separates, conceals, or excludes others from this private information, they presumably chose to do that. Even to limit access to oneself or erect privacy barriers,21 one must actively choose to do this.
Other definitions take the notion of choice even further. They suggest privacy is not merely about keeping information from others but also ensuring that when disclosed, this information is only used for the purpose the subject desired.22 Tim Bain has argued that we can determine how “private” a particular piece of information is by how widely the subject wishes for that information to be disseminated.23
Therefore, the literature is consistent with the theoretical right to privacy involving the subject’s choice to determine exactly who knows what about themselves. This theoretical right, however, does not automatically translate into a legal entitlement. This is because it includes all subjective desire an individual may have to keep certain aspects of their life private. As emphasised by Moreham, “an objective test will always be necessary” to turn the theoretical right into something legally enforceable.24 When this transformation occurs, some subjective desire is necessarily lost. One cannot have all their subjective choices protected by law. Otherwise, the legal entitlement would be unduly expansive.25 At the same time, however, the objective test must still afford a sufficient degree of protection to these desires.
19 N A Moreham “Privacy in the Common Law: Doctrinal and Theoretical Analysis” (2005) 121 LQR 628 at 636.
20 Under this conception, one’s privacy is interfered with when another penetrates a physical, behavioural or normative privacy barrier relied on by the individual. See: Hughes, above n 12, at 812-813, 836.
21At least in terms of the physical and behavioural barriers.
22 Daniel J Solove “Conceptualizing Privacy” (2002) 90(4) CLR 1087 at 1108; Law Commission, above n 11, at at 36. See also: Gross, above n 12, at 36.
23 Bain, above n 12, at 300.
24 N A Moreham “Why Is Privacy Important? Privacy, Dignity and Development of the New Zealand Breach of Privacy Tort” in Jeremy Finn and Stephen Todd (ed) Law, Liberty, Legislation: Essays in Honour of John Burrows QC (LexisNexis, Wellington, 2008) at 233.
25 N A Moreham “Privacy in Public Places” (2006) 65 CLJ 606 at 617.
Even with an objective check, the right to choose who knows what about oneself is by no means absolute.26 When a competing interest is stronger, the loss of privacy will be justified.27 In cases of involuntary subjects of media attention, the other major interest at stake is freedom of expression. This right protects both the freedom to convey and the freedom to receive information.28 Therefore, the freedom of expression of the disseminator and the audience of the publicised footage may be relevant.
Unlike privacy, freedom of expression is explicitly provided for in the New Zealand Bill of Rights Act 1990.29 However, this right is also not absolute.30 When establishing the tort, the joint judgment in Hosking recognised this tension by stating:31
Few would seriously question the desirability of protecting from publication some information on aspects of private lives. Few would [also] question the necessity for dissemination of information albeit about private lives, where matters of high public importance are invoked.
Tipping J agreed but cautioned that freedom of expression should not be relied on “as if it were some universal social panacea which must be seen as trumping other rights and values in most, if not all, circumstances”.32 Rather, a balance between both rights must be struck. 33
As per s 5 of the New Zealand Bill of Rights Act 1990, freedom of expression can be limited but only if such limit is demonstrably justified in a free and democratic society.34 Privacy can,
26 Hughes, above n 12, at 822; Law Commission, above n 11, at 11, 190; Law Commission A Conceptual
Approach to Privacy, above n 12 at 15, 35, 65.
27 Gavison, above n 12, at 457; Hughes, above n 12, at 814.
28 Law Commission, above n 11, at 186.
29 New Zealand Bill of Rights Act 1990, s 14.
30 Law Commission, above n 11, at 22, 187; Hosking v Runting, above n 3, at [113].
31 Hosking v Runting, above n 3, at [116].
32 At [231].
33 At [130] per Gault P and Blanchard J and [230] per Tipping J.
34 New Zealand Bill of Rights Act 1990, s 5.
therefore, limit freedom of expression.35 The purpose of the publicity tort is to find a balance between the two, where this limit is justified. In this way, it transforms the theoretical right to privacy into an enforceable legal entitlement.
The tort aims to achieve this balance in three ways. First, it requires the plaintiff to prove that they had a reasonable expectation of privacy in the given circumstance.36 Second, the publicity must be of a kind that the reasonable, objective person would find highly offensive.37 Lastly, it allows the defendant to defend an otherwise successful claim if the audience has a legitimate concern in the matter.38 Therefore, the involuntary subject only has a legal entitlement to choose whether the private moment they experience in public is given media attention after this entitlement passes an objective check and is balanced with freedom of expression.
II The Case for the Involuntary Subject
It cannot be assumed that the involuntary subject deserves to have their privacy protected in this way, even if it is qualified with an objective overlay and balanced with countervailing interests. There needs to be a sufficient reason to grant such legal entitlement in the first place. This part will argue that sufficient justifications exist for such protection.
Dignity and autonomy are often cited as the interests underpinning the theoretical right to privacy. For example, the Law Commission conceptualises privacy as a sub-category of two
35 It is important to note that freedom of expression and privacy are not always in conflict. In some circumstances, having privacy can assist freedom of expression (e.g. by facilitating autonomous thinking). The theoretical right to privacy overlaps with freedom of expression in this way. See: Law Commission, above n 11, at 54.
36 Hosking v Runting, above n 3, at [117] per Gault P and Blanchard J and [249] per Tipping J; Hyndman v Walker
[2021] NZCA 25, [2021] 2 NZLR 685 at [32]; Peters v Attorney-General [2021] NZCA 355, [2021] 3 NZLR 191
at [90].
37 Hosking v Runting, above n 3, at [117] per Gault P and Blanchard J. Note that at [256], Tipping J stated he would have preferred the threshold to be a “substantial level of offence rather than a high level of offence”. The joint judgment’s formulation of the “highly offensive” standard was confirmed in Hyndman v Walker, above n 36, at [32] and Peters v Attorney-General, above n 36, at [99].
38 Hosking v Runting, above n 3, [129] per Gault P and Blanchard J and [257] per Tipping J; Hyndman v Walker, above n 36, at [36]; Peters v Attorney-General, above n 36, at [101].
interconnected values: the “autonomy of humans to live a life of their choosing” and “the equal entitlement of people to respect”.39
The notion of “equal entitlement of respect” can be traced back to the categorical imperative of Immanuel Kant. Kant proposed that all persons have intrinsic value and ought to be treated never merely as a means, but as ends in themselves.40 This suggests that when a person is used to affect some other end, their intrinsic value is disrespected.
Although Samuel Warren and Louis Brandeis are often associated with the conception of privacy as “the right to be let alone”, a closer reading of their article suggests they were more concerned with protecting the “inviolate personality”.41 Edward Bloustein suggests that all interferences with privacy are an affront to the inviolate personality.42 He claims the real concern when privacy matters are given publicity is not that the public has come to view the individual in a particular way, but rather, that “some aspect of [the individual’s] life has been held up to public scrutiny at all”.43 The fundamental wrong is that the choice being taken out of the individual’s hands. Jeffery Reiman makes the same point by arguing that when privacy is lost, it conveys to the individual that they no longer belong to themselves.44
The “autonomy of humans to live a life of their choosing” is necessarily connected to their entitlement to respect.45 Stanley Benn explains that to respect someone as a person is to see them as “actually or potentially a chooser ... attempting to steer [their] own course through the world” and to take account of how our decisions may affect that chooser.46
39 Law Commission, above n 11, at 10, 54. Peter Cane even goes as far and classing privacy as a “dignitary
tort”. See: Peter Cane, The Anatomy of Tort Law, Hart Publishing, 1997, at 71-72. Also, see generally: Stanley I Benn “Privacy, Freedom, and Respect for Persons” in J Roland Pennock and John W Chapman (ed) Privacy and Personality (Routledge, place, 2017) 1; Edward J Bloustein “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser” (1964) 39 NYU L Rev 962; Gavison, above n 12; Moreham, above n 26; Gross
“Privacy and Autonomy”, above n 18, at 169; N A Moreham “Abandoning The “High Offensiveness” Privacy Test” (2018) 4 CJCCL 1; Alan E Westin Privacy and Freedom (Bodley Head, London, 1970).
40 Immanuel Kant Groundwork of the Metaphysics of Morals (Mary Gregor (ed), Cambridge University Press, Cambridge, 1997) at 4:429.
41 Samuel D. Warren and Louis D. Brandeis “The Right To Privacy” (1890) 4(5) Harv L Rev 193 at 205.
42 Bloustein, above n 39, at 978.
43 At 979.
44 Jeffrey H Reiman “Driving to the Panopticon: A Philosophical Exploration of the Risks to Privacy Posed by the Highway Technology of the Future” 11 Santa Clara High Tech LJ 27 at 39.
45 In fact, in Aharon Barak has described dignity as “freedom of choice”. See: Aharon Barak The Judge in a Democracy (Princeton University Press, Princeton, 2006) at 86.
46 Benn, above n 39, at 8-9.
When media attention is given to the private moment involuntary subject experiences in public, it is often for both entertainment and commercial ends. In this way, the disseminator puts their interests, and their audience’s interests, above those of the subject.47 As Moreham points out, it does not matter whether the disseminator is doing this to “serve the public interest” or simply for their own benefit.48 Either way, they have taken the choice of whether the involuntary subject wants to be seen by the world away from the subject themselves. This is a failure to respect the subject’s inherent worth as an autonomous individual.
The involuntary subject can be contrasted with the streaker at a sports match or the topless protestor on Parliament grounds.49 The difference is that the streaker and protestor have intentionally brought media attention to themselves.50 As the choice to disclose the private aspects of their lives has not been taken away, their dignity and autonomy is not disrespected.
Privacy’s role in respecting the dignity and autonomy of an individual has also been recognised by the courts. In Hosking, Tipping J stated that “it is of the essence of the dignity and personal autonomy ... that some aspects of [people’s ] lives should be able to remain private if they so wish”.51 Then, in Henderson v Walker, Thomas J stated that the purpose of the publicity tort is to provide “effective protection to individuals against violations of their autonomy and dignity.”52 More recently, the Court of Appeal has stated that “privacy is essential to human
47 Moreham, above n 11, at 68.
48 At 68.
49 For examples of media attention given to streakers at sports matches see: Ruby Shaw “Nude streaker interrupts Alexandra bowls tournament” The New Zealand Herald (online ed, New Zealand 28 February 2023); “Streaker in wheelchair halts Auckland football match” 1 News (online ed, New Zealand, June 19 2023); Dylan Terry “Big Down Under: Watch moment streaker runs naked along Australia GP track before he is tackled by security” The US Sun (online ed, New York, April 5 2023). For examples of media attention given to topless protestors see: “Covid 19 Omicron: Naked protestor ‘traumatised’ by police actions at parliament” The New Zealand Herald (online ed, New Zealand, 11 February 2022); Ben Graham “Topless vegan activist slams ‘sexist’ cop request during Peth protest” The New Zealand Herald (online ed, New Zealand, 24 May 2022); Crystal Wu “Extinction Rebellion Protestors: Topless women lock themselves to UK Parliament to protest against climate change” Newshub (online ed, New Zealand, 11 September 2020); Jessica Elgot “Semi-naked climate protestors disrupt Brexit debate” The Guardian (online ed, London, 1 April 2019).
50 It should be noted that sometimes public figures may be deemed to have brought media attention on
themselves. Presumably, this would be why in Hosking v Runting, above n 3, at [121], Gault P and Blanchard J found that public figures may have a reduced expectation of privacy. Importantly, however, in the same paragraph, the joint judgment emphasised that “the right to privacy is not automatically lost when a person is a public figure”. Public figures are not necessarily excluded from having their privacy protected just because they are public figures. See: Peters v Attorney-General, above n 36; Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457.
51 Hosking v Runting, above n 3, at [239]. This statement has been referred to by subsequent courts. See:
Henderson v Walker [2019] NZHC 2184 at [218].
52 Henderson v Walker, above n 51, at [216].
dignity and autonomy”53 and that “it is generally accepted that the tort is founded on a person's inherent dignity”.54
Real-life examples show that media personnel have failed to respect the dignity of involuntary subjects. The Leveson Inquiry found an apparent profession-wide culture of indifference towards subjects of media attention. One interviewee, who had been the victim of a stabbing, stated that although the coverage of their story was largely done in a compassionate way, the media personnel had still “behaved irresponsibly and without regard to [their] privacy and dignity”.55 This perspective was consistent with other interviewed victims.56 Although it does not follow that media personnel will always disrespect the dignity of the individual, his example illustrates the risk associated with this type of work.
