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 PL ACE:
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 dicult 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 condence 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 condence 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 rening inuence 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 inicted 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 persona l 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 .
298 Canterbury 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 individua ls
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 pri nciples
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 crysta llised are far from mature. e Supreme Court has yet to issue a
decisive ruling on the privacy torts, a nd its obiter endorsement of Hosking
in Rogers v T VNZ could at best be described a s 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 seek s 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 specic
causes of action. Secondly, privacy actions in other jurisdictions will be
canvassed and compared. Fina lly, the paper will examine the way in which
the New Zealand courts have approached claims for breaches of privacy and
suggest areas of renement and reform.
2 Law Commiss ion Privacy: Concepts and Issues ( NZLC SP19, 2008) at [31].
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 Pr ivacy: Penalti es and Remedie s: Review of the Law of Pr ivacy:
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.
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