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Can Len Brown sue for invasion of privacy?

By Steven | October 17, 2013

It’s always a bit dangerous to speculate on the legal significance of facts when a story is still emerging and not all those facts have come out. And the tort of invasion of privacy is still itself emerging from the misty depths of New Zealand’s common law, so its outline is not entirely clear either.

But I am inclined to think that Auckland mayor Len Brown has a strong case if he wants to sue Cameron Slater, Stephen Cook, and perhaps even Bevan Chuang, for invasion of his privacy in their reporting about his affair with Chuang.

I’m not saying that he should sue, or that he’s likely to. Just that the elements of a claim are probably made out.

Brown can make out a claim if he can demonstrate the existence of private facts in which he has a reasonable expectation of privacy, and a publication of those facts that is highly offensive to an objective reasonable person. There is a defence if the facts are matters of legitimate public concern.

I imagine some of you are poised over the keyboard, ready to disagree with me already. Hold your horses. The guts of my argument is a fairly narrow one: Brown probably could not succeed in a case alleging that revealing the fact of his affair was a breach of his privacy. So Whale Oil could have told that story. But I think Brown could succeed in arguing that the sordid and salacious detail in the original story on Whale Oil’s blog breached his privacy. In short, this is because it was unnecessary to provide that level of detail to serve the public interest.

I’m not going to list all the details I’m talking about. You can read them here if you must. But they go well beyond the basic facts of the affair and get into a host of sexual particulars.

Hosking v Runting (and a swag of other cases, mostly in the UK) make it clear that we generally have a reasonable expectation of privacy in relation to sexual matters, even if we are public figures. I don’t think it will be difficult to establish that it was highly offensive to publish them. The real issue here is whether there is a defence of legitimate public concern.

As Hosking v Runting makes clear, the more invasive the privacy intrusion, the greater the legitimate public concern will need to be to justify the publication.

There are those who say that what the mayor gets up to in his personal life, including any extra-marital affairs, is nobody’s business but his own. It isn’t a matter of legitimate public concern. Lots of people have affairs. It doesn’t reflect on their ability to fulfil their public responsibilities. On that view, there’s no public interest defence here. And I have to say, I find Whale Oil’s initial justification (Brown used Council resources! He used his family in his campaign, the hypocrite!) less than compelling.

Other facts may emerge about whether there was any real abuse of power here. But anyway, I’m in the camp that says when an elected official is prepared to betray and deceive his wife and family in a fundamental way, then that says something about his character that has relevance for the electorate. Or at least, reasonable members of the electorate are entitled to think so.

So I think there is a defence of legitimate public concern for a story that reveals the affair, and I’m guessing a court would say so too.

But this story went much further. And our privacy cases in the courts and the Broadcasting Standards Authority (which applies very similar principles) make it clear that it’s the invasive material that needs to be in the public interest. In other words, there needs to be a connection between the sordid detail and the public interest that’s being claimed. If you can serve the same public interest without publishing all the invasive material, then you shouldn’t include the detail. On the other hand, if the sordid detail is necessary to tell the story, then it’s covered by the defence.

So that’s my point. Most of the detail in the original story was simply unnecessary to serve the public interest. There was, I think, legitimate public concern in knowing that Brown was having an affair, and probably the central facts about it. But not the parade of grubby particulars.

There are some counter-arguments. The courts have been willing to provide some latitude to journalists for the way they tell their stories. They allow a degree of colour. They don’t want to be censoring journalists’ editorial decisions. But there are three problems here. First, this latitude assumes a responsible editorial process informed by a sense of ethics. I don’t think those things can be assumed here. That is, I doubt a court is going to be as willing to respect the editorial decisions of a blogger like Cameron Slater.

The second is that this story goes far beyond any latitude I’d expect a court to grant.

The third is that this is very invasive story. The public interest defence will accordingly need to be particularly compelling and watertight. It’s not.

Messrs Oil and Cook could also argue that they needed to include that level of detail to demonstrate the truth of the allegations. These showed that their source’s memory was detailed and likely to be accurate. This was necessary to guard against a potential defamation threat.

But this doesn’t really work either. By all means, they should gather as much detail as they can to ensure that the story stands up. But that doesn’t mean they need to print it all. What’s more, I can imagine an awful lot more detail (what was his favourite tie? what did he order when you ate at X restaurant? did he take a phone call when you were alone with him in the office) that would establish veracity without wallowing in salacious detail.

There’s another interesting issue. Chuang was telling her story. Why are these regarded as his private facts? This does provide a little more leeway to argue that there’s no liability here. But not much. Brown still has a strong case that there was an implicit agreement that the dtails of their affair were to remain secret. Incidentally, it’s an implicit agreement that Chuang could rely on if the shoe was on the other foot and Brown was exposing unflattering details of her sex life.

I’m not sure what Chuang was told when she signed that affidavit about how much of it would be published. But assuming she understood that it was all going to be used, then Brown probably also has a good case against her for invasion of privacy and for breach of confidence.

Like I say, this isn’t likely to happen. But what’s particularly interesting, I think, is that the mainstream media have drawn pretty much exactly the line I’m talking about here. They have reported the fact of the affair. They have reported its broad outlines. They have included particular details when those seem to have some public interest justification. But they’ve stopped there.

I wonder whether any of them would have published at all if Whale Oil hadn’t broken the story for them. I’m inclined to regard it as a good thing that our media are not so rapacious that I can genuinely wonder about that.

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