C v Holland

• Jurisdiction: New Zealand
• Judge: Whata J
• Judgment Date: 24 August 2012
• Neutral Citation: [2012] NZHC 2155
• Docket Number: CIV 2011-409-002118
• Court: High Court
• Date: 24 August 2012

BETWEEN

C

Plaintiff

and

Holland

Defendant

[2012] NZHC 2155

CIV 2011-409-002118

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

Counsel:

S Rollo and D Webb for Plaintiff

G A Hair for Defendant

JUDGMENT OF Whata J

1 C was an occupant in a house owned by her boyfriend and Mr Holland. Mr Holland surreptitiously installed a recording device in the roof cavity above the shower and toilet. He videoed C while she was showering. C discovered the videos and was deeply distressed. She has commenced an action against Mr Holland based on invasion of privacy. Mr Holland accepts that he invaded C's privacy. The critical issue I must determine is whether invasion of privacy of this type, without publicity or the prospect of publicity, is an actionable tort in New Zealand.

Facts

2 The facts are agreed.

• 1. The plaintiff is 25 years of age.

• 2. The defendant is 27 years of age and employed as a builder.

• 3. In June 2008 the defendant and the plaintiff's boyfriend, Mr Z, purchased a 5 bedroom house located at […], where they both resided.

• 4. For a period of some 2 years, the plaintiff would stay at the property approximately 4 nights per week before moving in with Mr Z in July 2010.

• 5. On a single occasion, in the period between 27 December 2010 and 9 January 2011 the defendant used a handheld digital camera and recorded 2 video clips of the plaintiff in the bathroom.

• 6. Each of the videos show the plaintiff both partially dressed and completely naked with clear view of her front (pubic area and breasts) and back. The first shows her undressing and tending to her bikini line, entering the shower, showering and exiting to retrieve items. The second shows her exiting the shower and dressing before she exits the bathroom.

• 7. The defendant took the video clips from the roof cavity above the bathroom within the ceiling area. The roof cavity is a storage area directly accessible as part of the second story of the property.

• 8. Video 1 runs for a time of approximately 1 minute 15 seconds, Video 2 runs for a length of 2 minutes 31 seconds.

• 9. The defendant downloaded the 2 video clips onto his external hard drive.

• 10. On Sunday 16 January 2011 the plaintiff and Mr Z were at the property with friends and wanted to watch some movies off the defendant's laptop. He gave them permission to use his laptop for the movies that he had stored on it.

• 11. While the plaintiff and Mr Z were searching for the movies, Mr Z located a link to one of the defendant's recently viewed files titled “[…]” being the plaintiff's nickname.

• 12. The following day Mr Z asked the defendant if he could use the defendant's external hard drive to search for some movies and ultimate fighting clips that he had downloaded. The defendant gave Mr Z permission to use his external hard drive for that purpose.

• 13. When searching the hard drive Mr Z was unable to find the link to the document file titled “[…]”.

• 14. The defendant subsequently left the property and went to stay the night at a girlfriend's house. While the defendant was gone, Mr Z went into the defendant's room and found a further external hard drive. Upon searching this hard drive, Mr Z located the two videos of the plaintiff.

• 15. After taking a copy of the video clips, the plaintiff and Mr Z delivered the defendant's hard drive to the New Zealand police who thereafter retained possession of the hard drive before destroying it at the conclusion of the ensuing criminal proceedings. The plaintiff and Mr Z retained the copy.

• 16. There is no evidence that the defendant published or showed the video clips to any person or entity.

• 17. The plaintiff did not consent to the defendant watching her in the shower or taking the video clips.

• 18. After the incident, the plaintiff resided at the property on an intermittent basis until 22 February 2011 and from mid March until Easter 2011.

• 19. The defendant was charged under Section 216H of the Crimes Act (making an intimate visual recording) and after entering a guilty plea he was convicted, ordered to pay $1,000 in emotional harm reparation and then discharged without penalty.

• 20. The defendant's actions were the cause of harm to the plaintiff that was more than de minimis. However, in the event that he is held liable, the defendant reserves his right to contend that the reparation of $1,000 is adequate compensation.

