Hosking v Runting - Detailed case brief, including paragraphs and page references Topic: Privacy, PDF

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Detailed case brief, including paragraphs and page references
Topic: Privacy, reasonable expectations...

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Hosking v Runting Area of law concerned:

Privacy

Court:

NZ Court of Appeal

Date:

2005

Judge:

Gault, Blanchard, Tipping JJ

Counsel: Summary of Facts:

Issues:

Respondent, Runting, photographed the appellant’s 18 month old twins on the street in Newmarket. Appellants look to prevent publication of the photos. The appellants were minor celebrities and had previously talked to the media about their children while Mrs Hosking was pregnant. They argued that the photos were a breach of the twins’ privacy. Permanent injunction restraining respondents from taking and publishing photographs of their children until they turned 18. Is there a tort of privacy in New Zealand?

Procedural History:

High Court had found no tort.

Plaintiff/Appellant’s arguments Defendant/Respondent’s arguments: Result:

No injunction; too public to protect the information.

Relief sought:

Judge’s reasoning:

Two fundamental requirements 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 starting point for privacy as established in P v D [117]

The cause of action will evolve through future decisions as Courts assess the nature and impact of particular circumstances. This case will not proscribe boundaries. [118]

At this point we are only concerned with the third formulation… ‘wrongful publicity given to private lives. We need not decide at this time whether a tortious remedy should be available in New Zealand law for unreasonable intrusion into a person’s solitude or seclusion… Long lens photography, audio surveillance and video surveillance now mean that intrusion is possible without a trespass being committed. Start off small. Privacy will probably become more relevant with improving technology. [118]

In the USA context, public figures have lost to an extent their right to privacy because (1) they have sought privacy, (2) their personalities and

affairs are already public affairs, and (3) there is a legitimate public interest in publication of these details Reasons privacy has failed in USA [120]

Reasonable expectation of privacy The right to privacy is not automatically lost when a person is a public figure, but his or her reasonable expectation of privacy in relation to many areas of life will be correspondingly reduced as public status increases. Involuntary public figures may also experience a lessening of expectations of privacy, but not ordinarily to the extent of those who willingly put themselves in the spotlight. Public figures and privacy [121]

The fact that the Hoskings had placed the fact of their children’s pending birth in the public light must have objectively diminished expectations of privacy. Children cannot control their parents’ actions [123]

It is a matter of human nature that interests in the lives of public figures also extends to interests in the lives of their families. In such cases the reasonable expectations s of privacy in relation to at least some facts of the families’ private lives may be diminished. Interest extends to families by nature. [124]

Highly offensive The right of action should only be in respect of publicity determined objectively, by reference to its extent and nature, to be offensive by causing real hurt or harm. Only sensitive information protected. Humiliating, distressful or otherwise harmful to the concerned individual(s) [126]

Highly offensive to the reasonable person is an appropriate test. This relates to the publicity, and not part of the test of whether the information is private or not. [127]

Personal injury or economic loss are not necessary to the action. [128]

Defence There should be a defence enabling publication to be justified by a legitimate public concern in the information. The defendant will have to provide the evidence of the concern, if plaintiff has established an interference in privacy. Public interest defence (once privacy breach established) [129]

Scope of privacy protection should not exceed limits on freedom of expression as is justified in a free and democratic society.

[130]

The importance of the value of the freedom of expression therefore will be related to the extent of legitimate public concern with the information. Greater intrusions of privacy have to be justified by a greater public concern. Note that ‘concern’ is used to distinguish from ‘interest’ or ‘curiosity.’ Matters of general interest or curiosity are not enough to outweigh substantial breach of privacy. [132]

The general position is that usually an injunction to restrain publication in the face of an alleged interference with privacy will only be available where there is compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information. In most cases, damages will be considered an adequate remedy. High threshold. [148]

On the case The inclusion of the photographs of Ruby and Bella in an article in New Idea! Would not publicise any fact in respect of which there could be a reasonable expectation of privacy. The photographs taken by the first respondent do not disclose anything more than could have been observed by any member of the public in Newmarket on that particular day. They do not show where the children live, or disclose any information that might be useful to someone with ill intent. The existence of the twins, their age, and the fact that their parents are separated are already mattes of the public record. No private information to breach here [164]

we are not convinced a person of ordinary sensibilities would find the publication of these photographs highly offensive or objectionable even bearing in mind that young children are involved. The real issue is whether publicising the content of the photographs would be offensive to the ordinary person. We cannot see any real harm in it. [165]

Tipping J: It is actionable as a tort to publish information or material in respect of which the plaintiff has a reasonable expectation of privacy, unless that information or material constitutes a matter of legitimate public concern justifying publication in the public interest. Whether the plaintiff has a reasonable expectation of privacy depends largely on whether publication of the information or material about the plaintiff’s private life would in the particular circumstances cause substantial offence to a reasonable person. Whether there is sufficient public concern about the information or material to justify the publication will depend on whether in the circumstances those to whom the publication is made can reasonably be said to have a right to be informed about it. A reasonable expectation to privacy, legitimate concern, BUT only substantial offence to reasonable person.

[259]

What can be learned from this case.

2 judges dissented....