Hosking v Runting & Others
Reference:  NZCA 34;  3 NZLR 385
Court: New Zealand Court of Appeal
Judge: Gault P, Keith, Blanchard, Tipping and Anderson JJ
Date of judgment: 25 Mar 2004
Summary: Human rights - Privacy - Freedom of expression - Publication of private information - Separate tort
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The claimants were a “celebrity” couple by reason of the first claimant’s broadcasting career. They had twin girls in 2001, and declined to give interviews about them or allow them to be photographed. They separated in 2002. The first defendant, a photographer, was commissioned by the second defendant, a publisher, to photograph the appellants’ 18-month old twins. This he did, in a street in Newmarket, while they were with their mother, but without her knowledge. The claimants brought proceedings to prevent publication of the photographs, on the basis that their publication would amount to a breach of the twins’ privacy. Randerson J, in the New Zealand High Court, recorded a concession by the claimants that an action for breach of confidence could not be sustained, as the twins were in a public place when the photographs were taken. Randerson J held that New Zealand courts should not recognise privacy as a distinct cause of action. The claimants appealed.
(1) Whether there was a freestanding tort of privacy in New Zealand
(2) Whether any other cause of action could prevent the publication of the photographs
By a majority of 3-2, the Court held that there is a freestanding tort of invasion of privacy in New Zealand. However, on the facts of the case it did not give the appellants any remedy. Gault P and Blanchard J held that
the expansion of breach of confidence, as has happened in the UK courts, might lead to the same outcome, but greater clarity was achieved by analysing breaches of confidence and privacy as separate causes of action. Privacy and confidence are different concepts. Pressing every case involving unwarranted exposure of information about private lives into a cause of action based on trust and confidence only serves to confuse those concepts. There are two fundamental elements for a successful claim for interference with privacy:
1) The existence of facts in respect of which there is a reasonable expectation of privacy; and
2) Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.
The New Zealand Court of Appeal revives the Privacy debate in New Zealand and beyond by recognising a common law tort of privacy. The judgments contain a helpful review of the English and commonwealth cases.