McBride, Tim; Tobin, Rosemary --- "Privacy in New Zealand case law" [1994] PrivLawPRpr 32; (1994) 1(3) Privacy Law & Policy Reporter 48

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Privacy in New Zealand case law

Tim McBride and Rosemary Tobin

Unlike the US Bill of Rights and the Canadian Charter of Rights and Freedoms 1982, the New Zealand Bill of Rights Act 1990 is not ''supreme law'. It operates as an ordinary statute. Despite its modest constitutional underpinnings, the Act has had a major impact, especially in the area of criminal procedure.

The Act does not contain a right to privacy as such. In the 1985 White Paper, A Bill of Rights for New Zealand, which proposed a constitutionally entrenched Bill of Rights, it was argued that it would be inappropriate ''to attempt to entrench a right that is not by any means fully recognised now, which is in the course of development, and whose boundaries would be uncertain and contentious' (para 10.145).

Important privacy interests, however, are recognised in the 1990 Act. Inparticular, s21 provides that everyone ''has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise'. The Court of Appeal has emphasised that the Act isto be given a purposive interpretation. In the context of s21, this has meantthat a key rationale for s21 is the protection of individual privacy.

In Jefferies (1993) 10 CRNZ 202, two judges of the seven-member Court ofAppeal who decided the case explored the rationale behind s21. After reviewingCanadian and American authorities, Richardson J was of the view that s21 emphasised four considerations:

''The first is that the right of the citizen reflects the amalgam of values: property, personal freedom, privacy, and dignity. A search of premises or the person is an invasion of property rights, a restraint on individual liberty, an intrusion on privacy, and an affront to dignity.

The second is that neither the Bill of rights nor the International Covenant gives a general guarantee of privacy. And New Zealand does not have a general privacy law. That is not surprising. The nature and significance of a privacy value depends on the circumstances in which it arises.

The third is that policy decisions necessarily represent a balance between competing values and interests. Unreasonableness is not a synonym for unfairness to the citizen. It is not fair play that is called in question ... The fourth is that reading s21 literally the entitlement it affirms is to be protected against unreasonable search or seizure. That is not the same as a ''reasonable' expectation of privacy. It would be the same if one could ignore the interests of society as a whole of the interest of anyone other than the person whose privacy is affected (217).

Similar sentiments were expressed by Thomas J (235). Adams on Criminal Law (Ch 10.8.02) interprets these dicta as supporting ''the conclusion that arationale, but not the only rationale, of s21 is privacy. The right in s21 is multi-faceted and different aspects will be emphasised depending upon the facts of particular intrusions'.

Common law action for invasion of privacy

The New Zealand decisions on privacy are generally decisions at an interlocutory level. Nonetheless the obiter comments all point to the fact that when an appropriate case does come before the courts a New Zealand court will find for a tort of invasion of privacy, and this even though the Bill of RightsAct 1990 (NZ) does not contain a provision such as art 8 of the European Convention of Human Rights. These decisions suggest that there is some protection against:

1. unwarranted publication of intimate details of the plaintiff's private life which are outside the realm of legitimate public concern; and
2. some invasions of personal privacy, at least by public disclosure of private facts.

The issue first came before the courts in Tucker v News Media Ownership Ltd [1986] NZHC 216; [1986] 2 NZLR 716. Tucker needed a heart transplant operation which had to take place in Australia. As a result a fundraising campaign was launched. Media organisations became aware that some years earlier Mr Tucker had been convicted of certain offences. He brought an action seeking an injunction to prevent the media from broadcasting further details of these. What is of interest in this case was that the facts complained of had been at one point in time public facts, namely convictions for certain criminal offences, including one for indecent assault. In accepting that the protection of personal privacy was entitled to weight the judge also noted that one who put himself in the public eye might lose some rights to privacy. Here, however, Mr Tucker had been propelled reluctantly into the public eye and the consequences to him of allowing the damaging articles to be published told in favour of the injunction. McGechan, J stated that he supported ''the introduction into New Zealand Common Law of a tort covering invasion of personal privacy at least by public disclosure of private facts' (733). However, a warning was issued by the judge. He considered that ''legislative action on some comprehensive basis' was required with urgency to determine the ''extent of the right to privacy and therelation of that right to freedom of speech' (736). In the absence of legislative action the courts were ''being forced into a position where they must soon create new law as they see appropriate. This process which will be painful and expensive to litigants involved, might not be thought the ideal approach. It will, however, be necessary if nothing is done' (736).

Similar expressions of approval for such a tort were expressed when the matter went before the Court of Appeal. In the event the injunction was lifted because its continuation was a futile exercise in light of the widespread publicity which the case had attracted. However, it seems clear that facts which are public facts can, over time, become private facts again and protected as private facts.

In Morgan v TVNZ (unreported, High Court, Christchurch, CP 67/90, 1 March 1990) Holland J recognised that there was a right to privacy in New Zealand for an individual although it was not legally defined and was subject to considerable limitation. In particular he thought it might have to give way to the public interest. ''I am in favour of some tort of protection of privacy and when the issue finally comes to be decided the Judge may well have to balance the conflicting right of the public to be informed with the right to privacy'.

Morgan involved an interlocutory application for an injunction against publication of a documentary entitled ''Hilary's In Hiding'. Hilary was a seven- year old girl at the centre of a bitterly contested international custody dispute which had seen the mother go to jail in the US for contempt of court. Holland J considered that the documentary would do substantial harm to the child, and was satisfied that there was ''no real public interest' in the documentary. He granted the injunction sought on the basis that ''the law of New Zealand recognised some right of privacy of an individual', although that right was not ''legally defined' and was ''obviously subject to considerable limitation'.

