Determining Reasonable Expectation of Privacy in the Intrusion into Seclusion Tort

AuthorWilliam Fussey
PositionSolicitor at EY Law in Auckland
* Solicitor at EY Law in Auc kland. e author wishes to th ank his LLM supervi sor Associate
Professor Dr Nicole Moreham f or her constructive criticisms a nd support in the production
of this art icle.
W F*
As new and intrusive ways of invading a person’s privacy become increasingly
common, it is important that tort law has a satisfactory way of protecting
a person from intrusion. e case of C v Holland in 2012 created such a
protection mechanism, by importing the tort of intrusion into seclusion from the
USA. Whereas the rst tort of privacy introduced in New Zealand protects the
publication of private facts, intrusion into seclusion prevents access to a person
even if it does not result in dissemination of any personal inform ation. is article
focuses on how to determine when a reasonable expectation of privacy is satised,
suggesting it involves a detailed analysis of three suggested factors, modied from
Richard Wilkins’ approach in the US search and seizure context. e article
considers how the factors could be applied to an intrusion into seclusion claim in
New Zealand.
I. I 
e 2012 High Court case of C v Holland1 introduced the privacy tort
of intrusion into seclusion in New Zealand. In the ca se, C was lmed in the
shower by a camera surreptitiously installed by Mr Holland, causing C great
e purpose of the intrusion into seclusion tort is to protect the privacy
intrusion interest which, prior to the introduction of this cause of action, was
inadequately protected in the legal framework. is article aims to explore
what the intrusion interest is, and when and why it should be respected. It
addresses how the tort of intrusion into seclusion can best be applied and
developed in New Zea land.
Intrusion into seclusion is likely to become increasingly relevant.
Contemporary society is in the midst of an explosion of new technologies,
particularly since t he advent of the ubiquitous smartphone. A person’s phone
1 C v Holland [2012] 3 NZLR 672.
2 At [1] .
270 Canterbur y Law Review [Vol 22, 2016]
now has the capability to track a person using GPS,3 and to capture detailed
photographs and videos of people in compromising positions without the
subject even realising. Some cameras even have technology which enables
photographs to be taken through the cloth ing.4 ese examples only touch the
surface of a rapidly expanding area.
Intrusion into seclusion is the second tort of privacy to become part
of New Zealand’s law, with the publicity of private facts tort having been
armed by a narrow 3–2 judgment in Hosking v Runting5 in the Court of
Appeal in 2004.6 e Hosking tort protects people’s private information from
being published and therefore was unable to protect C from the intrusion she
suered in C v Holland , as no public ation was involved.
is article wil l rst examine what the intrusion interest is, then it will
summarise what the elements of an intru sion into seclusion action are and
should be, and, nally, it will analyse the crux of the tort: when a reasonable
expectation of privacy exists.
II. T I I
Before we start the ana lysis of the details of the New Zealand intrusion
into seclusion tort, it is important to consider how the intrusion interest is
conceived in theoretical accounts of privacy, why it is important and when it
is invoked.
A. How the intrusion interest is conceived
e intrusion interest encapsulates a person’s interest in not being accessed.
Intrusion and access to a person are essentia lly an interchangeable way of
saying the same thing. is concept is about recognising the intrinsic value
of people’s private spaces which they recognise as psychologically theirs, and
protecting against its unwa nted intrusion. Access to a person or intrusion
is engaged on a theoretical level whenever a person sees, hears, touches or
obtains information about another person. Essential ly, it involves an invasion
of someone’s person (or things closely associated with the person) by means of
the senses, technological devices that enable the use of the senses, or physical
prox im it y. 7 is includes access to a person’s information.
3 “Sm artphones a woma n’s worst enemy as jealous ex-par tners use GPS tr acking” (29 June
2015) Television New Zea land .
4 Casey Chan “Per vert Alert: is Ca mera Can See roug h Clothes” 21 April 2011, Gizmodo
5 Hosking v Runting [2005] 1 NZLR 1 (CA).
6 Hosking concerns photogr aphs of a celebrity c ouple’s children in a busy Ne wmarket st reet
that are ta ken without their k nowledge, and inte nded to be published in a ma gazine – see
[9]–[11]. e Court of Appeal determ ines, at [246], that there i s a free-standin g tort to protect
the publicity of private f acts, only that in this c ase the facts were not sucient to s atisfy the
tort – see [260]–[261].
7 Nicole Moreham “Privacy in the C ommon Law” (2005) 121 LQR 628 at 639-641.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT