Published date01 December 2015
Citation(2015) 27 SAcLJ 731
AuthorStephen TODD LLM (Sheffield), LLD (Canterbury); Barrister (Inner Temple); Professor of Law, University of Canterbury, New Zealand; Professor of Common Law, University of Nottingham, United Kingdom.
Date01 December 2015
A Report from New Zealand

In a number of decisions in recent years the courts in the UK and in New Zealand have come to recognise a tort of invasion of privacy by way of publicity given to private facts. The High Court in New Zealand has now taken a further step and has recognised a separate tort of invasion of privacy by way of intrusion into seclusion. The decision goes to the heart of the notion of privacy, for it requires consideration of the circumstances in which one has a legal right to be left alone. The article examines first how far existing torts may protect such a right, and then considers the suggested elements to a tort of intrusion in its own right. It concludes that judicial fears about recognising a “high level” principle of privacy as giving rise to a right of action are not really justified.

I. Introduction

1 A person's interest in privacy may be said to be invaded where, without that person's consent, others see, hear or read about what he or she does or says, or what others say or do comes unwillingly to his or her attention. So understood, any right to privacy amounts to no more than the right to be left alone: yet no-one can live so as to be free from all unwanted intrusions by or contact with others. Indeed, one person's interest in solitude or seclusion has to be set against another's interest in being free to speak, to look or to act as he or she wishes. At the very least, then, laying down principles of tort liability which seek to distinguish between permissible and impermissible intrusions is not at all a straightforward exercise, and must require careful evaluation and discrimination.

2 The conceptual genesis of a tort protecting individual privacy is found in a seminal article by Samuel Warren and Louis Brandeis.1 Some 70 years later William Prosser would describe the law in terms of four separate privacy torts, their common feature being that each represented an interference with the right of the plaintiff to be left alone.2 The first was “intrusion upon the plaintiff's seclusion or solitude, or into his private affairs”; the second was the “public disclosure of embarrassing private facts about the plaintiff”; the third was “publicity which places the plaintiff in a false light in the public eye”; and the fourth was “appropriation, for the defendant's advantage, of the plaintiff's name or likeness”.3 This classification was adopted by the Restatement (Second) of Torts (1977) (“Restatement”).4

3 In the UK, by contrast, the law of privacy remained largely undeveloped until the passing of the English Human Rights Act 1998,5 giving effect in UK law to the European Convention on Human Rights6 and, in particular, introducing the right to privacy in Art 8 of the Convention. But even thereafter the House of Lords displayed notable caution, as the decision in Wainwright v Home Office7 (“Wainwright”) well demonstrates. The claimants, a mother and son, were strip-searched for drugs during a prison visit in circumstances that did not comply with the English Prison Rules 1964.8 Both claimants were humiliated and depressed and the second claimant, who was mentally impaired, developed post-traumatic stress disorder. The trial judge allowed the claims on the basis that the defendants' conduct amounted to a trespass to the person and an invasion of privacy. In the Court of

Appeal it was held that requiring the claimants to remove their clothes without any bodily contact did not constitute trespass, and that apart from one instance involving a touching of the second claimant, which was conceded to be a battery, the prison officers had committed no wrongful acts. The claimants appealed to the House of Lords, arguing that there had been an actionable invasion of their privacy and that the defendants had intentionally caused harm within the meaning of the principle in Wilkinson v Downton.9 For the moment only the first of these claims will be considered.10