The matter came before the court again two weeks later in relation to a newspaper article which the judge also thought breached the child's right to privacy. This later decision does illustrate the cautious approach taken where the allegation is a breach of privacy. Because the particular issue of the newspaper had already been printed, and some copies were even in the hands of retailers for release to the public the following day, the judge declined to grant the injunction. That is any harm done to Hilary at the interlocutory stage gave way to the liberty of the press.

In Craig v AG [1986] NZHC 151; (1986) 2 CRNZ 551, Mr Craig was unhappy with the service he received at a restaurant and declined to pay the full amount of the bill when it was tendered. The police arrived. They were told of the dispute, knew that Craig had plenty of money with him, knew his name, his telephone number, and that he had left his post office box number with the proprietor of the restaurant. The police nonetheless arrested him for obtaining credit by fraud. Craig was pushed up against the side of the police van, his arms were thrown above him, his wallet taken from his hand and he was searched. The judge found that there was no reasonable and probable grounds that he had committed the offence; the arrest was therefore unlawful.

Here Tompkins J thought that to search someone in the street solely on the basis that they had been arrested was unwarranted, unlawful and an unjustified restraint on his freedom and an invasion his privacy. He considered that the indignity suffered by Craig was all the greater for being carried out on a public street, and in the presence of some of his acquaintances. Since then theNew Zealand Bill of Rights Act 1990 has been passed. s21 now gives statutory effect to the comments made by his Honour.

In T v A-G [1988] NZHC 656; (1988) 5 NZFLR 357 the plaintiff had been sent to jail following the death of her two-year old daughter. An inquiry into the circumstances leading to the death led to a report being completed. The Director-General of Social Welfare authorised the report's release. News media organisations proposed to publish stories based on the report.

The plaintiff's application for an injunction restraining publication was successful. Ellis J held that publication would not only breach statutory requirements but also the duty of confidentiality owed by the Director-General to the plaintiff.

Given that the plaintiff had been successful on these two grounds, Ellis J did not pursue her third claim that publication would intrude upon her right to privacy. However, he noted judicial enthusiasm for the new tort and expressedsupport for it. ''I too record my interest in such a development' (378-9).

It is unfortunate that Marris v TV3 Network Ltd (unreported, High Court, Wellington, 14 October 1991, CP 754/91) did not go to trial as there is no doubt that Dr Marris's privacy was blatantly invaded. Dr Marris had been the subject of a medical practitioner's disciplinary proceedings when TV3 decided to do a program about certain of his patients. It was the manner and circumstances in which Dr Marris was filmed that the plaintiffs took exception to.

Instead of visiting him at his surgery TV3 arrived at his house early one morning, and knocked loudly on the front door. Dr Marris, who had been upstairs shaving at the time, leaned out of the window, with shaving cream on his face, to see what was going on. He attempted to deal with a barrage of questions as best as he could. Then Mrs Marris opened the front door and was also subjected to questioning in an ''abrupt sarcastic' manner. It was a little while before she realised that they were being filmed. She told them to go. At no stage had the Marris's given permission for the recording or the filming. They sought an interim injunction to prevent screening.

Counsel for TV3 while not denying that here was an arguable issue as to tort liability arising in respect of an invasion of privacy, argued that it was limited to the type of situation found in Tucker, and that it was not seriously arguable that it could extend to the facts of this case. Neazor J agreed that the facts were far different here as all that the plaintiffs suffered was upset and anger; there was no danger to health. On the ''basis of developments to date' he was not prepared to find that the case was sufficiently arguable to warrant the issue of an interim injunction.

If the matter had gone to trial it may have had a different result. TV3 had admitted that it knew Marris would be reluctant to be interviewed and that the whole point of the exercise was to put him in a position where he could be filmed, and moreover filmed in giving the refusal expected. There was, it is argued, no public interest in seeing Dr Marris, unprepared and while shaving, attempting to deal with the interviewer's questions. This was seen to be unwarranted invasion which could be offensive to the ordinary person and was quite outside the realm of legitimate public concern.

In Bradley v Wingnut Films Ltd [1993] 1 NZLR 415, it was alleged that the ''comedy horror' film ''Brain Dead' had infringed the privacy of the plaintiffs by containing pictures of the plaintiff's family tombstone. The tombstone appeared on the film for no more than 14 seconds. It never appeared in its entirety, only the letters BRA ... were visible behind a person sitting on the wall at the side of the plot. After reviewing the New Zealand judicial authorities on privacy, Gallen J stated: ''the present situation in New Zealand ... is that there are three strong statements in the High Court in favour of the existence of such a tort in this country and an acceptance by the Court of Appeal that the concept is at least arguable. I too am prepared to accept that such a cause of action forms part of the law of this country but I also accept at this stage of its development its extent should be regarded with caution and I note too ... that there is a constant need to bear in mind that the rights and concerns of the individual must be balanced against the significance in a free country of freedom of expression' (423).

On the facts in Bradley, Gallen, J did not consider that this was an appropriate case in which to recognise a privacy action. To do so would ''extend the boundaries of an emerging tort far beyond what is safe and would impose restrictions on the freedom of expression which would alter the balance againstsuch freedom more than could be justified' (425). Any claim to invasion of privacy was however demolished by Gallen J: ''there could scarcely be anything less private that a tombstone in a public cemetery'

Tim McBride and Rosemary Tobin, Lecturer of Law, The University Of Auckland. In the June issue they will examine Privacy in New Zealand Broadcasting Law.