The same sentiment is evident in New Zealand. Family members of those who died in the Pike River explosions were the subjects of extensive media attention in the aftermath of the disaster. They felt the media had treated them as something to be looked at, photographed and reported on.57 They felt no more than “just a story”, and that the journalists failed to consider that they were clearly suffering deeply.58
Understanding the instrumental impact that preserving one’s choice has on their dignity and autonomy helps justify why involuntary subjects deserves privacy protection. Bain has argued that focusing on dignity and autonomy frees us from the assumption that privacy can only exist in certain locations.59 Rather than associating privacy with particular spaces,60 the focus shifts to the extent that someone is being used for another’s benefit.
53 Peters v Attorney-General, above n 36, at [88].
54 Hyndman v Walker, above n 36, at [31].
55 Justice Leveson The Leveson Inquiry: An Inquiry into the Culture, Practices and Ethics of the Press (The Stationary Office, London, 2012) at 603.
56 At 603.
57 N A Moreham and Yvette Tinsley “Media Intrusion into Grief: Lessons from the Pike River Mining Disaster” in Andrew T Kenyon Comparative Defamation and Privacy Law (Cambridge University Press, Cambridge, 2016) 115 at 127.
58 Moreham and Tinsley, above n 57, at 127-126, 128.
59 Bain, above n 12, at 301.
60 The implied consent assumption is grounded in the idea that there can be no privacy in a public place.
On a purely theoretical level, a person should never be purely as a means to another’s end.61 However, as noted, the legal entitlement to privacy does not fully protect the purely theoretical right. Nonetheless, thinking about dignity and autonomy when developing privacy law can help us ensure that enough of an individual’s subjective desire to choose who knows what about themselves is protected to prohibit undue treatment of them as a means to another’s end.
Protecting choice does more than respect the autonomy and dignity of the involuntary subject. Protecting choice also has a consequential value because it enables individuals to appropriately modify their behaviour according to the circumstances.
It is widely accepted in privacy literature that people modify their behaviour according to who is observing.62 This is because behaviour appropriate for one context may be inappropriate in another.63 Moreham captures this idea when stating that:64
...[I]t does not follow from the fact that an individual is happy for some aspects of him- or herself to be observed by some members of the public in some contexts, that he or she must be prepared to have all aspects of him- or herself observed by the public at large in any context.
When one’s audience is not as expected, they may reveal information or behave in a way they would not have otherwise. This can be seen in a young girl’s reaction to being filmed and broadcast in an episode of Piha Rescue.65 Although she was clearly to be observed by other beachgoers, she did not want the fact she was wearing a bikini and associating with male friends to be conveyed to her religious family.66 This example shows how people act in different ways depending on the audience, even if they are not trying to conceal anything objectively wrong.
61 This is effectively the premise of Kant’s categorical imperative. See the discussion above in Part II(A)(1). See also: Kant, above n 40, at 4:429.
62 See generally: Gross “Privacy and Autonomy”, above n 18, 173; Moreham, above n 27, at 620. See also: Hughes, above n 12; Paton-Simpson, above n 6; Reiman, above n 44.
63 Gross “Privacy and Autonomy”, above n 18, at 173.
64 Moreham, above n 25, at 620.
65 Piha Rescue, above n 2.
66 Mobius Research and Strategy The Real Deal: Experiences of and Attitudes Towards Reality TV (Broadcasting Standards Authority, 1 September 2011) at 31-32.
People will also adjust their behaviour based on the predicted size of their audience. As Catlin Wilson and Daniel Nilsson suggest, although I may be happy for my 400 Facebook friends to see me wearing only a bikini, I would likely “be alarmed if ... the same photograph [appeared] on a billboard in Asia”.67 Individuals make decisions about their actions, based on what they reasonably anticipate their audience size and composition to be. When this size is amplified or the composition is changed due to unwanted or unknown media attention, the involuntary subject deserves the law’s protection. Otherwise, individuals lose the opportunity to exercise “appropriate critical restraint” in how they appear.68 If the law does not appropriately protect the privacy of involuntary subjects, those individuals who want to maintain some choice of who knows what about themselves will be required to take unreasonable precautions.69 They will be encouraged to be overly cautious and constantly “on guard”.70 They may act public as if the whole world is always watching, even though the risk of media attention may never eventuate.71
Reiman goes as far as saying that a lack of privacy is a form of social control. He compares a lack of privacy protection to Jeremy Bentham’s Panopticon prison design. Just as the prison works when no guards are present, Reiman suggests thst people will alter their behaviour simply out of fear that they may end up an involuntary subject.72
Furthermore, this type of behaviour modification can have serious negative implications for society. From a public health perspective, expecting people in an emergency to be overly cautious about who is watching is not desirable. For example, the victim of a car accident should not have to make sure they are acting in a way they would be comfortable with the whole world scrutinising.
Medical literature confirms that patients are less likely to disclose their full medical history if cameras are present.73 Jennifer Moore explains how non-disclosure in this way can compromise the care given by health professionals.74 Therefore, to ensure the health and safety
67 Catlin Wilson and Daniel Nilsson “Protecting our Person Sphere” (2013) NZLJ 8 at 10.
68 Gross “Privacy and Autonomy”, above n 18, at 173.
69 Paton-Simpson, above n 6, at 313.
70 Hughes, above n 12, at 813.
71 Paton-Simpson, above n 6, at 346.
72 Reiman, above n 44, at 28.
73 Jennifer Moore “Traumatised Bodies: Towards Corporeality in New Zealand’s Privacy Tort Law Involving Accident Survivors” (2011) 14 NZULR 387 at 393.
74 Moore, above n 73, at 394.
of New Zealanders, the law should protect the privacy of involuntary subjects from unwanted media attention.
This idea of behaviour modification links directly to the problems with the implied consent assumption. Given how crucial it is for individuals to be able to reasonably anticipate their audience, how can we take the involuntary subject’s mere presence in public as implicit consent to feature in media footage? Unless the disseminator has informed the subject beforehand that they are being recorded and for what purpose, there is no opportunity for the subject to tailor their actions accordingly.
When Warren and Brandeis wrote their seminal 1890 article on privacy, they were concerned with the increasing number of “mechanical devices” and their ability to take “instantaneous photographs”. They felt these devices posed a threat that what was “whispered in the closet” would soon be “proclaimed from the housetops”.75 Their concern was that new technologies would allow for the instant and widespread dissemination of information normally few would have known. In 1995, McClurg revisited the fears of Warren and Brandeis, suggesting their concern with “mechanical devices” was looming even larger.76 McClurg was particularly concerned with the camcorder, stating it had the potential to become "the greatest leveller of human privacy ever known."77
The state of technology today is vastly different to what it was in 1890 and 1995. One can only wonder what Warren and Brandeis would think of the current technological climate. Two areas of modern technological innovation pose a particular threat to the involuntary subject of media attention: visual and audio disclosures and modern communication technologies.
There is an obvious difference between observing someone in a public place and recording the encounter. Such is evident from the adage that “a picture is worth a thousand words”.
75 Warren and Brandeis, above n 41, at 195.
76 McClurg, above n 6, at 1017.
77 At 1021.
Colloquially, this means that a single image can convey far more information than written text. The implication for privacy law is that the disclosure of an image can reveal far more private information than what could be disclosed through a written text. This view was expressed by McGrath J in the Supreme Court judgment of Rogers v Television New Zealand, where he said, “it is well recognised that, in general, photographic images may contain significantly more information than textual description.”78 Yet, if a picture is “worth a thousand words”, what then of a video? More specifically, what then of a lengthy, high-definition visual and audio recording available on a streaming platform to be viewed at the audience’s leisure?
Visual and audio disclosures can make the interference with one’s privacy significantly worse. Photographs and videos do not have the same temporal limitations as real-life observation.79 A bystander’s memory will fade over time, but photographs and videos can exist indefinitely.80
The permanence of visual and audio recordings also means information can be revealed that “would not be noticed by the transitory observation with the naked eye”.81 The ability to look at an image for an extended period means the observer can pick up more details.82 Moreover, when disclosed to others these people can view the moment as if they too were there when the recording was made. This is in contrast to a textual description or sketch, where the audience can only view the event through the “filter” of the writer or artist.83
The issue of permanence is compounded in the modern climate. Even if one attempts to delete something from the internet, one can never be certain it has been removed for good. Modern communication technologies allow audiences to download, screen record and record something from one device (e.g. a laptop) onto another device (e.g. a phone). It is common for audiences to take these recordings, edit them, and then further disseminate them on social media channels. Modern communication technologies mean the recording is not simply a permanent copy of
78 Rogers v Television New Zealand Ltd [2007] NZSC 91, [2008] 2 NZLR 277 at [101]. See also: Campbell v MGN Ltd, above n 50, at [72] per Lord Hoffmann.
79 McClurg, above n 6, at 1041-1042.
80 Paton-Simpson, above n 6, at 328; McClurg, above n 6, at 1042.
81 McClurg, above n 6, at 1042.
82 Paton-Simpson, above n 6, at 329. Also see: Rogers v Television New Zealand Ltd, above n 78, at [101] per McGrath J where it was held that sequential images “often portray graphically intimate and personal details of someone’s personality and demeanour”, making them especially more revealing of information.
83 Moreham, above n 25, at 614.
the event for the cameraman. Once posted online, the recording can become permanently available to the world at large.
The ability to continuously disseminate content through modern technology also means content can be disclosed to a much larger group than those who witnessed the event in real life.84 Moreover, information can be disclosed to a differently constituted group as well.85 It is worth noting that today, anyone has the potential to post content that goes viral. Apart from the luck of the algorithm, nothing is stopping you or me from posting a TikTok that receives millions of views. Although a following may help the disclosure spread quickly, this is by no means a pre-requisite.
Therefore, modern communication technologies aggravate the concerns about being able to modify one’s behaviour according to one’s audience. If there is inadequate legal protection for one’s expectations of privacy in a public place, how can one ever be sure that their audience will not end up being the entire world?
It has been suggested that the involuntary subject has no grounds to complain about extra viewership, because those viewers could have witnessed the moment themselves had they chosen to be there. Moreham has rightly countered that this argument conflates “theoretical accessibility” and “actual access”. Consistent with the discussion above on behaviour modification, Moreham explains that people tailor their behaviour according to the audience they believe to be observing them at the time. Importantly, this audience is not the same as those who could “theoretically be there if they wanted to be”.86 Should individuals have to tailor their behaviour for the theoretical audience? Doing so would place a heavy burden on the individual who wants to maintain a degree of choice over who knows what about themselves.
III The Current Extent of Legal Protection for the Involuntary Subject
The law protects an individual’s entitlement to choose whether private aspects of their lives are publicised to others through the publicity tort. This tort purports to correctly balance the
84 McClurg, above n 6, at 1042-1043; Paton-Simpson, above n 6, at 328.
85 McClurg, above n 6, at 1043.
86 Moreham, above n 25, at 619.
individual’s theoretical right to privacy and the disseminator’s right to freedom of expression.87Therefore, the legal entitlement is more limited than the individual pure subjective choice.
This part explains the extent to which the current form of the tort and the application of its elements and defence appropriately balance the countervailing interests in today’s technological climate.
For there to be a legally enforceable breach of privacy, the majority in Hosking required two elements to be met.88 First, the plaintiff must establish they had a reasonable expectation of privacy in that situation. Second, they must prove that a reasonable objective person would have found the publicity highly offensive.89 The disseminator is also able to defend an otherwise successful claim if they can prove the matter is of legitimate concern to the audience.90 In this way, the subjective desire to choose who knows what about oneself (the theoretical right to privacy) becomes a legal entitlement to expect a reasonable degree of privacy. I discuss each element and the defence in turn.
In Hosking, it was established that the plaintiff must first prove that they had a reasonable expectation of privacy in relation to what was or is threatened to be publicised.91 Although the joint judgment was clear that there is no simple test for determining what is private, it was held that things already known by some people can still warrant legal protection.92
87 Hosking v Runting, above n 3, at [116], [130] per Gault P and Blanchard JJ and at [230]-[231] per Tipping J. 88 Note that in Rogers v Television New Zealand Ltd, above n 78, at [25] per Elias CJ, [99] per McGrath J (speaking for the majority), and [144] per Anderson J, the Supreme Court did not expressly endorse the Hosking formulation of the tort. The case was, however, decided on another point of law.
