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

• Author: Meg Davidson
• Position: Submitted in partial fulfilment of the requirements for the degree of Bachelor of Laws with Honours at the University of Canterbury
• Pages: 151-195

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 formulatedb 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 protecting individual privacy rights, this paper supports the adoption of an

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

I. Introduction

The tort of invasion 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 two decades, the courts have applied the tort as formulated by Gault P

and Blanchard J in Hosking v Runting.1 However, it has become apparent that the

judiciary are open to reconsidering the requirements of the tort. In the recent

decision, Hyndman v Walker, the Court of Appeal expressed the view that the tort

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

Court of Appeal also indicated a willingness to reconsider the 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 the 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 Hosking, 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

cultural and legal developments that have occurred since Hosking. In this part, 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 will then be considered in Part VI, and the desirability of the

defence of legitimate public concern will be considered in Part VII. Finally, it will

be concluded that the current formulation does not provide a suitable framework

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

Ultimately, this paper su ggests that an approach that aligns more closely 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 Appeal in Hosking. Although early cases recognised the need to

protect privacy interests, the law was slow to develop, primarily due to the belief

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

distress, trespass, nuisance and defamation, could provide adequate protection

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 SeeTucker v Ne ws Medi a Owne rship Ltd HC Wellington CP477/86, 22 October 1986 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 Court of Appeal rejected an attempt by former television

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

of photographs of their 18-month-old twin daughters. On behalf of the children,

it was pleaded that the photographs amounted to a breach of the twins’ privacy.

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 to 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 tone for subsequent decisions. The separate judgment delivered

by Tipping J was in general agreement with Gault P and Blanchard J, in so far 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 Anderson JJ. In their respective judgments, each expressed 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 will later be explained, Parliament’s decision not to include an express

right to privacy in the NZBORA had a sign icant impact on the framing of the

tort.6 Nevertheless, recent developments in New Zealand and international law

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

obligations to protect privacy rights, the introduction of the Privacy Act 1993 and

the establishment of the Broadcasting Standards Authority’s privacy principles.

Ultimately, the majority held that the potential for the cause of action to infringe

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

tort because no right contained in the NZBOR A is absolute – all rights are subject

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

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 emerging law in other jurisdictions to decide

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 that greater clarity would be achieved by having two separate

causes of action.9 Although the English approach was ultimately not adopted, on

6 See Part V.

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

8 At [113].

9 At [45]–[53].