4 Lord Hoffmann (delivering a judgment with which their Lordships all agreed) recognised that the question whether a tort protecting a right to privacy existed, or should exist, had been much debated in common law jurisdictions. English law in particular had been unwilling, perhaps unable, to formulate any high-level principle which could perform a useful function in enabling one to deduce the rule to be applied in a concrete case. However, there were a number of common law and statutory remedies of which it might be said that one at least of the underlying values they protected was a right to privacy. There were also extra-legal remedies under codes of practice applicable to broadcasters and newspapers. However, there were gaps: cases in which the courts had considered that an invasion of privacy deserved a remedy which the existing law did not offer. Sometimes the perceived gap could be filled by judicious development of an existing principle. The law of breach of confidence had in recent years undergone such a process.11 On the other hand an attempt to create a tort of telephone harassment by a radical change in the basis of the action for private nuisance had been held to be a step too far.12 What the courts had refused to do was to formulate a general principle of “invasion of privacy” (the quotation marks signifying doubt about what in such a context the expression would mean) from which the conditions of liability in the particular case could be deduced. There was a critical difference between privacy as a value that underlay the existence of a rule of law, which might indicate the direction in which the law should develop, and privacy as a principle of law in itself. In the instant case, the strip-searches about which the plaintiffs complained could not be actionable on the latter, essentially indeterminate, basis. Rather, a remedy, if any, had to be found in existing and accepted principles of law, guided by privacy as an important underlying value.

5 Of course, since Wainwright was decided a person's interest in protecting his or her privacy has been achieving greater recognition in many significant ways. As regards tort liability, the key development may be seen in the decisions determining the ambit of a tort of invasion of privacy by publicity given to private facts. In the UK the decisions initially were built upon the action in equity for breach of confidence, but in Campbell v MGN Ltd13 the House of Lords recognised that this formulation was awkward and that the essence of the cause of action was the misuse of private information. As expressed by Lord Hoffmann, the tort focused upon the protection of human autonomy and dignity — the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people.14 In Hosking v Runting15 (“Hosking”), the leading decision in New Zealand, a majority of the Court of Appeal16 reached a similar conclusion. Gault P and Blanchard J identified the two fundamental requirements for a successful claim as (a) the existence of facts in respect of which there was a reasonable expectation of privacy; and (b) publicity given to those private facts that would be considered highly offensive to an objective reasonable person. However, there was a defence enabling a publication to be justified by a legitimate public concern in the information. Tipping J put the matter slightly differently, preferring to say that the level of offensiveness of the publication was something to be taken into account when assessing whether or not there was a reasonable expectation of privacy. There are now many cases in New Zealand and in other common law jurisdictions exploring the elements to the new tort. Key issues include the nature of “private facts”, whether there is a need for the separate requirement that the publicity be highly offensive, whether the plaintiff must always be identified, what mental element must be shown and the precise relationship between a tort protecting privacy and the law of defamation.17

6 The concern now is not directly with these developments but with the question whether any liability in tort for interfering with privacy is limited to the case where a defendant wrongfully publishes private information about the plaintiff, or whether there are other interferences with privacy falling outside the ambit of the Hosking tort which are independently actionable. The question arose in the

New Zealand High Court in C v Holland18 (“Holland”), where the court was invited to recognise a tort of invasion of privacy by intrusion into seclusion. The question is highly significant, for it takes one to the heart of the notion of privacy and requires consideration on whether or in what circumstances one does in fact have a legal right to be left alone. The kinds of cases in which the question may need resolution are many and various. They include surreptitiously, or openly, photographing or videoing a person; looking through a persons' financial affairs; flying drones over another's land; installing a tracking device in someone's vehicle; intercepting another's communications; and searching a person's property, in each case without publishing whatever may be heard, seen or discovered. The lawfulness of at least some of these and other intrusive activities will very likely be governed by statute. The concern here is with claims by victims for compensation and/or an injunction and the availability of an action in tort.

7 First, and quite briefly, the protection that may be afforded by certain existing and well-established causes of action will be examined. Of course, in a broad sense an element of intrusion may be involved in virtually any tort claim, for the allegation will be that the defendant, in one way or another, has intervened to disturb an existing state of affairs enjoyed by a plaintiff and thereby caused damage. If such intrusion causes physical injury to person or property, or economic loss, the claim is likely to be governed by...

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