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Lawsuit for intrusion allowed in NZ

By Steven | August 26, 2012

At a time when the British tabloids are wringing their hands over whether to publish naked photos of Prince Harry, the High Court in NZ has ruled that the mere taking of such photos, whether or not they are published, is an actionable breach of privacy.

The case involved a woman who was filmed naked in the bathroom by a man who co-owned her boyfriend’s house, who had installed a hidden camera in a roof cavity.

The boyfriend found the footage and the man pleaded guilty to making an intimate visual recording. (He was ordered to pay $1000 in reparation and given no further penalty, which seems on the face of it a bit light, though I haven’t seen the sentencing decision).

The woman decided to sue in tort. The court was immediately faced with the issue of whether the tort of invasion of privacy can extend to situations where there has been intrusive behaviour, but no publication of private facts. The leading case, Hosking v Runting, left this question open. The High Court has now answered it: yes.

In a thoughtful and thorough decision that echoes the reasoning process followed in Hosking, Whata J has recognised intrusion as a form of privacy violation, if the following elements can be proved:(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.

There is a defence of legitimate public concern.

In doing so, the judge has mirrored this strand of the tort as it exists in the US, also recently recognised in Canada, and for many years now applied by our Broadcasting Standards Authority. I advocated this development here.

The case is  C v Holland [2012] HC 2155 CIV 2011-409-002118 HC Christchurch, 24 August 2012

Topics: Privacy tort | 12 Comments »

12 Responses to “Lawsuit for intrusion allowed in NZ”

  1. BeShakey Says:
    August 27th, 2012 at 7:51 pm

    I haven’t paid much attention to the Prince Harry bit so maybe I missed something, but from what I’ve seen it isn’t clear the intrustion was unauthorised, its arguable if it was a personal space, if there was a reasonabel expectation of privacy (in that he seemed to be aware there were others there who took pictures, or that it would be highly offensive to a reasonable person.

  2. Steven Says:
    August 30th, 2012 at 12:02 pm

    Fair enough: it may be more arguable than I’m suggesting. But I think that behaviour will probably be found to be intrusive and unauthorised and offensive if it involves secretly taking photos in a private setting like this, even if the presence of the photo-taker was known and approved. But if the Prince knew photos were being taken, and hadn’t laid down any conditions, then I accept that the tort is probably not made out.

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