C v Holland [2012] NZHC 2155 (24 August 2012): a significant privacy decision

September 18, 2012 |

The High Court of New Zealand in C v Holland has considerably advanced the tort of privacy in New Zealand jurisprudence.

FACTS

The facts are uncontroverted and set out in [2].  The salient facts are:

  • in June 2008 the defendant and the plaintiff’s boyfriend purchased a 5 bedroom house where they both resided;
  • for  2 years, the plaintiff stayed at the property approximately 4 nights per week before moving in with Mr Z in July 2010;
  • on a single occasion, in the period between 27 December 2010 and 9 January 2011, the defendant used a handheld digital camera to record 2 video clips of the plaintiff in the bathroom.  Each of the videos show the plaintiff both partially dressed and completely naked with clear view of her front (pubic area and breasts) and back. ;
  • the defendant downloaded the 2 video clips onto his external hard drive;
  • there was no evidence that the defendant published or showed the video clips to any person or entity; and
  • the plaintiff did not consent to the defendant watching her in the shower or taking the video clips.

The video clips were discovered by the plaintiff’s boyfriend and the plaintiff made a complaint to the police.  The defendant was charged under the Crimes Act (in making an intimate visual recording),  was convicted and ordered to pay $1,000 in emotional harm reparation.

The plaintiff commenced proceedings against the Defendant.

DECISION

The Court identified the key issue as being whether “.. a tort of intrusion upon seclusion should form part of the law of New Zealand”[5]. His Honour found (stating “I am in no doubt that”) Mr Holland intruded into C’s solitude and seclusion when he recorded video clips of C in the bathroom partially undressed or naked, that he infringed a reasonable expectation of privacy when videoing C in the bathroom partially undressed or naked [6] and that Mr Holland’s conduct was highly offensive to a reasonable person [7]. The court then undertook a detailed analysis.

Tort of intrusion upon seclusion

His Honour set out Prosser’s four privacy torts [12] which are:

(a) Intrusion upon seclusion or solitude, or into private affairs;

(b) Public disclosure of embarrassing private facts;

(c) Publicity which places the plaintiff in a false light in the public eye;

(d) Appropriation of the plaintiff’s name or likeness.

which were adopted into the Restatement (Second) of Torts [13].

The tort of intrusion upon seclusion is described in Jones v Tsige (and upon which I have a post here) to include:

1. An intentional and unauthorised intrusion;

2. That the intrusion was highly offensive to the reasonable person;

3. The matter intruded upon was private; and

4. The intrusion caused anguish and suffering.

 His Honour further stated:

  • there must be an affirmative act[16];
  • what constitutes highly offensive is dependent on the factors of “the degree of intrusion, context, conduct and circumstances of the intrusion, the motive and objectives of the intruder and the expectations of those whose privacy is invaded’[16]
  • a reasonable expectation of privacy is determined by a two step test being “..a subjective expectation of solitude or seclusion, and for this expectation to be objectively reasonable”[17];
  • the issue of anguish and suffering may be more relevant in an assessment of damages [18].

The tort in New Zealand

The court stated, at [32]:

It is therefore evident that New Zealand’s legal framework has embraced freedom from unauthorised and unreasonable physical intrusion or prying into private or personal places such as the home, and freedom from unauthorised recordings of personal, particularly intimate affairs whether published or not. But it has to be said that the extent to which privacy values are vindicated still depends on the legislative framework within which the impact on those values is being assessed. Legislation affording protection of privacy values is invariably moderated by public interest considerations.

His Honour undertook a thorough review of the authorities in New Zealand [21] – [47], the United Kingdom [49] – [55],  Australia [56] – [61]  and Canada [62] – [64].

His Honour set out the objections to a privacy tort at [65] as:

(a) Privacy per se is not justiciable.

(b) It is for Parliament, not the Judiciary, to resolve the weight to be accorded to privacy as a value within a complex matrix of competing values, interests and rights.

(c) A privacy tort is not necessary.

In his subsequent analysis he rejected each objection and, at [86], stated:

I have reached the view that it is functionally appropriate for the common law to establish a tort equivalent to the North American tort of intrusion upon seclusion. The reasons expressed by the Commission provide a cogent starting point. Privacy concerns are undoubtedly increasing with technological advances, including prying technology through, for example, the home computer. The affirmation of a tort is commensurate with the value already placed on privacy and in particular the protection of personal autonomy. As I have said, the similarity to the Hosking tort is sufficiently proximate to enable an intrusion tort to be seen as a logical extension or adjunct to it. This Court can apply, develop and modify the tort to meet the exigencies of the time..

He identified the elements of the tort at [94] – [96] as:

 [94]…the content of the tort must be consistent with domestic privacy law and principles. On that basis, in order to establish a claim based on the tort of intrusion upon seclusion a plaintiff must show:

(a) An intentional and unauthorised intrusion;

(b) Into seclusion (namely intimate personal activity, space or affairs);

(c) Involving infringement of a reasonable expectation of privacy;

(d) That is highly offensive to a reasonable person.

[95] Intentional connotes an affirmative act, not an unwitting or simply careless intrusion. “Unauthorised” excludes consensual and/or lawfully authorised intrusions. Further, not every intrusion into a private matter is actionable. The reference to intimate personal activity acknowledges the need to establish intrusion into matters that most directly impinge on personal autonomy.125

[96] The last two elements replicate the Hosking requirements and thus remain consonant with existing privacy law in this country. The boundaries of the privacy tort articulated in Hosking apply where relevant. Only private matters are protected. A right of action only arises in respect of an intrusion that is objectively determined due to its extent and nature, to be offensive by causing real hurt or harm. A legitimate public concern in the information may provide a defence to the privacy claim.

ISSUE

C v Holland is a significant development of the tort of privacy in New Zealand.  The High Court has adopted the tort of seclusion as the Ontario Court of Appeal did in January.  It is a very thoroughly reasoned decision, sensible given its possible eventual consideration by the appellate courts in New Zealand.  It is relevant to compare and contrast the New Zealand situation with Australia.  The Australian common law protection of privacy is at a very early stage in development and is an expansion of breach of confidence with its underpinning being the House of Lords authorities in Campbell v MGN Ltd and Douglas v Hello.  The authorities in the UK have significantly advanced beyond those decisions though they remain influential.  How privacy protections in Australia will develop is an interesting question.  The composition of the High Court that considered ABC v Lenah Game Meats and which left the door open to a privacy tort or a more developed claim in equity has almost completely changed. Under the rubric of breach of confidence it is reasonable to expect the fact situation in this case to be actionable in Australia. Whether that is the best way of affording protection, rather than a stand alone tort of privacy is another matter.  The legislature has not provided any indication of whether it will enact a statutory right of privacy in the form recommended by the Australian Law Reform Commission or in any other form.  The Privacy Act provides no comfort for an aggrieved person in this situation.

C v Holland received some coverage in the New Zealand Herald with Victim of peeping tom could be awarded damages.

 

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