Claim

3 Counsel for C, Mr Rollo, contends that Mr Holland's actions give rise to damages for breach of C's right to privacy. More specifically he submits:

• (a) The Court of Appeal in Hosking v Runting confirmed that there is an actionable tort for invasion of privacy, subject to two fundamental requirements: 1

  • i. The existence of facts in respect of which there is a reasonable expectation of privacy;

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

• (b) The Court did not foreclose the possibility of other actionable torts for the invasion of privacy.

• (c) The principles in Hosking can and should be developed to apply to

  the present facts, with the result that the defendant should be liable to the plaintiff for his violation of her reasonable expectation of privacy.

• (d) The specific nature of the actionable tort can be drawn from the equivalent tort recognised in the United States and articulated by the Restatement (Second) of Torts (1977) at § 652B as follows:

  One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

• (e) The requirement for a highly offensive intrusion should be replaced with a simpler test of infringement of a reasonable expectation of privacy.

• (f) There are no principled bases for objecting to this development given that it is an incremental extension of the tort identified in Hosking and serves a clear remedial purpose in line with the historical development of torts in the common law.

• (g) This development is more broadly supported by international conventions that affirm a right to privacy, and s 21 of the New Zealand Bill of Rights Act 1990 (BORA) which affirms a right to be free from search and seizure and the strong conceptual underpinning to analogous torts (such as breach of confidence).

• (h) Providing a remedy for the violation of C's privacy would also be consistent with the development of common law for wrongful injury, for example, in the context of battery.

Defence

4 Mr Hair for the defendant submits:

• (a) The majority judgment in Hosking states that an action based on the tort of infringement of privacy rights requires publicity of private facts. There is no publicity in this case. 2 The minority judgments eschew the development of a privacy tort altogether.

• (b) There is no principled basis upon which to develop an additional limb or refinement to the Hosking tort. Hosking itself was an incremental addition to longstanding principles dealing with breach of confidence where revelation of private facts is critical. The tort proposed by the plaintiff has no such ancestry and indeed is cut well adrift from it.

• (c) There is no support for such a tort of simple intrusion into privacy in other common law jurisdictions, such as Australia and the United Kingdom. 3 To the extent that there is support for such a tort, it derives from genuinely foreign constitutional arrangements, for example in the United States and Canada.

• (d) In the absence of a principled or other historical basis for developing a tort of intrusion into privacy simpliciter, no serious consideration has been given to the policy considerations arising from development of an additional privacy arm or new privacy tort. The proper and most appropriate response to such policy considerations must be with statute.

• (e) This is not an administrative or criminal law case dealing with the exercise of state power where the Court's supervisory role is engaged.

• (f) There is also a principled objection to developing the law by way of analogy to other torts of intentional wrongs causing injury. In all of those cases there is a direct intention to inflict harm to the body or to property. Here the harm is consequential and there was no intention

  or evidence of an intention to harm C.

• (g) The potential ramifications of a new privacy tort of intrusion could be significant and capture a range of conduct that might otherwise be innocuous: for example, a young man walks into a bathroom in a shared flatting arrangement and happens upon a young woman in a state of undress. Is that an intentional intrusion upon seclusion that might attract damages?

• (h) The breadth of a tort of intrusion would engulf and supplant the Hosking tort.

• (i) This Court generally does not have a role in filling gaps caused by alleged moral wrongs. Parliament is the proper place for dealing with any such emerging wrongs.

Issues

5 The central issue is whether a tort of intrusion upon seclusion should form part of the law of New Zealand.

6 I am in no doubt that:

• (a) Mr Holland intruded into C's solitude and seclusion when he recorded video clips of C in the bathroom partially undressed or naked; and

• (b) Mr Holland infringed a reasonable expectation of privacy when videoing C in the bathroom partially undressed or naked.

7 I am also in no doubt that Mr Holland's conduct was highly offensive to a reasonable person.

8 There is no existing authority in New Zealand for the proposition that an intrusion upon an individual's seclusion in breach of a reasonable expectation of privacy gives rise to an actionable tort in New Zealand. 4

9 Given that the intrusion based privacy claim in this case is so novel, I...