Hosking, Campbell and Beyond

The protection of privacy in the common law

Protection of privacy in New Zealand common law

Hosking v Runting [2005] I NZLR 1

1. Should New Zealand courts recognise a tort of invasion of privacy?

2. If so, were the requirements of the tort made out on the facts of the case?

Tort of highly offensive publication of private facts

Claimant has to establish (Gault P and Blanchard J):

“[t]he existence of facts in respect of which there is a reasonable expectation of privacy”; and

“[p]ublicity given to those facts that would be considered highly offensive to an objective reasonable person”.

New Zealand Bill of Rights Act 1990

Section 14 [Freedom of expression]:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

Were these requirements satisfied in Hosking?

Twins were in a public place at the time so disclosure reveals no ‘private information’

Parents had ‘courted publicity’

The English position: the breach of confidence action

Campbell v MGN Ltd [2004] 2 AC 457

‘Reasonable expectation of privacy’ Weighed against competing freedom of

expression interests

Article 8, European Convention on Human Rights: (1) Everyone has the right to respect for his private

and family life, his home and his correspondence…

England and New Zealand: similarities

Claimant must show:

a. private facts in relation to which there was a reasonable expectation of privacy (and, in

NZ, publication of those facts which is highly offensive); and

b. no overriding public interest or right to freedom of expression

Beyond Campbell and Hosking

Protection against intrusion Wainwright v Home Office [2004] 2 AC 406

Privacy in public places Peck v United Kingdom (2003) 36 EHRR 41

Privacy of ‘public’ information: criminal convictions Brown v Attorney-General 20 March 2006 (DC

WN CIV-2003-085-236)