89 Hosking v Runting, above n 3, at [117] per Gault P and Blanchard J and [249] per Tipping J.
90 At [129] per Gault P and Blanchard J and [257] per Tipping J.
91 At [117] per Gault P and Blanchard J and [249] per Tipping J. It must be noted that the joint judgment used the terminology of “private facts” when establishing the tort. This terminology, however, obscures what is really at issue. At [249], Tipping J preferred to “information” or “material”. This paper uses the term “information” a well as “moments”, “presence” and “aspects of one’s life” as they more precisely encapsulate what the involuntary subject may have a reasonable expectation over. See Part III(A)(1) for a discussion of the shift in focus from the information itself to a more contextual approach.
92 At [119].
The joint judgment held that generally, there is no right to privacy when a person is photographed in a public place. The judges did, however, go on to say that in “exceptional cases” a person may be able to bring a claim in relation to any additional publicity.93
In 2006, a this exception was tested in a case before the High Court.94 Gary and Penelope Andrews had been involved in a serious crash that left them trapped inside their vehicle.94 The damage from the crash was so severe that firefighters and their “jaws of life” equipment were needed to remove the couple.95 The entire rescue was recorded, this footage edited and then broadcast on national television in an episode of Firefighters.96The programme included significant visuals of the rescue. Audio captured comments by Mrs Andrews referencing her concern for her husband’s welfare, their marital issues and her attempts at weight loss. Both plaintiff’s names were also repeated numerous times throughout the broadcast.97 The Andrews’ participation in the programme was involuntary. No attempt was made to obtain their consent to the filming or subsequent broadcast. Both plaintiffs claimed they were not even aware they were being filmed at the time.98
Allan J acknowledged that the accident had occurred in a public place. For this reason, he held that the Andrews could not have reasonably expected their conversations and private moment would not be observed by those attending the scene.99 However, Allan J found that this was one of the “exceptional cases” alluded to by the judges in Hosking, where the plaintiff may still have a reasonable expectation that the moment they experience in public will not be given any additional publicity.100 The Andrews were reasonably entitled to expect their conversations and private moment would not be heard or seen beyond those in earshot.101
More recently, two Court of Appeal judgments seem to suggest that the assessment under the first limb is not simply whether the plaintiff was reasonably entitled to expect that aspect of
93 At [164].
94Andrews v Television New Zealand [2009] 1 NZLR 220.
95 At [8].
96 At [12], [63].
97 “Season 1, Episode 8” Firefighters (New Zealand, Greenstone TV Ltd, 2004).
98 At [65].
99 At [61].
100 At [31].
101 At [66].
their life would remain private, but that they were reasonably entitled to expect that private information would not be disclosed in the particular way the defendant disclosed it. The 2021 judgments of Hyndman v Walker102 and Peters v Attorney-General103 appear to accept that a broader contextual approach is needed to determine whether a plaintiff is entitled to their expectation of privacy.
Part of this apparent acceptance of a broader contextual assessment can be observed through the increased recognition of the approach taken in Murray v Express Newspapers Plc.104 In that case, the English Court of Appeal held that the reasonable expectation inquiry is a broad one which requires all circumstances to be taken into account.105 The Murray judgment lists seven factors relevant to this assessment, in a passage cited by both Hyndman and Peters.106 These factors are:107
(1) the attributes of the claimant;
(2) the nature of the activity in which the claimant was engaged;
(3) the place at which it was happening;
(4) the nature and purpose of the intrusion;
(5) the absence of consent and whether it was known or could be inferred;
(6) the effect on the claimant; and
(7) the circumstances in which and the purposes for which the information came into the hands of the publisher.
The contextual approach accepts the need for a normative aspect in the inquiry.108 Considering all the surrounding circumstances makes the court ask whether privacy expectations should be protected in the case in front of them. In Peters, the Court explained that even if it is common practice for the disseminator to act as they did, this should not determine the lawfulness of their actions.109 As Moreham explains, the test is “not a factual question about what potential
102 Hyndman v Walker, above n 36.
103 Peters v Attorney-General, above n 36.
104 Murray v Express Newspapers Plc [2008] EWCA Civ 446, [2009] Ch 481.
105 At [36].
106 Hyndman v Walker, above n 36, at [65]-[66]; Peters v Attorney-General, above n 36, at [109] citing Murray v Express Newspapers Plc, above n 104, at [36].
107 Murray v Express Newspapers Plc, above n 104, at [36].
108 Peters v Attorney-General, above n 36, at [107]. See also: Hyndman v Walker, above n 36, at [72], where the Court of Appeal discusses Moreham’s view that the reasonable expectation test has a normative element, and then at [73] the Court states “there is a good deal of force in these criticisms”. These ideas were also cited in Henderson v Walker, above n 51, at [201]-[202].
109 Peters v Attorney-General, above n 36, at [107].
privacy-infringers can or usually do in the situation in question”.110 The test is about whether the plaintiff should be entitled to expect the law’s protection in that circumstance. As noted by Winkelman CJ, recognising a normative aspect in the inquiry prevents the risk that reasonable expectations will be determined by the “retrograde development” of social values.111
Although the Murray factors were cited in Hyndman when discussing the potential future of the tort,112 they were given a stronger endorsement in Peters.113 In Peters, the Court agreed the passage provides a “helpful reminder” of the broad contextual nature of the test as well as providing some examples of what to consider.114
Importantly, the Court stressed that “it would be artificial to separate the inquiry into the private nature of the information from an inquiry into the expectations that a reasonable person would have about how that particular information could appropriately be used”.115 The Court explains that the reasonable expectation limb is designed to establish exactly what is being protected, and exactly what that thing is being protected from. In this way, the assessment is necessarily contextual.116 The question is whether the plaintiff should be entitled to expect the law to protect their privacy in relation to a specific activity, from a specific type of disclosure.117
Therefore, an individual may have different levels of expectation over the same private aspect of their lives. An individual may have a reasonable expectation that the moment they experience in a public place will not be filmed and shown to the world at large, but this does not necessarily cover disclosure to a smaller group.118 Similarly, one may have a reasonable expectation in relation to a photograph, but not in relation to a textual description of what the photograph depicts.119
110 N A Moreham “Unpacking the Reasonable Expectation of Privacy Test” (2018) 134 LQR 651 at 654.
111 Winkelmann, above n 8, at 17. See also the discussion in Part I(A).
112 Hyndman v Walker, above n 36, at [65]-[66].
113 Peters v Attorney-General, above n 36, at [109]-[110].
114 At [110].
115 Peters v Attorney-General, above n 36, at [110].
116 At [108]. This is why using the term “private facts” is no longer “precise”.
117 At [107]-[108], [169].
118 At [170]-[171].
119 Peters v Attorney-General, above n 36, at [108]. See also: Campbell v MGN Ltd, above n 50, at [72] per Lord Hoffmann and [121] per Lord Hope.
This contextual approach is consistent with how the Broadcasting Standards Authority (BSA) deals with whether a reasonable expectation of privacy arises in cases involving involuntary subjects of media attention. For example, in one decision, although the filming for an episode of Dog Squad120occurred in a public place, the Authority found the plaintiff was still entitled to expect their private moment would not be publicised on nationwide television.121
Part of the Andrews decision could also be seen as consistent with the broad contextual approach. Allan J found that the Andrews had a reasonable expectation that their private moment would not be publicised to the world at large, but they could not reasonably have expected those in the immediate vicinity would not hear or see them.122
The Hosking judgment is less consistent with the broad contextual approach. In Hosking, the Court held that the photographs disclosed no more than “what could have been observed by any member of the public in Newmarket on that particular day”.123 The Court felt that because nothing private was captured in the photographs themselves, the plaintiffs had no reasonable expectation of privacy.124 This conclusion, however, only accounts for the contents of the photographs and not the broader circumstances of the situation. In this case, the photographs were taken of celebrity personality Mike Hosking’s twin daughters.125 They were not random people who just happened to be on the street when the photograph was taken. The girls were specifically targeted because the magazine wanted to publish images of their faces.126 The Court also overlooked the wide circulation these photographs would receive. These circumstances should have been considered, given the wide circulation of the girls’ faces would have likely led to increased media attention after the disclosure.127
120 Dog Squad, above n 2.
121 DS v Television New Zealand Ltd BSA 2011-144, 17 July 2012 [1],[20]-[23].
122 Andrews v Television New Zealand, above n 94, at [62], [66].
123 At [164].
124 At [164].
125 At [1].
126 At [1], the joint judgment notes that the photographed was commissioned by the magazine to take the photos of the girls. English courts have distinguished between involuntary subjects who incidentally appear in the background of media footage and those who are deliberately targeted. See Campbell v MGN Ltd, above n 50, at [123].
127 This was indeed the concern that led Mr and Mrs Hosking to bring the claim on behalf of their daughters. See: Hosking v Runting, above n 3, at [161]. Suggestions for how the intrusive consequences of media attention can be incorporated into the tort as discussed below in Part IV(C)(1).
In the case of Murray, the English Court of Appeal also made this criticism of Hosking. The Murray judgment felt the fact that the parents had made an effort to keep their children away from the public eye should have been considered.128 Similarly, the fact that the plaintiffs129 would not have consented to the dissemination if the publisher had asked, was also relevant.130 The Court emphasised that merely taking photos may well be unobjectionable, but when the wider circumstances are considered, a reasonable expectation may arise. For this reason, the Court held that there should be no general rule that certain acts do not attract a reasonable expectation of privacy.131
It is not only famous people who are intentionally targeted. Many ordinary people are specific targets of media attention when they are victims of crime, accident survivors or the grieving families of those killed in tragedies. For example, the families of the Pike River victims were subject to constant media attention in the months after the event. As Yvette Tinsley and Moreham explain, this was not a situation where the families were caught up in the general reporting of a newsworthy event.132 The grief these people were experiencing was the story.133
The English Court of Appeal further criticised that the Hosking judgment did not seem to consider the claim from the perspective of a reasonable child.134 Rather, they just assessed the claim from the perspective of the average reasonable person.135 Who the claimant is, and the position they are in, is a relevant contextual factor that ought to be considered.136
The apparent acceptance of the wide contextual approach in New Zealand benefits the involuntary subject. This is because the assessment considers whether the subject could have
128 Murray v Express Newspapers Plc, above n 104, at [50].
129 Technically, the parents brought the claim on the girls’ behalf given they were very young children at the time.
130 At [50].
131 At [56]. This can be contrasted with Hosking v Runting, above n 3, at [164], which suggested that generally, no reasonable expectation of privacy would arise in a public place.
132 See: Malskaitis v TVWorks Ltd BSA 2011-039, 8 July 2011 for an example of subjects caught up in the general news coverage of the Christchurch earthquakes in 2011.
133 Moreham and Tinsley, above n 60, at 120. This was especially so in the Pike River context because the media were unable to get images of inside the mine.
134 Or the perspective of a reasonable child. See: Murray v Express Newspapers Plc, above n 104, at [52] criticising Hosking v Runting, above n 3, at [165].
135 Murray v Express Newspapers Plc, above n 104, at [52] criticising Hosking v Runting, above n 3, at [165]. 136 The first Murray factor is the “attributes of the claimant”. See: Murray v Express Newspapers Plc, above n 104, at [36].
reasonably expected their presence in a public place would not be disclosed in the way it was or is threatened to be. The assessment can consider numerous factors that would account for the changes in the technological climate and media landscape. Such factors may include what the subject was doing in the public place and why, the length of the footage, whether the footage had any sound, and whether the involuntary subject was the central focus or simply appeared in the background. It allows judges to consider who disseminated the footage, why they did so, whether the plaintiff was deliberately targeted, how many people viewed the footage, and the potential for further dissemination. The identity of the involuntary subject and whether this has any bearing on their expectation of privacy, as well as any evidence of explicit or implied consent, can also be considered.
Under the broad contextual approach, it would appear that the expectation of privacy is to be assessed at the time of the disclosure. This is because the expectation is related to whether the plaintiff was entitled to expect that aspect of their life would not be disclosed in the way it was. Previously, there has been some disagreement on this issue. Cases such as Andrews implicitly suggest that the expectation of privacy is to be assessed at the time of publication.137 In Rogers, however, three judges of the Supreme Court felt that the plaintiff must have had a reasonable expectation at the time the recording was made.138 Under the contextual approach, however, the issue need not be debated. The plaintiff may well have had a reasonable expectation that they would not be recorded at all, as well as a reasonable expectation that their private moment would not be given media attention.139 The contextual approach allows the expectations at both points of time to be considered.
Another area of uncertainty in which the contextual approach may assist is whether the plaintiff needs to be identifiable in the footage. In the case of L v G, which pre-dates Hosking, identifiability was the central issue.140 In this case, Abbott J found the plaintiff’s privacy had been breached despite only being identifiable through a distinctively patterned top.141 The judge felt identifiability was relevant to the assessment of damages, but not to the claim
137 Andrews v Television New Zealand, above n 94, at [30].
138 Rogers v Television New Zealand Ltd, above n 78, at [48] per Blanchard J, [63] per Tipping J and [104]-[105] per McGrath J. Note that Tipping J seemed to think Mr Rogers would not have had a reasonable expectation either at the time of recording nor the time of the publication.
