Reference:  NZHC 2155
Court: New Zealand High Court
Judge: Whata J
Date of judgment: 24 Aug 2012
Summary: New Zealand - privacy - seclusion - intimate personal space and activity - intrusion - C in shower - D installed video device - recordings made - C discovered - claim for damages - whether NZ law recognises intrusion tort - review of US and English law - liability established - damages to be assessed
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Instructing Solicitors: Lane Neave for P; Malley & Co for D
C was a woman of 25. D was a builder, and co-owner of a house with C’s boyfriend Z. C regularly stayed at the house for some 2 years moving in with Z. On a single occasion during this period D made video recordings of C in the shower, using the roof space above the shower. The recordings lasted between 3-4 minutes in all. D downloaded the recordings to an external hard drive. There was no evidence that he published or showed them to anyone else.
Z later discovered what D had done, and handed the drive to the police. D was prosecuted and pleaded guilty to making an intimate visual recording. He was ordered to pay $1,000 in reparation with no other penalty.
C now sued for damages for invasion of privacy. The facts were not in dispute. The issue for resolution was whether the facts gave rise to tortious liability under New Zealand law.
On behalf of D it was argued, among other things, that (a) the established Hosking v Runting tort in NZ depended upon publicity being given to private facts, an element which was absent here; (b) there was no principled basis on which to extend existing law to encompass such a wrong; (c) there was no authority in NZ or other common law jurisdictions recognising a general tort of intrusion into privacy, and some authority against it; (d) there was a risk of creating an enlarged and uncontrolled liability; (e) it was not the court’s role to enlarge the law; if there was a need to extend it that should be left to Parliament.
Could and should the court recognise the existence in New Zealand law of a tort of intrusion into private space?
(1) The tortious liability in question was recognised in New Zealand law and the facts gave rise to a liability in damages.
(2) The elements of the tort are
(a) an intentional and unauthorised intrusion;
(b) into seclusion (namely intimate personal activity, space or affairs;
(c) involving infringement of a reasonable expectation of privacy;
(d) that is highly offensive to a reasonable person.
(3) ‘Intentional’ connotes an affirmative acrt, not an unwitting or simply careless one. ‘Unauthorised’ excludes consensual and/or lawfully authorised intrusions. Not every intrusion into a private matter is actionable, only those which most directly impinge on personal autonomy. A right of action only arises where the intrusion is by its nature or extent objectively determined to be offensive by causing real hurt or harm. A legitimate public concern in the information may provide a defence.
The judge found it necessary to describe the American tort of intrusion into seclusion; to identify the extent to which freedom from intrusion was recognised as a legal value in NZ; and to review the law of NZ and other jurisdictions to identify the principled arguments for and against the recognition of such a tort. The judgment is therefore a valuable resource . The Judge held (at ) that “a one-step reasonable expectation of privacy test comparable to the art 8 test applied in the United Kingdom is not sufficiently prescriptive”. He considered that the potential for conflict with other rights and freedoms “demands a clear judicial boundary for intervention”. The judgment may nonetheless be drawn on in this jurisdiction in future.