Full case report
Andrews v Television New Zealand
Reference CIV 2004-404-3536
Court High Court of New Zealand
Judge Allan J
Date of Judgment 15 Dec 2006
Invasion of Privacy – New Zealand law – Television broadcast of a car accident – Whether reasonable expectation of privacy – Whether publicity highly offensive to an objective reasonable person – Failure to inform plaintiffs about broadcast
The plaintiffs, husband and wife, were involved in a car crash. Both had been drinking alcohol and neither remembered who was driving. The accident was witnessed by several people and emergency services attended the scene. The firefighters attended with a camera operator who filmed the rescue operation in its entirety. The film was shown on national television as part of the ‘Fire Fighters’ series. The plaintiffs faces were pixiliated only on occasions. Neither was informed about the programme before it was broadcast and both said that they were greatly distressed.
(1) Whether the plaintiffs had established an actionable interference with their right to privacy in light of the criteria discussed in Hosking v Runting;
(2) If so, whether the broadcast was nevertheless justified because it covered matters of legitimate public concern.
(1) The plaintiffs had a reasonable expectation of privacy. Although the incident occurred in public the conversation between the plaintiffs that took place in the car was private and they were entitled to reasonably expect that it would not be heard beyond those in earshot. However, the publication was not highly offensive and hence the second limb of the test in Hosking was not met. The plaintiffs were most upset by the failure to notify them about the broadcast rather than the contents of the conversation televised. A failure to consent is not an ingredient of the tort of breach of privacy;
(2) Had it been necessary the Judge would have upheld the defendant’s argument that there was a defence of legitimate public concern because the television series, although, providing a certain level of entertainment, had a serious underlying purpose and the invasion of privacy would have been at the lower end of the scale.
This is an example of a pure privacy case involving no breach on the part of a confidant. Whilst the Judge referred to Campbell v MGN and Peck v United Kingdom he recognised that care needed to be taken with these authorities in New Zealand because privacy is expressly protected under the ECHR alongside freedom of expression and that is not the case under the New Zealand Bill of Rights.
Daniel Overton & Goulding for the plaintiffs; Simpson Grierson for the defendant
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