139 For this reason Paul Wragg has argued for a combined tort. See: Paul Wragg “Recognising a Privacy- Invasion Tort: The Conceptual Unity of Informational and Intrusion Claims” (2019) 78 CLJ 409 at 435. This is discussed further in Part IV.
140 L v G [2002] DCR 234.
141 At 6.
itself.142 In Andrews, however, Allan J stated that in most circumstances, the plaintiff would need to show they are identifiable in the publication. He noted that identifiability could be indirect, but the class of persons who would need to identify the plaintiff would be those who know the plaintiff but not the information being disclosed.143 Allan J did, however, leave open the possibility of a claim being successful without identification. This was not an issue on the facts, however, as Allan J found the pixelation of Mrs Andrews was not always sufficient to obscure her identity.144 Moreover, Mrs Andrews’ voice remained unaltered, and both plaintiffs were constantly referred to by their first names.145
The issue of identifiability would surely be part of the contextual assessment under the first limb of the tort. The point of the contextual assessment is that no specific rules should bar someone from bringing a claim.146 Rather, the judge must look at the overall picture to see whether a reasonable person would have expected privacy in the circumstances. Therefore, it would seem illogical to have identifiability as a threshold test.147 Instead, a lack of identifiability should just weaken the overall reasonableness of the expectation.
Whether the blameworthiness of the plaintiff has any bearing on their entitlement to legal protection could also be a factor considered in the assessment. Although the New Zealand courts have not considered this issue in depth yet,148 Allan J suggested in Andrews that the culpability of the plaintiff may be relevant.149 However, it was “undesirable to lay down a general principle”150 because the character and seriousness of any such blameworthy conduct will be different in each case.151 With the contextual approach, however, no general principle is needed. Rather, the potential wrongdoing of a plaintiff would presumably fit into the broader context of “the attributes of the claimant” and “the nature of the activity in which the claimant was engaged”.152
142 At 22.
143 Andrews v Television New Zealand, above n 94, at [60].
144 At [75].
145 “Season 1, Episode 8” Firefighters, above n 97.
146 Murray v Express Newspapers Plc, above n 104, at [56].
147 The BSA also seems to be moving away from viewing identifiability as a threshold test. See: NH v Radio Virsa
[2022] NZHC 2412 at [85].
148 See: Bloomberg v ZXC [2022] UKSC 5.
149 Andrews v Television New Zealand, above n 94, at [42].
150 At [43]. This was especially so because the tort was still in the early stages of development.
151 At [46].
152 These are two of the Murray factors. See: Murray v Express Newspapers Plc, above n 104, 481 at [36].
The courts appear to have accepted that the reasonable expectation limb requires a broad contextual assessment of all the circumstances in a case. This approach can incorporate modern concerns with visual disclosures and communication technologies, such as the ongoing and permanent scrutiny by a much larger and differently constituted audience. However, it is ultimately at the judge’s discretion whether to consider these modern concerns. Therefore, it is crucial judges are active to the impacts the modern climate can have the privacy involuntary subjects.
The second limb of the tort, as established by Gault P and Blanchard J in Hosking, requires the plaintiff to prove that the publicity given to their private information would be considered highly offensive to a reasonable objective person.153 To meet this threshold, the publicity must be “truly humiliating and distressful or otherwise harmful to the individual concerned.”154 The joint judgment held that the cause of action should only be available where the publicity has caused “real hurt or harm”.155 The harm required, however, is humiliation and distress, not personal injury or economic loss.156
The joint judgment stated that the analysis should refer to the extent and nature of the publication.157 It was also noted that the assessment should be done from the perspective of an objective, reasonable person.158 Later cases have clarified that this is not the general reader of ordinary sensibilities, but rather one in the position of the plaintiff.159
Despite the extensive explanation of how the reasonable expectation test is intended to be applied, the recent Court of Appeal decisions did not clearly articulate what is meant to be
153 Hosking v Runting, above n 3, at [117]. At [256], Tipping J stated that he would have preferred the test to be one of a “substantial” level of offence. However, it is the joint judgment’s standard that has been applied in subsequent cases. For example, see: Hyndman v Walker, above n 36; Peters v Attorney-General, above n 36.
154 Hosking v Runting, above n 3, at [126].
155 At [126].
156 At [128].
157 At [126].
158 At [117], [126].
159 Andrews v Television New Zealand, above n 94, at [49]; Television New Zealand Ltd v Rogers [2006] NZCA 432; [2007] 1 NZLR 156 at [67].
assessed under the second limb. In both Hyndman and Peters, the Court did acknowledge that the offensiveness requirement has been subject to much judicial and academic criticism.160 It was also suggested that a court may be open to reconsidering the element in a future case.161 Yet, both judgments decided the case in front of them was not the appropriate case for reform.162 Therefore, the Hosking formulation of the tort remains.
It is generally accepted that the offensiveness element is intended to filter out trivial claims. The joint judgment in Hosking held that the action should not be available simply because one’s spouse has informed a neighbour they have a cold.163 The offensiveness requirement is viewed as a way of confining the scope of the tort to only the most serious privacy interferences. This is where the joint judgment believed the correct balance was between the theoretical right to privacy and freedom of expression. Similarly, Tipping J stated that the formulation “is a useful reminder that relatively trivial invasions of privacy should not be actionable”.164 Even the opening paragraph of Hyndman states that “the offensiveness threshold is to discourage trivial claims”.165
One of the only indications given by the recent Court of Appeal decisions as to what this triviality assessment requires is that it is a “threshold for liability that turns on the nature and extent of the harm” (emphasis added).166 This statement, however, tells us no more than what Hosking told us the assessment requires. This becomes even more problematic when one reads the statement with the discussion preceding it. As foreshadowed in Part III(A)(1), the Court in Peters appeared to include “nature and extent” in the reasonable expectation assessment. For example, the Court’s discussion of how the same information can attract a different expectation of privacy if the disclosure is made to different groups surely has to do with the nature and extent of the disclosure. The same goes for the fact that a photo may attract a different expectation than a textual description. Moreover, the Murray factors167 include matters such as
160 Hyndman v Walker, above n 36, at [70]-[73]; Peters v Attorney-General, above n 36, at [112]-[113]. These criticisms are discussed in Part III(B)(3) and Part IV(B).
161 Hyndman v Walker, above n 36, at [75]; Peters v Attorney-General, above n 36, at [115].
162 Hyndman v Walker, above n 36, at [53]-[54], [75]-[76]; Peters v Attorney-General, above n 36, at [115].
163 At [125].
164 At [255].
165 Hyndman v Walker, above n 36, at [1].
166 Peters v Attorney-General, above n 36, at [115].
167 Which the Peters judgment at least approved of as suggesting factors that could be considered at the reasonable expectation stage.
how the defendant acquired the information, their purpose for using it and the effect on the claimant.168 One would think, therefore, that Peters can be authority for the proposition that the nature and extent of the disclosure is assessed in the first limb. Yet, if this is the case, there would be no analytical purpose to the “threshold of liability which turns on the nature and extent” in the second limb.
Neither Hyndman nor Peters took the opportunity to comment on the correctness of the application of the offensiveness requirement in previous lower court decisions. The Hyndman judgment lists a series of cases, including Andrews, before simply stating that the highly offensive requirement appears to have “migrated to some degree, from the publicity given to the information to the nature of the information itself.”169 Without giving any indication as to whether this approach is right or wrong, the Court simply moves on to its analysis on the facts of the case.
The Hyndman judgment does consider the “circumstances of the publicity”170 in particular noting the number of people the disclosure was made to and the relationship between the parties.171 It was held that the more people the information is disclosed to, the more offensive the disclosure may be.172 However, the question remains unsettled because it was never acknowledged whether the “migration” of the assessment to focus on the nature of the information itself is the right (or wrong) approach.
It is also unclear whether the Hyndman Court was engaging in the reasonable expectation or the offensiveness test when considering these circumstances. When these passages are read together with the later judgment in Peters – which clearly states that circumstantial considerations are part of the first element of the tort - one starts to question whether the offensiveness element considers anything new at all.173 If both elements require an assessment of the same factors, what does the offensiveness test bring to the tort? Judges are unlikely to give no function to the element, meaning there is a risk that decisions will be reached in an unprincipled way.
168 Murray v Express Newspapers Plc, above n 104, at [31].
169 Hyndman v Walker, above n 36, at [44].
170 Hyndman v Walker, above n 36, at [50].
171 At [53].
172 At [50]
173 See discussion in Part III(A)(1).
The Peters judgment does not mention the lower court’s application of the offensiveness element, nor does it work through the assessment on its own facts. Whilst the Court was not technically required this, given the claim failed on the first limb,174 it is interesting that the Court still chose to work through an assessment of the defence.175 It would not have been difficult for the Court to include a short statement noting that offensiveness was not made out on the facts. This would have at least shown the Court working systematically through the elements of the tort.
The Court of Appeal’s limited comment on the element means there is a risk that judges will apply the element in an unprincipled way. The outcome of a case may be reached through assessments that do not appropriately account for the theoretical right to privacy the tort is meant to afford some legal protection. One merely needs to look at how the element was applied in Andrews to recognise this concern.
In Andrews, the claim ultimately failed on the highly offensive limb. Despite claiming that “the fact nothing inherently embarrassing was said ... does not lead inexorably to the conclusion that the disclosure was not humiliating or distressful”, Allan J appeared to primarily base his decision on the fact the programme had not shown the Andrews in a “bad light”.176 It was significant to Allan J that the broadcast had not disclosed the fact the driver was drunk and neither plaintiff could point to any specific part of the broadcast they found humiliating or embarrassing.177 Moreover, he emphasised that Mrs Andrews was portrayed as a caring person who was “making light of the situation”.178 In essence, Allan J found that disclosure of the Andrews’ private conversations was not highly offensive because of the angle the broadcaster presented it in.
Moreham has argued that Allan J carried out this assessment incorrectly. She explains that the publicity tort is concerned with the preservation of one’s choice over whether their private life
174 Peters v Attorney-General, above n 36, at [171].
175 At [176]. Given the claim failed at the first limb, no defence was needed.
176 Andrews v Television New Zealand, above n 94, at [67]-[69].
177 At [67]-[68].
178 At [68].
will be disclosed to others and not with reputation and embarrassment.179 Moreham suggests that the word ‘offensive’ is perhaps what led Allan J to focus on the wrong things. ‘Offensive’ is generally used to describe behaviour that leaves someone feeling insulted, such as racism or sexism. Yet, as mentioned in Part II, the protection of choice is inherently connected with dignity and autonomy. More appropriate language to use in the privacy context, she argues, are words such as “violated”, “disrespected”, or “commodified”.180
Allan J’s focus on tone led him to conclude that the Andrews’ “chagrin and annoyance” that their consent had not been sought was not “an ingredient of the tort” and did not need to be considered.181 Moreham has argued that this misses the whole point.182 This author agrees. If the publicity tort is about giving some protection to one’s right to choose who knows what about themselves, then consent, or lack thereof, is clearly relevant. This is because consent is integral to the idea of choice.183 This is not to suggest that lack of consent would necessarily be determinative of a claim. At the very least, it should have been in the contextual assessment of whether privacy protection was deserved.184
A better assessment in Andrews would not only have taken into account the length of the footage and the way the information was presented.185 It would also have considered other factors such as the lack of consent or attempt to obtain it, the fact the publication was on prime time television, the size of the audience who viewed the programme, the potential for any future media attention, and the intrusiveness of the filming itself.186
In Hosking, the majority agreed that if the defendant can prove there is a legitimate public concern in the information, the publication will be justified, even when the other elements are
179 Moreham “Abandoning The “High Offensiveness” Privacy Test”, above n 39, at 20. This is consistent with the discussion in Part I(A).
180 At 23.
181 Andrews v Television New Zealand, above n 94, at [69]-[70].
182 Moreham “Abandoning The “High Offensiveness” Privacy Test”, above n 39, at 25.
183 Consent, being integral to choice, also has an instrumental effect on respecting the dignity and autonomy of the subject. See the discussion in Part II(A)(1).
184 Absence of consent, and whether this was known or could be inferred is one of the seven Murray factors. See the discussion in Part III(A)(1). See also: Murray v Express Newspapers Plc, above n 104, at [36].
