Reasonable Expectation and Public Interest: Would the New Zealand Tort of Invasion of Privacy 'Benefit from Re-Examination'?

• Date: 01 January 2024

151

REASONABLE EXPECTATION AND PUBLIC

INTEREST: WOULD THE NEW ZEALAND

TORT OF INVASION OF PRIVACY “BENEFIT

FROM RE-EXAMINATION”?



Abstract

e New Zealand tort of invasion of privac y as formulated b y Gault P and Blancha rd

J in Hosking v Runting, h as been subject to crit icism from the outset an d has proven to

be incredibly dicult to apply. In rece nt years, it has bec ome apparent that the tort may

no lo nger be t for purpose a nd the judiciary have recently expressed a willingn ess to

reconsider th e requirements of the tor t. is paper criti cally analyses the cause of action

and cons iders how it could be m ore appropriately framed to de al with the harm caused

by invasions of privacy in New Zealand’s modern social and legal landscape. Overall, in

light of the develop ments that have occurred sinc e Hosking and the increased legislative

focus on protectin g individual pr ivacy right s, this paper sup ports the adopt ion of an

approach that wou ld bring the tort closer in li ne with English law.

I. Introduction

The tort of inv asion of privac y in New Zealand protect s against the publ ication

of infor mation in w hich the pla inti ha s a reason able expectat ion of privac y. Over

the last t wo decades, t he courts h ave applied the t ort as formu lated by Gau lt P

and Blanch ard J in Hosking v Runting.1 However, it has be come apparent t hat the

judiciar y are open t o reconsideri ng the requ irements of t he tort. I n the recent

decision, Hyndman v Walker, the Court of Appea l expresse d the view th at the tor t

“may well bene t from re-exami nation”.2 Followi ng thi s, a dierent bench of the

Court of Appe al also i ndicate d a will ingnes s to reconsider t he tort in P eters v

Attorney-General.3

1 Hosking v Runti ng [2005] 1 NZLR 1 (CA ).

2 Hyndman v Walker [2021] NZC A 25, [2021] 2 NZL R 685 at [3].

3 Peters v Attorney-General [2021] NZCA 355, [2021] 3 N ZLR 191.

* Submitted in pa rtial ful lment of the requirem ents for the degree of Bachelor of L aws wi th

Honours at the Un iversity of Cante rbury. The author would li ke to sincerely tha nk Professor

Ursula Che er for her guidanc e and support .

152 [Vol 31, 2024]

It seems that t he New Zeala nd tort of invasion of pr ivacy is ripe for chan ge. This

paper wil l critically a nalyse the cur rent requirements of the t ort and consider how

the cause of act ion should be formulated. Pa rt II will dis cuss the Court of Appea l’s

decision in Hoski ng, before each of the key element s of the tort ar e considered in Par t

III. The focus w ill then move to the desi rability of Gaul t P and Blanchard J’s chosen

formulation i n Part IV, where doubts w ill be raise d about the level of guid ance taken

from the En glish law and Unit ed States juri sprudence. Part V w ill then consider the

cultu ral and leg al developments t hat have occu rred sinc e Hosking. In this par t, it

will be s hown that contrar y to the suggestion s made by several commentat ors and

the judicia ry, the omission of an expre ss right to privacy i n the New Zealand Bil l of

Rights A ct 1990 (NZBOR A) should not lim it the amount of gu idance that ca n be taken

from En glish law. The reasons for abandoning the high oensiveness req uirement

of the Hosking tort wil l then be consid ered in Par t VI, an d the desira bilit y of the

defence of legiti mate public conc ern wil l be considered i n Part V II. Fin ally, it wi ll

be concluded that t he current for mulation doe s not provide a suit able fra mework

to deter mine whether a pl ainti has experienced an actionable invas ion of privacy.

Ultimat ely, this paper su ggests that an approac h that al igns more clo sely with t he

Englis h cause of action would b e better suit ed to protect i ndividual pr ivacy interes ts

in New Zeal and’s modern social and le gal landscape .

II. Hosking v Runting

The common law tort of i nvasion of privacy was rs t recognised in New Zea land

by the Court of A ppeal in Ho sking. Althou gh early c ases recog nised t he need to

protect priv acy intere sts, the la w was slow to develop, pri mari ly due to the b elief

that ex isting causes of action , such as the i ntentional i niction of emotiona l

distre ss, trespa ss, nuisa nce and defa mation, cou ld provide adequat e protect ion

where there had be en an invasion of privac y.4 Development was also complic ated by

the dicu lty defining t he parameters of the tort be cause of its potential to li mit the

right to f reedom of expression.5 Unfortu nately, this paper wi ll show that this fac tor

has conti nued to hinder the proper development of t he tort to thi s day.

