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Review of Review of the Law of Privacy

By Steven | May 28, 2008

Earlier this year, the Law Commission released its Review of the Law of Privacy. It’s well worth a read.

It demonstrates what a nebulous and problematic concept privacy is. The review is part of a four-stage inquiry into the whole gamut of privacy laws, including the Privacy Act, public registers, the tort, and other privacy-related laws. This paper really just sets the scene, summarising current laws and exploring issues and challenges, including its application to the media, the health system, the workplace, and surveillance.

There’s lots of food for thought here. For example, the paper busts the myth that we live in an age when privacy is under greater threat than ever before. In fact, the notion of privacy barely existed a few generations ago. Until pretty recently, we spent most of our lives in extended families in small towns, eating, sleeping, working, traveling and even poohing directly under the gaze of others.

That’s not to say that galloping technology isn’t creating privacy problems hitherto unseen. The paper canvasses some of the threats, which seem to have come straight from the pages of a science fiction novel:

Next generation facial recognition softeware may also allow cameras to gauge a person’s thoughts by mapping facial geometry using algorithms.

One hybrid project aims to produce camera-carrying insects whose nerves have grown into their internal silicon chip and whose flight muscles can be remotely controlled.

A market research company has patented a system which identifies shoppers and tracks their purchase patterns using facial recognition.

The paper also tracks the vast range of laws touching on privacy, the growing international efforts to tackle privacy issues, the extraordinary diversity of public opinion about them (including different attitudes emanating from different cultures and age groups), and the scary amount of false information out there about us. 

Refreshingly, it’s grounded in a discussion of the principles underlying privacy and other related principles (such as freedom of expression). Too often NZ tends to muddle through with jury-rigged solutions to particular problems so that our law develops without any coherency. (By contrast, for example, German law is rooted in the fundamental constitutional norm of human dignity). The Commission finds that privacy is rooted in values of respect and autonomy, but that it needs to be considered in particular contexts. You can’t make general rules about privacy.

The Commission also notes that:

—  most authority is against corporations having privacy rights.

— our law is inconsistent on the question of dead people’s privacy rights.

— the right to receive information (often an aspect of freedom of expression) has been interpreted to relate only to information that others want to give you and not, for example, to include rights of access to government information.

— privacy language is increasingly finding its way into other areas of the law, eg name suppression

— the tort of invasion of privacy still has uncertain boundaries, but by its nature is unlikely to lead to many court cases (plaintiffs concerned about keeping their images clean hardly like to launder their washing in the court).

I think this is a terrific report. But there was one passage that struck me as so gob-smackingly wrong that it made me gasp out loud. It’s in the section dealing with surveillance. It imagines a scenario in which Ms X, a well-known actress, is bathing topless beside her swimming pool in a garden surrounded by a high fence. A photographer climbs a tree some distance away and takes some snaps using a tele-photo lens. These are published. Might she succeed in a lawsuit for invasion of privacy?

Hmmm, says the Law Commission. Maybe. But maybe not:

What Ms X does in her leisure time may be the subject of legitimate public interest given her prominence. She is clearly a person well known to the public.

A public interest defence to the publication of private topless photos? What were they thinking? Can anyone conceive of a situation in which these might be in the public interest?

Topics: General, Privacy Act, Privacy tort | 14 Comments »

14 Responses to “Review of Review of the Law of Privacy”

  1. Steve Withers Says:
    May 28th, 2008 at 2:19 pm

    Regarding the actress example, it’s one we know well from the so-called “womens mags” which will likely have several examples of such photos in any given issue.

    I do not confuse public curiosity with public interest. “Interest” should be according to these definitions:

    4. concern; importance: a matter of primary interest.
    5. a business, cause, or the like in which a person has a share, concern, responsibility, etc.
    6. a share, right, or title in the ownership of property, in a commercial or financial undertaking, or the like: He bought half an interest in the store.
    7. a participation in or concern for a cause, advantage, responsibility, etc.

    ….and NOT these:

    1. the feeling of a person whose attention, concern, or curiosity is particularly engaged by something: She has a great interest in the poetry of Donne.
    2. something that concerns, involves, draws the attention of, or arouses the curiosity of a person: His interests are philosophy and chess.
    3. power of exciting such concern, involvement, etc.; quality of being interesting: political issues of great interest.

  2. Steven Says:
    May 28th, 2008 at 2:50 pm

    The best general attempt to grapple with public interest I’ve seen is from NZ’s Broadcasting Standards Authority in Balfour v TVNZ:

    [58] …Certainly, in the view of the Authority, an issue would have to be of concern to, or have the potential to affect, a significant section of the New Zealand population.

    [59] Examining the principles of similar broadcasting tribunals – the Australian Communications and Media Authority, and the United Kingdom’s Ofcom – reveals that matters considered to be in the public interest include:

    — criminal matters, including exposing or detecting crime
    — issues of public health or safety
    — matters of politics, government, or public administration
    — matters relating to the conduct of organisations which impact on the public
    — exposing misleading claims made by individuals or organisations
    — exposing seriously anti-social and harmful conduct.

    [60] The Authority considers that these guidelines provide a good framework from which to assess issues of public interest in the New Zealand context.

    [61] It observes, however, that while these categories provide general guidance as to the situations that might be in the public interest, they should not be seen as a comprehensive or exhaustive list. Each situation must be determined on its own particular facts; the essential element in every case is that the material being broadcast must be of importance and concern to the New Zealand public generally.

  3. rjw Says:
    May 29th, 2008 at 4:27 pm

    Ms X is also a spokesperson for the Skin Cancer Society and advocates the slip, slop slap message?

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