185 Andrews v Television New Zealand, above n 94, at [65], [67]-[69].
186 The intrusiveness of the filming itself in Andrews is elaborated on in Part IV(C)(1).
made out.187 In Peters, it was suggested that the term “legitimate interest in communication” may be more appropriate given the cause of action is also available when disclosure is made to only a limited number of persons.188
The use of the word “concern” in the defence was deliberate.189 Matters of general interest and curiosity will not be enough to outweigh the “substantial breach of privacy” being presupposed by the tort”.190 Tipping J explained:191
...[W]hether there is sufficient public concern about the information or material to justify the publication will depend on whether in the circumstances those to whom the publication is made can reasonably be said to have a right to be informed about it.
Although the tort was designed to balance privacy and freedom of expression, its defence was expressly adopted to ensure freedom of expression would not be limited more than is justified.192
The majority in Hosking envisaged the defence working as a balancing exercise where the legitimate concern in the disclosure is weighed against the level of harm likely to be caused to the plaintiff.193 Therefore, the greater the invasion of privacy, the greater the level of concern needed for a successful defence.194 The Court was clear, however, that “it is not a matter for judges being arbiters of taste, but of requiring the exercise of judgment in balancing the rights”..195 This suggests that the courts will grant some editorial discretion to the defendant. Ultimately, however, it is for the courts to decide whether the inclusion of the plaintiff’s private information is justified by the defence.
In Andrews, although the claim failed at the second limb, Allan J went on to state that “had it been necessary” he would have upheld the defence.196 It was held that “the Court will ordinarily
187 Hosking v Runting, above n 3, at [129] per Gault P and Blanchard J and [257] per Tipping J.
188 Peters v Attorney-General n 36, at [119].
189 Hosking v Runting, above n 3, at [133].
190 “substantial” in the sense that it has to meet the two elements of the tort to be a legally enforceable breach. See: Hosking v Runting, above n 3, at [134] per Gault P and Blachard J.
191 Hosking v Runting, above n 3, at [259].
192 Hosking v Runting, above n 3, [130] per Gault P and Blanchard J. Therefore, keeping the tort in line with s 5 of NZBORA.
193 Hosking v Runting, above n 3, at [134] per Gault P and Blanchard J and [257] per Tipping J.
194 At [257] per Tipping J.
195 At [132] per Gault P and Blanchard J.
196 Andrews v Television New Zealand, above n 94, at [91].
permit a degree of journalistic latitude, to avoid robbing a story of its attendant detail, which adds colour and conviction.”197 Allan J felt the programme, albeit providing “a certain level of entertainment” had a “serious underlying purpose”198 and this “entertainment aspect is not to be taken as somehow cancelling out that purpose”.199
When reaching this conclusion, Allan J relied heavily on the Supreme Court of California’s decision in Shulman v Group W Productions Inc.200 In both cases, the plaintiff’s rescue from a car accident had been filmed and then later broadcast on a reality programme.201 The Californian Court found that there merely needed to be a logical connection between the footage complained of and a matter of legitimate public concern for the defence to be made out.202
The Shulman judgment is, however, problematic. In her dissenting opinion, Brown J stated that the logical connection test adopted by the plurality had unduly expanded the newsworthiness defence.203 She saw this as a radical departure from prior law, effectively sacrificing a private individual’s right to privacy.204 Dianna Worley expressed a similar concern, stating that the test makes it “virtually impossible for a private individual to prevail against the media”.205 She argues that the logical relationship test is “so overly broad that a court could hold that virtually any information is newsworthy”.206
197 At [82].
198 At [91].
199 At [91].
200 Andrews v Television New Zealand, above n 94, at [85]-[90] referring to Shulman v Group W Productions Inc
201 Shulman v Group W Productions Inc, above n 200, at 210.
202 Shulman v Group W Productions Inc, above n 200, at 223-224, 229. Here, the public interest in the footage was the showing of the demanding work the rescue nurse was engaged in, which included her role in assisting traumatised patients.
203 Shulman v Group W Productions Inc, above n 200, at 250.
204 At 251.
205 Dianna M Worley “Shulman v. Group W Productions: Invasion of Privacy by Publication of Private Facts – Where Does California Draw the Line Between Newsworthy Information and Morbid Curiosity?” (2000) 27 W St U L Rev 535 at 535.
206 At “569-570.
Such an expansive view of the defence has been argued by one commentator as turning freedom of expression into the protection of voyeurism.207 Clay Calvert argues that the programme in Shulman let the entire nation rubberneck at the plaintiff’s accident.208 Not only this, but the programme let the nation rubberneck for an extended period. When the defence is applied in this broad way, it protects our right to watch and listen to people in situations we typically would not be able to without social or legal repercussions.209 Despite the right to receive information being important for the marketplace of ideas,210 Calvert argues that this kind of voyeurism is one-directional211 and does not assist with any higher democratic purpose.212
As an example, Calvert explains that the ride-along programme, Cops, could have the important function of furthering the public’s understanding of the law enforcement agency. However, using the legitimate concern defence to justify its broadcast may merely be protecting the audience’s pleasure in seeing others humiliated.213
Natalya King makes a similar point, arguing that there appears to be a contradiction in the justification that ride-along programmes are in the public interest. Suppose these programmes aim to inform the public of the wider importance of police, enforcement officers and emergency personnel. If that is the case, these programmes should provide a fair and balanced view of the agencies.214 Yet, as King explains, the broadcaster requires the host organisation’s permission to follow them around. Therefore, it is likely that the broadcaster will present a positive image of the agency.215 The implication is that the public may not receive the complete picture. For this reason, King states that “the proposition that free speech protects both sides of an argument seems a little thin in the context of reality journalism”.216
207 Clay Calvert “The Voyeurism Value in First Amendment Jurisprudence” (1999) 17 AELJ at 295. Note
Calvert uses ‘voyeurism’ to refer to the “urge to gaze at the alien and the intimate”. It is used here in the same way.
208 At 295.
209 At 274.
210 At 306.
211 At 308.
212 At 279-280.
213 At 314.
214 Natalya King “Privacy and Reality Television: Issues for Producers and Involuntary Participants” in Steven Penk and Rosemary Tobin (ed) Privacy Law in New Zealand (2nd ed, Thomson Reuters, Wellington, 2016) at 374.
215 At 374.
216 At 374.
Following the Shulman approach, therefore, risks giving undue weight to freedom of expression and not sufficiently accounting for the involuntary subject’s privacy. This approach also does not accurately reflect the balancing assessment the New Zealand Court of Appeal so clearly intended.
In New Zealand, only if the legitimate concern is greater than the breach of privacy is the defence meant to apply.217 Although the Shulman judgment does speak of “balancing”,218 the Court appears to view the logical connection threshold itself as the appropriate balance. This is made apparent in the Court’s statement that the balance between the public’s right to know and the plaintiff’s privacy is achieved through the “drawing [of] a protective line at the point the material revealed ceases to have any substantial connection to the subject matter of the newsworthy report”.219 As the threshold itself is the balance between the countervailing interests, a judge is not required to undertake a separate balancing assessment. In New Zealand, however, it appears judges are required to do this.220
Despite citing many passages of Shulman, Allan J still claimed to have undertaken a balancing assessment.221 He explained that had he found there to be an actionable invasion of privacy, it would have “fallen towards the lower end of the scale”. Therefore, “the degree of public concern needed to maintain the defence would not be high”.222 Allan J said he would have taken into account the fact that only the Andrews’ first names were used, no reference was made in the programme to the driver being drunk, and that the car was unidentifiable. He also would have considered the significant degree of pixelation of Mrs Andrews “and the generally low-key and sensitive treatment” of the plaintiffs in the broadcast..223
The design of the New Zealand balancing test allows judges to afford a permissible range of journalistic latitude to defendants so as to not unduly interfere with their editorial discretion. This, however, is only a range. It is not absolute deference to the media. Allan J acknowledged
217 Hosking v Runting, above n 3, at [134] per Gault P and Blanchard J and [257] per Tipping J.
218 Shulman v Group W Productions Inc, above n 200, at 222-227.
219 Shulman v Group W Productions Inc, above n 200, at 224.
220 Hosking v Runting, above n 3, at [130] per Gault P and Blanchard J.
221 Andrews v Television New Zealand, above n 94, at [94].
222 At [93].
223 Andrews v Television New Zealand, above n 94, at [94].
this himself when he referred to the “degree” of journalistic latitude.224 When Allan J engaged in his balancing assessment on the facts of the case, however, he appeared to have forgotten, or at least understated, the fact that this is a range.
The English courts, on the other hand, clearly recognise that editorial discretion is not absolute. In Ali v Channel 5, despite the programme containing a public interest element, the footage was held to be beyond the permissible range of editorial discretion.225 In this case, the plaintiffs were filmed being evicted from their rental property, which was then broadcast on a reality programme. The broadcast showed the distressed plaintiffs in their home, being verbally abused by the landlord’s father. The English High Court of Justice found the programme was more focussed on the drama and conflict between the parties than any public interest in showing how landlords can expedite enforcement.226 This was especially so given that one enforcement officer had encouraged the landlord’s aggressive behaviour by saying it would make “good television”.227 The Court was clear that Channel 5’s editorial discretion did not extend to the inclusion of an individual’s private information unless such inclusion contributes to the public interest.228
Similarly, in Sicri v Associated Newspapers Ltd, the English High Court of Justice found the reporting of a criminal suspect’s name and other identifying details went beyond the permissible range.229 This case concerned a claimant who was arrested in relation to the 2017 Manchester bombings.230 The defendant had posted an article identifying the claimant, including numerous personal details.231 Days later, the police released the claimant,232 but the article was not updated.233 The Court found that although some aspects of the article were in the public interest, this did not justify the inclusion of the claimant’s private information.234 The public interest in showing that the police were doing their job could have been achieved without naming the claimant.235 The Court acknowledged the commercial imperative of the
224 At [82].
225 Ali v Channel 5 Broadcast Ltd [2018] EWHC 298 (Ch) at [195].
226 At [195], [196].
227 At [155], [195].
228 At [206].
229 Sicri v Associated Newspapers Ltd [2020] EWHC 3541 (QB), [2021] 4 WLR 9 at [125]- [126].
230 At [2].
231 At [3].
232 At [4].
233 At [5].
234 At [111].
235 At [126].
defendant and noted that anonymised articles are less attractive to readers,236 but found this did not justify the publication.237
In direct contrast to the Sicri judgment, in Andrews, Allan J reasoned that although the programme could have been edited to exclude the part the plaintiffs had a reasonable expectation of privacy over, it was not the Court’s role to act as a censor.238 This view was taken directly from Shulman, which, as previously mentioned, is a problematic judgment that applied a slightly different test. By adopting this stance, Allan J risked giving more weight to freedom of expression than a proper application of the defence should allow.
Moreover, Allan J’s justification for why the footage for which the Andrews had a reasonable expectation of privacy was of legitimate concern is because it “provided a necessary degree of verisimilitude”.239 Reliance on verisimilitude is not necessarily problematic. This issue is that Allan J gave did not explain what a permissible range of verisimilitude would look like or where this range might end. Therefore, although Allan J mentions “degree” at the beginning of his discussion of the defence,240 he seems to overlook its relevance when applying the assessment to the case. Such cursory use of verisimilitude as a justification for the defence may lead to the undue employment of verisimilitude in a future case. This is because footage of any real-life scene241 could arguably add a degree of verisimilitude.
One way to ensure judges recognise editorial discretion is not a free pass is to require judges to articulate why the specific footage for which the plaintiffs have a reasonable expectation of privacy is of legitimate concern.242 This type of reasoning would be more consistent with Tipping J’s view that the defence is only meant to enable disclosure to those have a right to be informed of that information.243
236 At [130].
237 At [123], [128].
238 Andrews v Television New Zealand, above n 94, at [86]- [88].
239 At [92].
240 At [82].
241 Which is the only kind of footage the involuntary subject features in.
242 This is the approach taken by the English courts. See for example: Ali v Channel 5 Broadcast Ltd, above n 225; Sicri v Associated Newspapers Ltd, above n 229. This approach is also currently taken by the BSA. See the approach confirmed in: Canwest TVWorks Ltd v XY [2007] NZHC 2018; [2008] NZAR 1.
