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Should we have a tort of intrusion?

By Steven | February 28, 2012

How far does our privacy tort stretch? Does it – should it – include offensive intrusions into someone’s affairs?

It is well established now that you can sue for invasion of privacy if someone offensively publishes sensitive private facts about you and there’s no redeeming public interest. A newspaper reveals you had an abortion as a teenager. A blogger publishes pictures of you naked. Someone tweets that you have an STD. The tort of invasion of privacy, at least in theory, could provide you with an injunction or damages for these revelations. But what if there’s no publication? What if someone reads your diary, eavesdrops on your intimate conversation, improperly accesses your health or bank records, films you with a hidden camera, or sneaks a peek at your video rental history? Depending on the circumstances, you might be able to avail yourself of one of a range of legal remedies such as harassment, breach of confidence, nuisance, trespass, or the offences of intimat

e covert filming or illegal interception. The Privacy Act may provide protection: you can complain, for instance, if material about you has been gathered in a way that is unfair, unlawful or unreasonably intrusive, and you can show that you’ve suffered harm as a result.

But these avenues all have limitations, and won’t necessarily provide for an injunction or damages. The Privacy Act does not apply to newsgathering journalists.

Might the tort of invasion of privacy be stretched to include this sort of intrusion, even without publication – in fact, even if the intrusive behaviour doesn’t turn up any truly private facts? Might the tort recognise that the harm here is the offensive prying into a person’s interests in seclusion?

Yes it might. New Zealand’s leading privacy case, Hosking v Runting [2005] 1 NZLR 1, deliberately leaves this question open. “We need not decide at this time whether a tortious remedy should be available in New Zealand for unreasonable intrusion into a person’s solitude or seclusion,” say Gault P and Blanchard J. “The cause of action will evolve through future decisions as Courts assess the nature and impact of particular circumstances.”

Last month, the Court of Appeal for Ontario took this step. In Jones v Tsige (2012 ONCA 32), the judges developed the law to award $10,000 in damages against a bank employee who accessed a colleague’s bank records 174 times over four years. “Recognition of [a right to sue for intrusion upon seclusion] would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society,” wrote Sharpe JA for the court, citing supportive case law from Canada and elsewhere, the growing problems caused by intrusive technology, and increasing academic support for the change. The court suggested that damages should be modest and free expression rights borne in mind where relevant.

Now, if these facts were to arise in New Zealand, I’d expect the Privacy Commissioner’s office to be the first stop. It seems that the equivalent Canadian privacy legislation has more limited reach. But I also expect that our courts will be likely to follow the Court of Appeal for Ontario in expanding our tort. I say this for four main reasons.

First, this development is in line with the underlying reasons for protecting privacy: allowing us space to develop intimacy, trust, and creativeness away from the gaze of others; acknowledging our dignity; giving us control over what we allow others to see of us; and giving us room to relax, experiment and let off steam.

Second, American law already contains this strand of privacy violation. It has been picked up by our Broadcasting Standards Authority, which provides a remedy against offensive intrusions – by hidden camera, for example  –  where there’s no sufficient public interest to justify the invasiveness. The BSA has shown this remedy to be workable and flexible. (Admittedly the BSA complaints only arise in the context of complaints against material that has been published. But the BSA is not asking whether the broadcast itself was intrusive or offensive, but whether the prying that led to the broadcast was intrusive). The intrusion remedy contains many familiar elements: reasonable expectations of privacy as a touchstone, highly offensive intrusions, defences of consent and public interest. The High Court has approved this development. Cases have shown the need for it: see for example, O’Connell v TVWorks 2007-067, where Target broadcast hidden camera footage of caregivers, even though most of those caught on film were doing little that was really wrong. It doesn’t make much sense for there to be an intrusion remedy for complaints against broadcasters, but not against anyone else.

Third, this new strand of privacy violation imposes less on freedom of expression, since it does not revolve around publication. It may constrain the gathering of information, however, so the resulting restriction on free speech arguably needs to be demonstrably justified under the New Zealand Bill of Rights Act. Properly applied, I think it can be justified. The threshold of offensiveness is a high one. The public interest defence protects significant speech. The requirement of proportionality should ensure that the tort is kept in its place.

Fourth, the Ontario Court of Appeal is surely right that galloping technology is vastly expanding the opportunities for intrusions on our private affairs. The tools for invasive covert recording are often no further away than our pocket or purse, and there’s a growing willingness to use them. I’ll leave the last words to the authors of the most famous legal article in history: Samuel Warren and Louis Brandeis, arguing that the common law should recognise a tort of invasion of privacy – back in 1890.

The intensity and complexity of life, attendant upon advancing civilisation, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress far greater than could be inflicted by mere bodily injury.

(“The Right to Privacy”, 4 (5) Harvard Law Review, 193).This column was first published in NZ Lawyer magazine.

Topics: Privacy tort | 7 Comments »

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