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Okay, so does Mosley affect NZ law?

By Steven | July 28, 2008

Quite a bit, potentially.

Remember, there was no claim in defamation (Mosley now says he’ll bring a separate lawsuit for that). And Mosley had failed in his injunction bid because the cat was out of the bag – the pictures were in the public domain.

Remember, too, that the framework of the law in the UK is different to NZ’s. In particular, over there, the judges have to balance the privacy rights against free speech rights – both are contained in the European Convention on Human Rights. Our Bill of Rights makes no direct mention of privacy rights.

Still, there’s a lot of interest here to NZ’s developing law of privacy. Here are some initial thoughts.

A responsible journalism defence? 

Most interestingly, Justice Eady seems to import a “responsible journalism” standard into the defence of public interest. “Responsible journalism” is the quid-pro-quo in defamation cases for the expanded defence of qualified privilege. Now it may be making its way into privacy law. The idea is that, if the journalist has behaved responsibly in developing the story and assessing its public interest, then it may not be held against him or her if some of the facts turn out to be wrong.

So, for example, if the judge had found that the paper, through diligent inquiry, reasonably believed that the story was in the public interest, then the defence might succeed, even if, once all the facts are out, it turns out that the paper was mistaken about some facts and there wasn’t any real public interest in the story after all. (The judge found that the paper had been so reckless that this line of argument wasn’t available to it. But the seeds have been planted for future cases…)

That development might  be echoed here.

“Intense focus on the facts”

The methodology espoused by Eady J is ask, first, is there a reasonable expectation of privacy, and secondly, what does an “intense focus” on the particular circumstances tell us about whether there should be liability. This second stage strikes me as odd. It suggests that the answer is likely to emerge magically from the facts, rather sidestepping the vital role of the judge in assessing them.

It almost suggests that the question is one of fact, which makes it correspondingly more difficult to appeal.

It avoids the very difficult conceptual task of examining whether particular limitations on privacy and freedom of expression are justified in terms of the Convention.

It steers cases away from the helpfulness of guidance of such rules of thumb as “public figures must expect to have less privacy” in favour of a test that says (and I quote the judge) “in every case ‘it all depends'” (ie upon what is revealed by the intense focus on the individual circumstances)”.

I’m not sure this approach will or should be copied in NZ. It seems tied to the Convention “balancing” between rights outlined above. In NZ, I think the process needs to be one of justification of the restriction on freedom of expression. But perhaps what the judge has in mind is “an intense focus on the comparative importance of the specific rights”, as Potter J puts it in A Local Authority v PD [2005] EWHC 1832, which seems more translatable to the NZ scene. Which brings me to…

Proportionality is the touchstone

Was the intrusion, or the degree of intrusion, proportionate to the public interest served by it?


necessarily involves and evaluation of the use to which the relevant defendant has put, or plans to put, his or her right to freedom of expression.

For example, political speech should be accorded greater value than gossip. This seems bang on, and is consistent with developments here and in the UK (not to mention the US and the ECHR). But it’s a mindset that is foreign to some judges.

Is intrusion a new branch of privacy?

“…the very fact of clandestine recording may be regarded as an intrusion” in violation of privacy rights, says the judge.

That is, there may be an actionable violation of privacy, even if no private facts are published… if some intrusive method of gathering information is used, such as hidden cameras or long-distance lenses.

Seems right too.

Exemplary damages are not available because invasion of privacy isn’t a tort

Exemplary damages are punitive damages, awarded to mark outrageous breaches of rights when ordinary measures of damages aren’t sufficient to do so.

On current authority, these are only available for torts. In the UK, privacy isn’t a tort. It seems, though, that it is in NZ, which would suggest that exemplary damages are available.

Still, that will probably only happen in rare cases, and exemplary damages tend to be moderate.

What is public interest?

Here’s an interesting observation:

The question has to be asked whether it will always be an automatic defence to intrusive journalism that a crime was being committed on private property, however technical or trivial. Would it justify installing a camera in someone’s home, for example, in order to catch him or her smoking a spliff? Surely not.

First: is this the first judicial use of the word “spliff”? Well done, that man.

Secondly, the answer may be different if the case involves a politician campaigning for harsh penalties against pot-smokers.

Thirdly, otherwise, this seems good and right to me.

The judge makes other significant points about public interest. It’s for the court to decide. It doesn’t revolve around what the journalist knew at the time. Later investigation might reveal facts that bolster a finding of public interest – the fact that these were discovered later will not be “fatal to the defence”. (But see comments on “responsible journalism” above. If a journalist wants to advance that argument, it will obviously depend on what was known at the time.)

He also notes that revealing wrongdoing to the public will not always justify revealing every gory detail. This was clear in the Naomi Campbell case.

Finally, the judge also notes (in line with our BSA, actually) that it may be reasonable and responsible to install or use a hidden camera, based on a “reasonable apprehension that the public interest would be served”. (Incidentally, it seems that this conclusion should only be reached if there’s no other way to get the material. Again, this is in line with the BSA).

But there’s a separate question to be asked about whether the footage acquired as a result is worthy of publication.

How do you measure damages?

It seems that the factors include:

Topics: Broadcasting Standards Authority, NZ Bill of Rights Act, Privacy tort | No Comments »


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