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Pike River privacy II

By Steven | December 2, 2010

I’ve since discussed Nicole Moreham’s post (below) with another privacy expert, who agrees with her wholeheartedly.

For myself, I’m not quite so sure. Certainly the grieving families were caught in a distraught and vulnerable moment. I’ll assume that there was no way for them to use to escape the assembled media. Coverage of children and those who were telling the media to piss off seems particularly offensive. And there’s really no redeeming public interest: the stock media argument that the public needs to see the families’ reaction to understand the enormity of the problem just doesn’t wash. This was grief porn: there was no legimate public interest in seeing it.

Still. The tort in New Zealand, as established in Hosking v Runting, revolves around the publication of sensitive private facts. By contrast, in England, the emphasis is on breaches of someone’s reasonable expectation of privacy. That formulation more readily lends itself to invasive intrusions on people’s privacy, even when they don’t reveal any particularly sensitive private information.

True, the definition of a private fact in Hosking is a fact in which there is a reasonable expectation of privacy. Am I splitting hairs? I don’t think so. In New Zealand, you still need to be revealing facts. It’s not about protecting our reasonable expectations of privacy in certain situations, but about protecting against the revelation of information about ourselves. Perhaps the appearance and behaviour of the grieving relatives might be a private fact. But that seems a stretch. We’re not really being told anything we didn’t know before.

In Hosking, the judges say that there will rarely be a reasonable expectation of privacy in relation to photographs taken in a public street. But they say that

in exceptional cases a person might be entitled to restrain additional publicity being given to the fact that they were present in the street in particular circumstances.

The examples they give are Campbell (where a famous model was photographed outside a Narcotics Anonymous meeting, revealing that she had lied about her drug problems) and Peck (where the media published CCTV footage of a man on a public street shortly after he had attempted suicide). It’s certainly arguable that the Pike River families are in a similar position: in a highly vulnerable state in public, and could reasonably expect not to receive publicity. But I wonder whether the analogy is quite apt. The Pike River families surely knew they were being photographed. They had taken no particular steps to shield themselves from public gaze. The footage didn’t reveal a secret (like drug addiction) or capture anything quite as extreme as the aftermath of a suicide attempt. Could it really be said that they had a reasonable expectation of privacy in the circumstances? Maybe. But it doesn’t seem like a slam dunk to me. 

Topics: Privacy tort | 1 Comment »

One Response to “Pike River privacy II”

  1. billbennettnz Says:
    December 6th, 2010 at 12:12 pm

    I’m not comfortable with ‘grief porn’ in the media.

    It’s a great term, conveying tons of meaning in just two words. But like pornography it is hard to define precisely; and that’s a problem when it comes to law.

    There’s a possible public interest reason for showing a model leaving a drug clinic after lying about her habit, but I can’t see any public interest justification for showing families at their moment of grief.

    Is it possible to work up a better definition of where the line between acceptable and unacceptable intrusion sits in these cases? Has any other nation managed this?


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