4 See Tucker v Ne ws Medi a Owne rship Ltd HC Well ingt on CP477/86, 22 O ctober 198 6 where an

injunct ion was granted on the basis of the pla inti’s right t o privacy as Jeffer ies J con sidered

this to be a natur al prog ression of the to rt of t he inten tional i niction of emotio nal dis tress.

This was uph eld by the Court of Appe al in Tucker v News Media Ownersh ip Ltd CA CA1 72/86, 23

October 19 86. Althou gh the inju nction was lat er overtur ned by McGecha n J, he too expre ssed an

interes t in the development o f a cause of actio n (Tucker v News Media Ownership Ltd [1986] 2 NZLR

716 (HC)); see a lso Bradley v Wingnu t Films Ltd [1993] 1 NZLR 415 (HC) where six di erent causes

of action (inc luding inva sion of privacy) were a rgued.

5 See Bradley v Wing nut Films Ltd, above n 4 , at 423.

153

Reasonable E xpectation and Pub lic Interest: Would the N ew Zealand

Tort of Invasion of Priva cy “Benet from Re- Examination”?

In Hosking, the Cour t of Appeal re jected an a ttempt by former t elevision

presenter and “publ ic gure”, Mike Hoskin g, and his wife to prevent the publ ication

of photograph s of their 18-mont h-old twi n daughte rs. On beha lf of the chi ldren,

it was pleaded t hat the photog raphs amou nted to a bre ach of the tw ins’ privac y.

The defendant, Si mon Runting, capt ured the images whi le the children were bei ng

pushed in a st roller on a public street . They were intended to supplement a n article

that was t o be published i n a magazine. Alt hough the claim fai led on the facts, the

majorit y went beyond the requirement s of the case and r uled in favour of a separ ate

tort of inva sion of privacy.

The majorit y comprised of a joint judgment del ivered by Gault P and Blanc hard

J which set the t one for subsequent deci sions. The sepa rate judg ment delivered

by Tipping J wa s in general a greement wi th Gault P a nd Blancha rd J, in so fa r as

conrm ing the existence of the tort. However, Tipping J ’s preferred formulation w as

far more sy mpathetic to pr ivacy value s. There were also t wo strong d issentin g voices,

Keith and A nderson JJ. In t heir respec tive judg ments, each expr essed profound

concerns th at the right to f reedom of expression, g uarant eed by the NZBOR A, would

be unjust iably limit ed through reco gnition of a separat e cause of action.

As wil l later be expl ained, P arlia ment’s decision not to i nclude an expres s

right to pr ivacy in t he NZBORA h ad a sign icant impact on the framing of the

tort.6 Never theless, re cent developments in New Z ealand a nd inter national l aw

highl ighted the need for pri vacy protection an d promoted the furt her advancement

of the tort . For example, the majori ty took into accou nt New Zealand’s international

obligation s to protect pr ivacy ri ghts, the i ntroduct ion of the Pri vacy Act 1993 a nd

the esta blishment of t he Broadcas ting St andar ds Authori ty’s privac y principles.

Ultimat ely, the majorit y held that the p otentia l for the cause of act ion to inf ringe

upon the rig ht to freedom of expression could not preclude the development of the

tort beca use no right c ontaine d in the NZBOR A is absolute – all r ights ar e subject

to l imits ju stiable i n a fre e and democ ratic societ y.7 In their view, the protect ion

of indiv idual privacy could, in so me circumst ances, be a j ustied li mitation on the

right to f reedom of expression.8

Gault P and Bla nchard J drew on emergi ng law in other j urisd ictions to de cide

how the tort sh ould be framed. Thei r Honours declined to appl y the approach taken

by t he Engli sh court s to extend t he breach of condence cause of action because

they considered t hat grea ter clar ity would be ach ieved by havi ng two sepa rate

causes of act ion.9 Althou gh the En glish approa ch was ult imately not adopt ed, on

6 See Part V.

7 Hosking v Runting, a bove n 1, at [113].

8 At [113].

9 At [45]–[53].