243 Hosking v Runting, above n 3, at [259].
Striking the right balance is important because if the defence favours the defendant, they have less incentive to seriously consider the privacy interests of involuntary subject in their editing process. It is in society’s best interests to encourage defendants, particularly the commercial media outlets, to make a “considered editorial judgment” as to whether the private aspect of the involuntary subject’s life really is proportionate to their public interest imperative.244
Although the joint judgment in Hosking did not wish to adopt categories of “commercial” and “non-commercial” speech,245 Tipping J, emphasised that the defence should not be employed as a justification for “what may be no more than a desire to boost circulation or ratings”.246 Care must be taken then, not to permit too much editorial discretion. This is because, in reality, the media landscape is a commercial marketplace. The traditional media are businesses that are vulnerable to being more concerned with profit maximisation than serving some abstract public good.247 This means there is a risk that media outlets will focus on recording and reporting on content that sells, even if this at the cost of an individual’s privacy.248 Unfortunately, exploiting involuntary subjects by making their personal lives into sensationalised television is a cost- effective way of producing a product the market will consume.249 The involuntary subject is not a paid actor, but the private moment they experience appeals to the audience’s voyeuristic desires. In this way, the involuntary subject’s loss of privacy becomes the voyeur’s gain and the disseminator’s source of profit.250
There is an inherent risk in awarding the media too much deference as it means they can effectively decide for themselves what is in the public interest. This is concerning as a commonly held perspective within the media industry is that if the public is interested in something, it is in the public interest.251 The existence of the publicity tort has placed the decision about what should and should not be publicised ultimately in the hands of the courts.
244 The idea that we want to encourage a certain type of behaviour in commercial media outlets was noted in Sicri v Associated Newspapers Ltd, above n 229, at [133].
245 Hosking v Runting, above n 3, at [135].
246 At [258].
247 Calvert, above n 207, at 293.
248 Worley, above n 205, at 537-538.
249 Worley, above n 205, at 536; Calvert, above n 207, at 293.
250 Calvert, above n 207, at 308.
251 Leveson, above n 55, at 606.
Therefore, the defence needs to be applied in a way that ensures judges remain the ultimate decision-maker.
The extent to which the tort protects the involuntary subject’s privacy can be summarised as follows. As a first step, the court will consider all relevant circumstances to discern whether the plaintiff could have reasonably expected the law’s protection from that private aspect of their life being disclosed in the way the defendant has or proposes to disclose it. This approach can account for modern concerns with media and technology because it allows for different expectations of privacy in different circumstances. At the second stage of the inquiry, the application of the tort becomes more complex because what is to be assessed for offensiveness remains unclear. While a court may be willing to reconsider this element in a future case, until such time arises, it is still crucial that it can and will be applied in a principled way. The present lack of analytical function in the offensiveness element raises issues as because decisions may be reached without appropriately balancing the involuntary subject’s privacy with the defendant’s freedom of expression. Also, if judges do not recognise the defence only permits a range for editiorial discretion, this may be a further factor making the balance favour freedom of expression.
IV The Key to Effective Protection is Clear Application
This paper has argued that publicity tort in its current form can appropriately balance the involuntary subject’s reasonable expectation (that the private moment they experience in public will not be given unwanted media attention) with the defendant’s right to freedom of expression. The fact that there is room for judges to do this, however, does not necessarily guarantee they will achieve the right balance in practice. Where the law is uncertain, judges have more discretion to make unbalanced decisions. Of specific concern is the uncertainty of the offensiveness element. At present, there is a lack of clear understanding regarding what should be assessed, which could lead to unprincipled approaches to decision-making. While it has been argued that the element ought to be removed, I argue that focusing on this understates the more important point: the element needs analytical meaning so it can be applied in the interim.
The contextual trajectory of the tort, particularly in light of the contextual approach under the reasonable expectation assessment, indicates that decisions will be largely fact dependent. Nonetheless, it remains imperative for the law to maintain clarity. This is particularly so in privacy cases and even more accentuated when the case involves an involuntary subject. When a privacy claim is brought before the courts, the plaintiff risks having even more media attention given to the matter.252 Therefore, the best way to protect privacy is to ensure appropriate legal mechanisms are in place to deter breaches in the first place.253
Moreover, damages do not fix a breach of privacy. Infringing on one’s legal entitlement to privacy is not analogous to a negligence claim, where the damages paid to the defendant can be used to rectify the harm caused by the defendant. Rather, the very essence of the privacy claim “has already been destroyed”.254 This underscores the importance of an effective publicity tort. The loss of autonomy and choice felt by the subject, and the injury to their dignity, cannot easily be remedied through compensation.255 In privacy cases, damages primarily serve to affirm the subject’s right to control their personal information and are effectively an apology in monetary form.
The need to protect privacy from being breached before the fact means the how the tort will be applied needs to be clear. This will allow individuals to know what kind of media attention will and will not amount to breaches of privacy before they even become involuntary subjects. Individuals who wish to maintain the choice of who knows what about themselves will be better positioned to understand expectations of privacy in public places, and what circumstances they may need to alter their behaviour in. Furthermore, disseminators of footage involving involuntary subjects may be better placed to understand what could amount to an actionable breach of privacy. The most important part of the publicity tort, therefore, is its deterrent effect.
252 The Law Commission pointed out that “there is a certain irony in a plaintiff bringing a delicate privacy issue to the court, one of the most public bodies in the land.” See: Law Commission, above n 11, at 199. See also: Gavison, above n 12, at 458.
253 Plaintiffs can seek an injunction, but given they are involuntary subjects, in many cases they will be unaware of the footage until after it has been disseminated.
254 Law Commission, above n 11, at 199.
255 Gavison, above n 12, at 458.
The current ambiguity in the tort compromises the protect it grants involuntary subjects. When the law is uncertain, legal proceedings are unattractive. This is because the involuntary subject is often an ordinary citizen. Therefore, they are unlikely pursue litigation if there is a reasonable risk their time and resources may be wasted. If the involuntary subject is a celebrity, they may well have the means to pursue litigation even if it is uncertain whether their claim will succeed. However, it is important that the legal protection granted by the publicity tort is not limited to celebrities; it should protect the rights of ordinary citizens as well.
When involuntary subjects are less likely to sue, defendants have less incentive to consider the privacy implications of the footage they disseminate. This compromises the tort’s potential deterrent effect and can give a defendant the upper hand as their breaches of privacy may not be legally challenged. This means the balance between freedom of expression and privacy is not yet appropriately struck.
As indicated, one of the biggest areas of uncertainty in the current form of the publicity tort is related to the exact analytical function of the second limb. The only indications given by the courts seem to conflate the element with the same factors that are meant to be considered at the reasonable expectation stage.256 For this reason, it has been argued that the element is an unnecessary step that ought to be removed altogether.257
The offensiveness requirement appears to have been included by the joint judgment in Hosking to act as a filtering mechanism for trivial claims.258 This justification seems to misunderstand (or ignore) the function of the first limb of the tort. To bar the unduly sensitive litigant from bringing a claim, liability under the tort must not depend only on a plaintiff’s subjective desires. However, the point of a reasonable expectation test is that the limb has an objective component. If unmeritorious claims are excluded by the assessment undertaken at the first limb, there is no need for a second filtering mechanism. The objective aspect of the reasonable expectation test
256 See discussion in Part III(B)(2).
257 See generally: Moreham “Abandoning The “High Offensiveness” Privacy Test”, above n 39; Moreham, above n 26.
258 See discussion in Part III(B)(1).
requires the claim to be serious enough that a reasonable person would have expected legal protection in the circumstances. As Moreham explains, “this will not be the case if your spouse tells your neighbour – or anyone else for that matter – that you have a cold”.259 The reasonable expectation test prevents the involuntary subject from having legal redress against all losses of their theoretical right to privacy. Instead, the tort only grants protection where the cumulation of contextual factors means that, objectively, the plaintiff was entitled to expect the law’s protection.
In 2018, Moreham noted that Whata J’s suggestion for what to consider under the highly offensive assessment in an intrusion claim260 was directly imported from the English Court of Appeal’s decision in Murray.261 Whata J had stated that:262
Various factors including the degree of intrusion, context, conduct and circumstances of the intrusion, the motive and objectives of the intruder and the expectations of those whose privacy is invaded, are all relevant to whether or not the intrusion is “highly offensive”.
Significantly, however, is the fact that these factors are used in Murray as part of the reasonable expectation assessment.263 For this reason, Moreham argued that “it is difficult to see, then, what tools the high offensiveness test is providing that are not already part of the reasonable expectation of privacy test”.264
Since Moreham’s observation, there have been two Court of Appeal decisions. As discussed in Part III, the judgments of Hyndman and Peters incorporated the Murray factors (or at least endorsed them as being of use) in the reasonable expectation assessment.265 This suggests that the offensiveness element is even more superfluous now than it was in 2018.
259 Moreham “Abandoning The “High Offensiveness” Privacy Test”, above n 39, at 27.
260 The intrusion into seclusion variant of the tort was introduced in New Zealand in the case of C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672. The tort shares the reasonable expectation and offensiveness limbs with the publicity tort.
261 Moreham “Abandoning The “High Offensiveness” Privacy Test”, above n 39, at 27-28.
262 C v Holland, above n 260, at [16].
263 Murray v Express Newspapers Plc, above n 104, at [36].
264 Moreham “Abandoning The “High Offensiveness” Privacy Test”, above n 39, at 28.
265 Hyndman v Walker, above n 36, at [65]-[66]; Peters v Attorney-General, above n 36, at [109]-[110].
For this reason, the concerns Tipping J’s expressed before the tort was even formerly established are not surprising. In Hosking, Tipping J stated that that in most cases, a reasonable expectation of privacy would be “unlikely to arise unless publication would cause a high degree of offence”.266 In this way, Tipping J suggests the two elements coalesce to a degree.267 The fact the elements overlap only adds to the argument that the second limb is an unnecessary step.
Unlike New Zealand, the English version of the tort involves a simple two-stage test. The first step asks whether the plaintiff had a reasonable expectation of privacy in relation to the facts disclosed.268 The second step then requires the judge to undertake a proportionality assessment to determine whether the breach of this expectation was justified. This step considers whether any other interests, such as freedom of expression, must give way in the particular case.269 There is no separate offensiveness element.270 For this reason, Moreham has advocated for New Zealand to also rely on a simple two-stage test. She argues that if the English can do it “to dispose of the dozens of privacy cases which come before them each year”, so can New Zealand.271
Removing the offensiveness requirement would mean the involuntary subject would simply need to prove they had an objectively reasonable expectation that the moment they experienced in public would not be disclosed in the way the defendant has or proposes to disclose it. This claim would then be actionable unless the inclusion of the subject’s private moment in the publicised footage is within the permissible range of editorial discretion allowed for publications of matters of legitimate concern. This would remedy the confusion about the offensiveness assessment because there would be no second element to be confused about in the first place.
As convincing as this argument may be, the more pressing issue is that the element needs some analytical function until a court takes the opportunity to remove the offensiveness element. Two American commentators, Patricia Sánchez Abril and Alissa del Reigeo, explicitly reject
266 Hosking v Runting, above n 3, at [256]. For this reason, Tipping J preferred requiring a “substantial” level of offence.
267 Young P expressed a similar view in New Zealand Ltd v Rogers, above n 159, at [122].
268 Campbell v MGN Ltd, above n 50, at [21] per Lord Nicholls and [138]-[139] per Baroness Hale.
269 Campbell v MGN Ltd, above n 50, at [140].
270 Campbell v MGN Ltd, above n 50, at [21] per Lord Nicholls and [137] per Baroness Hale.
271 Moreham “Abandoning The “High Offensiveness” Privacy Test”, above n 39, at 29.
removing the offensiveness requirement.272 Rather, they argue that the lack of principled application of the test273 can and should, be resolved by giving clear guidance as to how the assessment is to be applied.274
I do not propose that the offensiveness element should not, at some point, be removed. Instead, I suggest that, in agreeance with Abril and del Reigo, it is clear guidance that could resolve some of the issues with this element in the interim. As already indicated, I argue that the pressing concern is for the courts to give analytical meaning to the element. Whether this meaning is temporary or not is irrelevant. Clear law is always desirable and necessary and the law needs to be able to grant the protection it was intended to now.
When the publicity tort was established, the joint judgment made clear that the action should only be available where the publication has caused harm to the plaintiff.275 Therefore, although there is confusion about what the offensive element is meant to entail, it is at least presumed that some type of harm is necessary.
There are two important points to be made about harm. First, the harm in each case may be different. However, locating where the intrusiveness of a particular disclosure has come from could help judges identify whether any harm has or will be caused. Second, the same publication may result in different levels of harm depending on who the defendant is and the platform the footage has or will be disclosed on.
When harm is considered from a more nuanced perspective, it presents an opportunity for what the court could consider when making its offensiveness assessment. It may also focus the court’s attention on different types of harm that media footage of involuntary subjects can present in the modern climate. Both of these points are addressed in this subpart.
