The Wrong Tort in the Right Place: Avenues for the Development of Civil Privacy Protections in New Zealand

• Author: Tim Bain
• Position: Winner of the 2015 Canterbury Law Review Student Prize
• Pages: 297-327

297

THE WRONG TORT IN THE RIGHT PLACE:

AVENUES FOR THE DEVELOPMENT OF CIVIL

PRIVACY PROTECTIONS IN NEW ZEAL AND

T B*

A

Privacy law has always developed in a piecemeal fashion as courts and

legislators struggle with the inherently dicult concepts that it invokes. In New

Zealand three causes of action exist to remedy breaches of an individual’s private

sphere: the tort of publication of private facts, the tort of intrusion into seclusion,

and the equitable breach of condence action. Building on rst principles and

drawing on experiences from the Commonwealth and the United States, this

paper argues that the publication tort rests on a misconceived understanding of

privacy and so risks limiting the development of civil privacy protections. It is

contended that it would be more coherent for the law to focus on the intrusion

tort and actions for breach of condence to re medy actionable breaches of privacy.

e intensity and complexity of life, attendant upon

advancing civilization, have rendered necessary some retreat

from the world, and man, under the rening inuence of

culture, has become more sensitive to publicity, so that

solitude and privacy have become more essential to the

individual; but modern enterprise and invention have,

through invasions upon his privacy subjected him to mental

pain and distress , far greater than could be inicted by mere

bodily injury.

– Samuel Warren and Louis Brandeis (1890).1

e levels of privacy we now enjoy have probably only

existed for a few generations at most. Many people in earlier

generations had little physical privacy, and there was no

general expectation of privacy in personal communications

until relatively recently. e development of modern

Western ideas of privacy is closely linked to the emergence

of the concept of the self-contained individual. Boundaries

1 S Warren and L Brandeis “ e right to privacy” (1890) 4 Harvard L aw Review 193 at 196.

* Winner of the 2 015 Canterbury Law Re view Student Prize. I would like to t hank Professor

Cheer for her helpful com ments and critiques of an ea rlier version of this paper. Any er rors or

omissions are my own .

298Canterbury La w Review [Vol 22, 2016]

of the public and private have also shifted over time. More

kinds of information, and more physical spaces, have come

to be regarded as private.

– New Zealand Law Commission (2008).2

As the world shrinks, the importance of privacy grows. Now more than

ever, individuals need to be able to carve out their own private sphere in

which they can develop and explore their identity without the pressure that

comes from public scrutiny. e question of how the law should protect that

private sphere has never been more relevant.

With statutory reform being slow and piecemeal, it has been left to the

courts of New Zealand to craft mechanisms through which individuals

can protect their own privacy. In Hosking v Runting, the Court of Appeal

recognised a tort for breach of privacy via the publication of private facts.3

Seven years later, the High Court in C v Holland applied the principles

articulated in Hosking to grant relief under a second new cause of action:

intrus ion upon seclusion .4 e decisions in Hosking and Holland have generally

been viewed as welcome developments in the law. However, the actions which

they crystallised are far from mature. e Supreme Court has yet to issue a

decisive ruling on the privacy torts, and its obiter endorsement of Hosking

in Rogers v TVNZ could at best be described as lukewarm.5 When the Law

Commission completed its recent review of privacy law, it recommended that

the courts be left to continue to develop common law privacy protections.6

Yet, in the same report, the Commission recommended the enactment of

a Surveillance Devices Bill containing statutory civil remedies that would

largely render the common law actions redundant.7 So far, Parliament has

declined to undertake such legislative action.

Against that backdrop of uncertainty,8 this paper seeks to address the

future of civil actions for breaches of privacy in New Zealand. Discussion

will take place i n three parts. First, the conceptual basis of privacy l aw will be

discussed in order to provide a framework for assessing the utility of specic

causes of action. Secondly, privacy actions in other jurisdictions will be

canvassed and compared. Finally, the paper will examine the way in which

the New Zealand courts have approached claims for breaches of privacy and

suggest areas of renement and reform.

2 Law Commiss ion Privacy: Concepts and Issues ( NZLC SP19, 2008) at [31].

3 Hosking v Runting[2005] 1 NZLR 1.

4 C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672.

5 Rogers v Television New Ze aland Ltd [2007] NZSC 91 [2008] 2 NZLR 277 at [25]-[26] per

Elias CJ, at [99] per McGrat h J, and at [144] per Anderson J.

6 Law Commission Invasion of Privacy: Penalties and Remedies: Review of the Law of Privacy:

Stage 3 (NZLR R113, 2010), Recommendations 28 a nd 29.

7 Recommendation 1.

8 See Samuel Bes wick “Privacy: right s, remedies, and reform” [2015] NZLJ 166.