By a majority of three to two, the New Zealand Court of Appeal has approved the development of a law of privacy in a jurisdiction which is closer than any other to that of the UK. Since the judgment was only handed down on 25 March, it is too early to say whether the approach adopted by the Court of Appeal in New Zealand will be followed in this country. However, if an appeal is made it will be to the Privy Council, who are members of the House of Lords.
On the facts, the New Zealand Court of Appeal had no difficulty in finding that there was no breach of privacy. The claimant was a New Zealand television personality whose two baby children were photographed in the street. All five judges rejected the claimant’s appeal, but three went on to indicate the direction which they considered that the New Zealand law should take.
Two of the judges observed that a “privacy” jurisdiction had been developed via the well established action of breach of confidence. They observed that there are now two distinct versions of this tort. One is the traditional situation in which information has been disclosed in circumstances giving rise to a duty of confidence. “The second gives a right of action in respect of the publication of personal information of which the subject has a reasonable expectation of privacy irrespective of any burden of confidence, but only where that publication is or is likely to be highly offensive to a reasonable person.”
They went on to observe that the two fundamental requirements for a successful privacy claim in New Zealand are:
- “The existence of facts in respect of which there is a reasonable expectation of privacy; and
- Publicity given to those private facts that would be considered highly offensive to an objective
reasonable person.”
The third judge who found in favour of the law of privacy summarised it as follows:
“It is actionable as a tort to publish information or material in respect of which the plaintiff has a reasonable expectation of privacy, unless that information or material constitutes a matter of legitimate public concern justifying publication in the public interest. Whether the plaintiff has a reasonable expectation of privacy depends largely on whether the publication of the information or material about the plaintiff’s private life within a particular circumstance would cause substantial offence to a reasonable person. Whether there is sufficient public concern about the information or material to justify the publication will depend on whether in the circumstances those to whom the publication is made can reasonably be said to have a right to be informed about it.”
The last sentence is very redolent of the Reynolds defence already familiar to the UK jurisdiction. The extension of the Reynolds principles bringing in a public interest element is logical, although unlike one’s reputation, privacy once lost cannot be restored.
We await the outcome of the appeal to the House of Lords in Naomi Campbell’s action against The Mirror. In a sister jurisdiction at least, the validity of a privacy law along with appropriate safeguards to protect the right of freedom of speech have been recognised and formulations attempted.