On 25 March, the Court of Appeal in New Zealand reviewed recent developments in the law of confidence from around the world, including the leading English cases. It confirmed that although in this country there remains no general law of invasion of privacy, in New Zealand the courts would uphold a common law tort of privacy where wrongful publicity is given to private lives.
The claimants, Mr and Mrs Michael Hosking, are a “celebrity couple” in New Zealand, where Michael Hosking is a television presenter.
Numerous articles have been published about the couple for more than 10 years, including details (voluntarily provided) of their reliance on IVF treatment and Mrs Hosking’s pregnancy. She gave birth to twin girls in June 2001, after which time the couple declined to give interviews about the children or allow them to be photographed.
The couple separated in August 2002 and New Idea! intended to publish an article discussing how Hosking would be spending that Christmas away from his children.
In December 2002, without Mrs Hosking’s knowledge, photographs were taken of the twins as they were being pushed in their stroller on a high street. Before publication of the article and the photographs, Mr and Mrs Hosking commenced proceedings against the publisher of New Idea! and the photographer, seeking a permanent injunction to prevent such photographs being taken and/or published.
The defendants agreed not to publish until the legal proceedings had been concluded. Before the High Court in New Zealand, the claimants conceded that because the photographs were taken in a public place there was no claim in breach of confidence. The court was only concerned with whether or not a freestanding tort of privacy existed. The judge found against Mr and Mrs Hosking, but also that there should not be a privacy tort and the law should be filled by the New Zealand Parliament and not the courts. The Hoskings appealed.
The New Zealand Court of Appeal took a different approach. In addition to a privacy claim, the claimants revived their confidence claim and made alternative claims for misappropriation of image, trespass to the person and negligent infliction of emotional harm on the twins. Their primary case was, however, that the courts ought to recognise an established tort of privacy to restrain publication of information, which, although not deeply personal or confidential in an ordinary sense, was sufficiently private for publication to be unjustified and in which they had a reasonable expectation of privacy (subject to countervailing public interest arguments).
The New Zealand appeal judges reviewed privacy law around the world. They criticised the English approach as confusing a distinct concept of privacy with the law of confidence. Australian jurisprudence took matters no further forward and certain states in Canada offered a form of statutory privacy protection. The influence of US law was recognised, as were differing constitutional frameworks.
New Zealand’s Bill of Rights Act includes the right to freedom of expression. Interestingly, the act excludes any right to privacy, although the court did not see this as interfering with its incremental development of the common law. This and other statutes were considered only to provide limited privacy protection and the courts were bound to step in. The court recognised the significance of freedom of expression and the need for compelling evidence of a breach of the law before publication would be restrained by injunction. Damages would ordinarily be sufficient remedy.
In summary, the new privacy tort in New Zealand will protect claimants from humiliating, distressful or otherwise harmful publication of private information, such publication objectively being seen as highly offensive to a reasonable person. There is a public interest defence and trivial invasions of privacy should not be actionable. Public figures’ expectations of privacy will be reduced, although they too must be able to protect some aspects of their lives from public scrutiny.
Only three of the five New Zealand judges agreed that the English courts had artificially strained the law of confidence and that there was a need for a new tort of privacy. The minority were unpersuaded and concerned at the chilling effect of an “ill-defined” and “shadowy” tort on freedom of expression. All five, however, agreed that publication of photographs of the twins did not invade their privacy. The appeal was dismissed.
While one dissenting judge considered this issue one of semantic imprecision, it remains to be seen whether or not the English courts will take on board the criticism of their antipodean cousins.
Benjamin Beabey is a solicitor in the media team at Farrer & Co
by Benjamin Beabey