The recent High Court decision in C v Holland [2012] NZHC 2155 (24 August 2012) has created a new law in New Zealand protecting individuals against an invasion of solitude or seclusion.

In 2005, the Court of Appeal affirmed that there is a breach of privacy where the publication of private facts would be considered highly offensive (Hosking v Runting [2005] 1 NZLR 1 (CA)).  The decision in C v Holland has, for some circumstances, done away with the need for publication to have occurred. 

The facts

C was a young woman who often stayed over at a house co-owned by her boyfriend and Mr Holland.  Mr Holland covertly installed a camera in the roof space above the bathroom and toilet and secretly made video recordings of C undressing and showering.  Mr Holland downloaded the recordings onto a hard drive but did not publish them.  C and her boyfriend subsequently discovered the recordings.  Unsurprisingly, C became extremely distressed and commenced an invasion of privacy action against Mr Holland.

Justification

Justice Whata provided very thorough and logical reasoning for his decision to create a new privacy action, stating that:

  • The value of privacy cannot be doubted – it is expressed in a number of international conventions on human rights and domestic laws already recognises specific privacy rights, such as the right to be free from unreasonable search and seizure;
  • Aspects of privacy have already been transformed into rights. It is therefore too late to say that judges in New Zealand cannot adjudicate on the boundaries of privacy rights;
  • Parliament has not indicated that it a “no-go” area for the Courts;
  • Privacy concerns change with technological advancements and the Courts should be able to respond;
  • Existing protections are not adequate – the Hosking tort is not applicable because there has been no publication and surveillance or intrusion per se is not actionable.

The new tort of intrusion upon seclusion

To establish a claim under the tort of intrusion upon seclusion, a plaintiff must show:

  1. an intentional or unauthorised intrusion;
  2. into seclusion (namely intimate personal activity, space or affairs);
  3. involving infringement of a reasonable expectation of privacy;
  4. that is highly offensive to a reasonable person.

Justice Whata explanined that “intentional” meant “an affirmative act, not an unwitting or simply careless intrusion” (accidentally blundering into an occupied bathroom would not qualify) and that “unauthorised” did not include consensual or lawfully authorised intrusions.  The last two elements of the test are directly from the Hosking test.

Implications

This decision has obvious concerns for police and media.  In some circumstances, police do not need a warrant to conduct surveillance.  It may be that a number of standard surveillance activities will fall foul of the new tort.  Media will have to consider how it gathers information since the obtaining of the information could breach privacy rights even when it is not published.  However, media should be familiar with this type of test because the Broadcasting Standards Authority already applies a similar principle against interference with an individual’s seclusion or solitude. 

It will be interesting to see how the Court of Appeal or the Supreme Court will treat this decision.  However, it may be some time before the opportunity arises as no appeal of the High Court decision is expected and Justice Whata’s decision stands until a similar case is heard.