272 Patricia Sánchez Abril and Alissa del Reigeo “Judging Offensiveness: A Rubric for Privacy Torts” (2022) 100(6) NC L Rev 1557 at 1587.
273 A problem that Abril and del Reigeo observed was present in the United States as well.
274 Abril and del Reigeo, above n 272, at 1587.
275 Hosking v Runting, above n 3, at [126].
One way to think about harm is to locate the intrusion aspect in the claim. Although intrusion is typically associated with physical privacy,276 Paul Wragg argues that the distinction between informational and physical privacy misrepresents the true nature of privacy.277 To an extent, we are already moving away from the harsh dichotomy between physical and information privacy by no longer restricting the expectation of privacy to be in the information itself. Instead, the judge is required to consider the wider circumstances and determine whether the plaintiff could reasonably have expected the moment, event, or aspect of their life in question would not be disclosed in the way it was.278
Wragg suggests that informational and physical privacy are not merely linked but are inseparable.279 For this reason he sees the distinction between them as a description of the way the law has traditionally dealt with privacy claims rather than having any conceptual or analytical significance.280
Wragg identifies various means through which a publicity tort claim may possess an intrusive character. Firstly, the core intrusion could arise from the misuse of the claimant’s private information.281 Wragg’s second proposition is that the act of disseminating the information can itself create subsequent intrusions. This is because the spread of such information may trigger intensified media attention, leading to unwelcome scrutiny of both the claimant and their family.282 Finally, Wragg posits that the method employed in gathering the information, rather than the act of its disclosure, might constitute the primary intrusive action in the claim.283
In Hosking, the joint judgment stated that “the real issue is whether publicising the content of the photographs (or the “fact” that is being given publicity) would be offensive to ordinary
276 In the sense that the intrusion tort does not require disclosure of information. See C v Holland, above n 260.
277 Wragg, above n 139, at 410.
278 See Part III(A)(1).
279 At 410.
280 At 412. Here, Wragg is talking in the context of the English approach, but the criticism is applicable to the New Zealand context as well.
281 At 429.
282 At 427, 429.
283 At 429.
people”.284 This suggests the joint judgment believed harm could only be found if the actual disclosure of the information was harmful.
However, as Wragg has suggested, disclosures of innocuous material can still be harmful if such disclosure would lead to intrusive consequences.285 In Hosking, the joint judgment noted that the “real concern of the appellants” related to the “identification and association of them with a celebrity parent”.286 Interestingly, despite the joint judgment acknowledging that this identification may result in the children having to live their lives in “constant fear of media intrusion”, the joint judgment did not see the harm in this, because they confined their thinking of harm to the information disclosed itself.287 However, if we free ourselves thinking only about the information disclosed, we can identify harm, or at least potential harm, on the facts in Hosking. The harm comes from a different intrusive aspect of the disclosure – the potential consequence of the children having to actively modify their behaviour and be constantly on guard in public because their faces would now be widely known. Interestingly, the English courts have upheld claims in this way.288
If we acknowledge that the harm felt by the involuntary subject can come from intrusive aspects other than just the information being disclosed, then claims like Hosking and Andrews may have succeeded. The courts should first discern what the intrusive aspect of the claim is before assessing whether it is harmful enough to meet the required legal test. This analysis would ensure thar the tort protects the different types of harm that unwanted media attention may give an involuntary subject.
For example, the harm in Andrews could have been identified as the presence of the cameras being there in the first place. The Andrews were clearly experiencing a deeply private moment following the trauma of their accident, and as such, they were very vulnerable., Therefore, even the fact that there was nothing humiliating in the broadcast itself meant the disclosure of this information did not meet the level of harm required by the tort,289 the Andrews may have still
284 Hosking v Runting, above n 3, at [165].
285 Wragg, above n 139, at 427, 429. 286Hosking v Runting, above n 3, at [161]. 287 Hosking v Runting, above n 3, at [161].
288 For example, see: Murray v Express Newspapers Plc, above n 104; PJS v News Group Newspapers Ltd
289 Andrews v Television New Zealand, above n 94, at [67]-[69].
been able to get redress for the interference with the private moment they experienced in a public place.
Moore has argued that if an accident survivor or the medical personnel attending to them explicitly or implicitly express frustration or distaste at the presence of the cameras, this conduct should be viewed as unjustifiably invasive.290 Under this view, the invasiveness of the cameras being there would be the harm in itself. This is directly connected to the idea that one may not disclose medical information if they think they are being filmed, which could negatively impact their recovery or treatment.
It is worth noting that a separate tort of intrusion into seclusion has been recognised in New Zealand.291 This does not, however, mean we should ignore the intrusion aspect of publicity tort claims. The intrusion tort is framed in a way that only arises when there is no publication.292 However, as Wragg’s discussion indicates, there is perhaps little substantive difference between the two torts. In Faesenkloet v Jenkin, Asher J made comments to the same effect.293 More important than recognising one unitary tort,294 therefore, is that the courts realise the harm in publicity tort cases can alsoo come from the intrusiveness of the camera being there itself or the consequences media attention may bring, rather than the disclosure.
In cases involving involuntary subjects exposed to media attention, the court should also consider the multifaceted harm that can stem from online posts, especially in today’s digital context. The contemporary media environment means footage of involuntary subjects can be broadcast on television and shared online. This online presence can introduce varying degrees of harm due to the pervasive and lasting nature of the internet.
However, it is important to recognise that not all posts on the internet will result in the same level of harm. There is a clear difference between something that is widely shared in popular
290 Moore, above n 73, at 420.
291 C v Holland, above n 260, at [93].
292 C v Holland, above n 260, was developed as a variant of the Hosking tort because there was no publication in the case.
293 Faesenkloet v Jenkin [2014] NZHC 1637 at [38].
294 Although this could be an option for the courts consider in the future.
communication channels and something that is technically available, yet only accessed by a small number of people.
This is an area that the New Zealand courts have yet to thoroughly consider. The English courts have, however, given some thought to the issue. In the case of PJS v News Group Newspapers, the Supreme Court of the United Kingdom ordered that the injunction prohibiting the publication of a news article continue, despite the story the defendant was proposing to publish already being available on other sources on the internet.295 It was held that because the defendant’s publication would have been on a “qualitatively different medium” it would have caused more harm.296The Court considered this would likely result in a “media storm”, where the claimant and his family would face exaggerated media attention and scrutiny.297 Therefore, because the injunction would prevent more harm,298 it was appropriate to continue.299
The Court in PJS distinguished between something being available on the internet in general and something being posted in “eye-catching headlines and sensational terms in a national newspaper”.300 The implication of this is that different types of posts on the internet, made by different defendants or posted on different platforms, may be more or less harmful. Therefore, a more nuanced acknowledgement of who the defendant is, what platform they are posting on, and from what capacity they are doing this may be relevant in assessing harm.
The Supreme Court of the United Kingdom’s approach is not inconsistent with my analysis in Part II. There, I suggested that new technologies can magnify breaches of privacy by enabling more intense and ongoing scrutiny of the disclosed material to a potentially greater audience. This is something that could be taken into account in the reasonable expectation assessment. Then, at the offensiveness stage, a judge could determine the exact level of harm caused or
295 PJS v News Group Newspapers Ltd, above n 288, at [4] per Lord Mance.
296 At [1], [35[, [45] per Lord Mance.
297 At [35], [44] per Lord Mane and [63], [64] per Lord Neuberger.
298 Ar [1] per Lord Mance.
299 CTB v News Group Newspapers Limited [2011] EWHC 1326 (QB) at [24]- [25], which was cited PJS v News Group Newspapers Ltd, above n 288, at [29] per Lord Mance and at [61] per Lord Neuberger.
300PJS v News Group Newspapers Ltd, above n 288, at [68] per Lord Neuberger. The same distinction was made in the Leveson Inquiry, explaining that mass media outlets magnify privacy interferences because they create a story that everyone will be talking about. See: Leveson, above n 55, at 737. This was endorsed in PJS at [31] per Lord Mance. See also: CTB v News Group Newspapers Limited, above n 299, at [24]-[25], which was cited in PJS at [29] per Lord Mance. and at [61] per Lord Neuberger.
likely to be caused by the particular disclosure in that case. It may be that some posts on the internet are not “front-page” enough to meet the threshold of offensiveness.
On one reading, the broad contextual assessment under the reasonable expectation limb could incorporate these considerations of harm. If so, this paper would simply add to the literature arguing for the courts to remove offensiveness requirement. The argument being made here, however, is that the uncertainty in how the current form of the tort will be applied is more pressing than the existence of the element itself.
The potential abandonment of the element is, however, likely to be a long process. Only a limited number of cases make it to the Court of Appeal.301 A clarification of the current law, however, is something that can be actioned by lower courts. The clarification I am suggesting does not require any reform of the current form of the law that was established in Hosking and developed in Hyndman and Peters.302 I have suggested giving an analytical meaning to the what needs to be assessed for offensiveness that could be adopted by lower courts and still be consistent with the doctrine of precedent.
The offensiveness element purports to require harm and these considerations can give meaning to what harm is in the context of media attention. Therefore, in the interim, the court should consider the intrusiveness of the claim in front of them when assessing offensiveness. Moreover, the court should also recognise that there may be different levels of harm depending on the internet-specific context. This analysis would help a judge to better appreciate the harm caused by the disclosure or proposed discourse. It could reign in the focus and help to achieve a more principled application of the element that more appropriately balances privacy and freedom of expression.
301 Since Hosking, the only cases that have made it to the Court of Appeal or Supreme Court have been: Hyndman v Walker, above n 36,; Peters v Attorney-General, above n 36; Rogers v Television New Zealand Ltd, above n 78; New Zealand Ltd v Rogers, above n 159; and Buxton v AFB Treasury Ltd [2022] NZCA 100. Note that Buxton is an ongoing case, which was an appeal from a strike out application. Clearly, not many cases that have reached the appellate courts in the 19 years since Hosking was decided.
302 Developed especially in relation to the reasonable expectation assessment, See Part I(A)(1) for a discussion on the apparent acceptance in the recent Court of Appeal decisions of a broader contextual approach under the first limb.
Conclusion
Some people love the idea of having their fifteen minutes of fame. However, having media attention given to the private aspect of one’s life they have experienced in public would be the worst nightmare of many others. The common factor in both scenarios is that individuals want the choice of whether the private aspects of their lives are given media attention or not. However, as technology becomes more advanced and the media landscape changes, the potential for any one of us to become involuntary subjects of media attention also increases. Therefore, it is crucial that the publicity tort appropriately balances the defendant’s freedom of expression and the involuntary subject’s desire for privacy.
Although technological advances tend to favour defendants, this paper has argued that there is capacity within the current form of the tort to achieve the correct balance between the interests of both parties. The apparent acceptance of the wide contextual approach to determining reasonable expectations of privacy allows judges to incorporate changes in the modern technological climate in their assessment. Judges do, however, need to ensure that this modern context is at the forefront of their minds.
Judges also need to ensure that they do not view the defence in an overly expansive way, giving too much deference to editorial discretion. The correct application of the defence requires the judge to only afford a permissible range of journalistic latitude to issues of public concern. Ultimately, it is for the court to decide whether this range has been exceeded or not.
The ultimate problem this paper has identified with the publicity tort is the need for clarity regarding the exact analytical function of the offensiveness assessment. Whether a court takes the next opportunity to remove the element, I urge that, at the very least, the court better articulate what should be assessed under this limb. I propose that the court locates the particular intrusion aspect of a given publicity claim and assess this for the harm required by the offensiveness element. Moreover, the court should also consider the different levels of harm that may arise when media footage of involuntary subjects is posted by different people, entities, or platforms.
If the court can remedy these areas of uncertainty in the publicity tort, the involuntary subject’s legal entitlement to choose who knows what about themselves can be appropriately balanced
with the defendant’s right to freedom of expression in today’s modern context. Ultimately, it is only when this balance is achieved that those who “did not want to be a celebrity” can, in fact, use the law’s protection to “get out of here”.303
303 This is play words to the title of this paper “I [Did Not Want To Be] a Celebrity... Get me Out of Here!”, which is a play on words to the title of the reality programme I’m a Celebrity, Get Me Out of Here!, above n 1.
Bibliography
A Cases
Andrews v Television New Zealand [2009] 1 NZLR 220.
Brown v Attorney-General [2006] DCR 630, [2006] NZAR 552.
Buxton v AFB Treasury Ltd [2022] NZCA 100.
C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672.
Canwest TVWorks Ltd v XY [2007] NZHC 2018; [2008] NZAR 1.
Faesenkloet v Jenkin [2014] NZHC 1637.
Henderson v Walker [2019] NZHC 2184.
Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1.
Hyndman v Walker [2021] NZCA 25, [2021] 2 NZLR 685.
L v G [2002] DCR 234.
NH v Radio Virsa [2022] NZHC 2412.
Peters v Attorney-General [2021] NZCA 355, [2021] 3 NZLR 191.
Peters v Bennett [2020] NZHC 761, [2020] 2 NZLR 699.
Rogers v Television New Zealand Ltd [2007] NZSC 91, [2008] 2 NZLR 277.
Television New Zealand Ltd v Rogers [2006] NZCA 432; [2007] 1 NZLR 156.
CD v TV3 Network Services Ltd BSA 2000-141, 2000-142, 2000-143, 12 October 2000.
Lewis v Television New Zealand Ltd BSA 2007-109, 12 February 2008.
Malskaitis v TVWorks Ltd BSA 2011-039, 8 July 2011.
MQ v Television New Zealand Ltd BSA 2011-033, 13 September 2011.
DS v Television New Zealand Ltd BSA 2011-144, 17 July 2012.
FS v Television New Zealand BSA 2012-036, 19 December 2012.
Ali v Channel 5 Broadcast Ltd [2018] EWHC 298 (Ch).
Bloomberg v ZXC [2022] UKSC 5.
Campbell v MGN Limited [2002] EWCA Civ 1373.
Campbell v MGN Ltd [ 2004] UKHL 22, [2004] 2 AC 457.
CTB v News Group Newspapers Limited [2011] EWHC 1326 (QB).
CTB v News Group Newspapers Limited [2011] EWHC 1334 (QB). Murray v Express Newspapers Plc [2008] EWCA Civ 446, [2009] Ch 481. PJS v News Group Newspapers Ltd [2016] UKSC 26.
Richard v BBC [2018] EWHC 1837.
Sicri v Associated Newspapers Ltd [2020] EWHC 3541 (QB), [2021] 4 WLR 9.
Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63, (2001) 208 CLR 199.
Shulman v Group W Productions Inc 955 P 2d 469 (Cal.1998).
B Legislation and Codes
American Law Institute Restatement of the Law of Torts (2nd ed, St Paul, Minnesota, 1979). Broadcasting Standards Authority Broadcasting Standards in New Zealand Codebook (2022). New Zealand Bill of Rights Act 1990.
C Books and Chapters in Books
Aharon Barak The Judge in a Democracy (Princeton University Press, Princeton, 2006).
Stanley I Benn “Privacy, Freedom, and Respect for Persons” in J Roland Pennock and John W Chapman (ed) Privacy and Personality (Routledge, New York, 2017) 1.
Peter Cane The Anatomy of Tort Law (Hart Publishing, Oxford, 1997).
Ursula Cheer Burrows and Cheer: Media Law in New Zealand (8th ed, LexisNexis, Wellington, 2021).
Charles Fried “Privacy [A Moral Analysis]” in Ferdinand David Schoeman (ed) Philosophical Dimensions of Privacy: An Anthology (Cambridge University Press, Cambridge, 1984).
Hyman Gross “Privacy and Autonomy” in J Roland Pennock and John W Chapman (ed)
Privacy and Personality (Routledge, New York, 2017) 169.
Julie C Inness Privacy, Intimacy, and Isolation (Oxford University Press, New York, 1992).
Immanuel Kant Groundwork of the Metaphysics of Morals (Mary Gregor (ed), Cambridge University Press, Cambridge, 1997).
Graeme T Laurie Genetic Privacy: A Challenge to Medico-legal Norms (Cambridge University Press, Cambridge, 2002).
N A Moreham “Why Is Privacy Important? Privacy, Dignity and Development of the New Zealand Breach of Privacy Tort” in Jeremy Finn and Stephen Todd (ed) Law, Liberty, Legislation: Essays in Honour of John Burrows QC (LexisNexis, Wellington, 2008).
N A Moreham and Mark Warby (ed) Tugendhat and Christie: The Law of Privacy and the Media (3rd ed, Oxford University Press, Oxford, 2016).
N A Moreham and Yvette Tinsley “Media Intrusion into Grief: Lessons from the Pike River Mining Disaster” in Andrew T Kenyon Comparative Defamation and Privacy Law (Cambridge University Press, Cambridge, 2016) 115.
Helen Nissenbaum Privacy in Context: Technology, Policy, and the Integrity of Social Life
(Stanford Law Books, Stanford, 2010).
Patrick O’Callaghan Refining Privacy in Tort Law (Springer Berlin, Heidelberg, 2012).
Stephen Penk and Rosemary Tobin (ed) Privacy law in New Zealand (Thomson Reuters, Wellington, 2010).
Stephen Penk and Rosemary Tobin (ed) Privacy law in New Zealand (2nd ed, Thomson Reuters, Wellington, 2016).
Stephen Penk and Nikki Chamberlain (ed) Privacy law in New Zealand (3rd ed, Thomson Reuters, Wellington, 2023).
Rosemary Tobin and David Harney New Zealand Media and Entertainment Law (Thomson Reuters New Zealand Ltd, Wellington, 2017).
Alan E Westin Privacy and Freedom (Bodley Head, London, 1970).
D Journal Article
Patricia Sánchez Abril “Recasting Privacy Torts in a Spaceless World” (2007) 21 Harv J L & Tech 1.
Patricia Sánchez Abril and Alissa del Reigeo “Judging Offensiveness: A Rubric for Privacy Torts” (2022) 100 NC L Rev 1557.
Tim Bain “The Wrong Tort in the Right Place: Avenues for the Development of Civil Privacy Protections in New Zealand” [2016] CanterLawRw 14; (2016) 22 Canta LR 297
Edward J Bloustein “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser” (1964) 39 NYU L Rev 962.
Clay Calvert “The Voyeurism Value in First Amendment Jurisprudence” (1999) 17 AELJ.
Ursula Cheer “The Future of Privacy: Recent Legal Developments in New Zealand” [2007] CanterLawRw 7; (2007) 13 Canta LR 169.
Steve Foster “TV Reality Shows and the Balance Between Privacy and Public Interest Broadcasting” (2018) 27 Nott LJ 103.
William Fussey “Determining Reasonable Expectation of Privacy in the Intrusion into Seclusion Tort” (2016) 22 Canta LJ 270.
Ruth Gavison “Privacy and the Limits of Law” (1980) 89 Yale LJ 421.
Andrew Geddis “The State of Freedom of Expression in New Zealand: An Admittedly Eclectic Overview” [2008] OtaLawRw 5; (2008) 11 Otago LR 657.
Hyman Gross “The Concept of Privacy” (1967) 42 NYULR 34.
Kirsty Hughes “A Behavioural Understanding of Privacy and its Implications for Privacy Law” (2012) 75 MLR 806.
Andrew J McClurg “Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places” (1995) 73 NCL Rev 989.
Jennifer Moore “Traumatised Bodies: Towards Corporeality in New Zealand’s Privacy Tort Law Involving Accident Survivors” (2011) 14 NZULR 387.
N A Moreham “Privacy in the Common Law: Doctrinal and Theoretical Analysis” (2005) 121 LQR 628.
N A Moreham “Privacy in Public Places” (2006) 65 CLJ 606.
N A Moreham “A Conceptual Framework for the New Zealand Tort of Intrusion” (2016) 47 VUWLR 283.
N A Moreham “Abandoning The “High Offensiveness” Privacy Test” (2018) 4 CJCCL 1.
N A Moreham “Unpacking the Reasonable Expectation of Privacy Test” (2018) 134 LQR 651.
N A Moreham and Yvette Tinsley “The Impact of Grief Journalism on its Subjects: Lessons from the Pike River Mining Disaster” (2018) 10 JML 189.
N A Moreham “Conversations with the Common Law: Exposure, Privacy and Societal Change” (2021) 52 VUWLR 563.
N A Moreham “Privacy, Freedom of Expression and Legitimate Audience Interest” (2021) 139 LQR 412.
Elizabeth Paton-Simpson “Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places” (2000) 50 UTLJ 305.
Richard A Posner “The Right of Privacy” (1978) 12 Ga L Rev 393. William L. Prosser “Privacy” (1960) 48 CLR 383.
James Rachels “Why Privacy is Important” (1975) 4 Philos Public Aff 323.
Jeffrey H Reiman “Driving to the Panopticon: A Philosophical Exploration of the Risks to Privacy Posed by the Highway Technology of the Future” 11 Santa Clara High Tech LJ 27.
Daniel J Solove “Conceptualizing Privacy” (2002) 90 CLR 1087. Daniel J Solove “A Taxonomy of Privacy” (2006) 154 U Pa L Rev 447.
Lior Jacob Strahilevitz “A Social Networks Theory of Privacy” (2005) 72 U Ch L Rev 919. Judith Jarvis Thomson “The Right to Privacy” (1975) 4 Philos Public Aff 295.
Samuel D. Warren and Louis D. Brandeis “The Right To Privacy” (1890) 4 Harv L Rev 193. Catlin Wilson and Daniel Nilsson “Protecting our Person Sphere” (2013) NZLJ 8.
Dianna M Worley “Shulman v. Group W Productions: Invasion of Privacy by Publication of Private Facts – Where Does California Draw the Line Between Newsworthy Information and Morbid Curiosity?” (2000) 27 W St U L Rev 535.
Paul Wragg “Recognising a Privacy-Invasion Tort: The Conceptual Unity of Informational and Intrusion Claims” (2019) 78 CLJ 409.
E Reports
Law Commission A Conceptual Approach to Privacy (NZLC MP19, 2007). Law Commission Privacy: Concepts and Issues (NZLC SP19).
Justice Leveson The Leveson Inquiry: An Inquiry into the Culture, Practices and Ethics of the Press (The Stationary Office, London, 2012).
Mobius Research and Strategy The Real Deal: Experiences of and Attitudes Towards Reality TV (Broadcasting Standards Authority, 1 September 2011).
F Speeches
Helen Winkelmann, Justice of the Court of Appeal “Sir Bruce Slane Memorial Lecture” (November 2018).
G Dissertations and Theses
Jessica MacPherson “On What Authority? In Search of a Legal Authority for Government Facilitation of “Media Ride-Along” Programmes and the Privacy Harm They Cause” (LLB (Hons) Dissertation, Victoria University of Wellington, 2020).
Thomas Levy McKenzie “The New Intrusion Tort: The News Media Exposed?” (LLB (Hons) Dissertation, Victoria University of Wellington, 2014).
Kent Newman “Documentary Reality Television’s Privacy Problem” (LLB Masters, Victoria University of Wellington, 2020).
Lisa Tat “Plaintiff Culpability and the New Zealand Tort of Invasion of Privacy” (LLB (Hons), Victoria University of Wellington, 2008).
H Television Programmes
“Season 1, Episode 8” Firefighters (New Zealand, Greenstone TV Ltd, 2004).
111 Emergency (New Zealand, 2011–2012).
Border Patrol (New Zealand, Greenstone TV Ltd, 2004–2023).
Coastwatch (New Zealand, Greenstone TV Ltd, 2003–2012).
Dog Squad (New Zealand, Greenstone TV Ltd, 2011–present).
I’m a Celebrity, Get Me Out of Here! (United Kingdom, Granada Productions, 2002–present).
Motorway Patrol (Greenstone TV Ltd, 1999–present).
Mt Hutt Rescue (United States, Bossanova 2023).
Piha Rescue (New Zealand, South Pacific Video, 2001–2007).
Ten 7 Aotearoa (New Zealand, Screentime, 2001–2023).
I Internet Resources
“Covid 19 Omicron: Naked protestor ‘traumatised’ by police actions at parliament” The New Zealand Herald (online ed, New Zealand, 11 February 2022).
Dylan Terry “Big Down Under: Watch moment streaker runs naked along Australia GP track before he is tackled by security” The US Sun (online ed, New York, April 5 2023).
EJessica Elgot “Semi-naked climate protestors disrupt Brexit debate” The Guardian (online ed, London, 1 April 2019).
Ben Graham “Topless vegan activist slams ‘sexist’ cop request during Peth protest” The New Zealand Herald (online ed, New Zealand, 24 May 2022).
“Streaker in wheelchair halts Auckland football match” 1 News (online ed, New Zealand, June 19 2023).
Ruby Shaw “Nude streaker interrupts Alexandra bowls tournament” The New Zealand Herald
(online ed, New Zealand 28 February 2023).
Crystal Wu “Extinction Rebellion Protestors: Topless women lock themselves to UK Parliament to protest against climate change” Newshub (online ed, New Zealand, 11 September 2020).
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/UOtaLawTD/2023/4.html