Privacy - Colin Gavaghan PDF

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Structure for opinions and notes for exam...

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Privacy - Colin Gavaghan Hosking Variant - Elements of the Offence -

Publication of information - if no publication, can’t be Hosking variant

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About which the person must have a reasonable expectation of privacy

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Was the publication highly offensive to a reasonable person

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Information must be of a private nature

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Must be humiliating or distressful to a reasonable person

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Only exception is when publication happened due to legitimate public concern 9not interest)

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Public concern - do readers have the right to be informed

Structure of Legal Opinion -

Publication?

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Reasonable expectation of privacy?

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Highly offensive?

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Legitimate public concern?

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ILAC - Issue, Law, Application, Conclusion (where you use analogies and distinguishing)

What to do in the exam -

Identify legal issues Apply law to the problem - no right answer. Judged on the ability to reason and build an argument.

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Stick to cases in course materials

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Which judge said ….. Not important - but would be impressive and could get u a mark

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Use subheadings - maybe underline important parts like doctrines

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Write out a brief plan - with bullet points. If you run out of time, you’ll still get points for recognising an issue so don’t delete any of them.

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Include Obiter comments

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Remedy - Injunction or compensation?

Was there a publication? Henderson v Walker -

Disclosure does not have to be widespread but facts will have to be very private for the publication to meet the test for being offensive.

Was there a reasonable expectation of privacy? -

Need to be identifiable beyond their intermediate circle- Mention identification in Bradley v Wingnut. Tombstone was only in the film for 14 seconds, couldn’t see the writing on it and couldn’t be identified by viewers so publication couldn’t be highly offensive.

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Involuntary participants? - Obiter comment on whether plaintiffs brought publicity upon themselves. - Andrews v TVNZ

Hosking v Runting -

“Give up expectations of complete privacy by living in communities”

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Public figures (and their children) have a reduced right to privacy.

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Something that happens in a public place is unlikely to give rise to a reasonable expectation of privacy

Andrews v TVNZ -

Private facts are facts that “may be known to some people but not the world at large…”facts of which there is a reasonable expectation of privacy.”

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Illegal actions have no right to privacy

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Events that occur in a public place are not entitled to privacy however, could make a claim to protection from additional publicity (e.g., not expecting information to be made more public than it already was).

Was the publication highly offensive to a reasonable person? Henderson v Walker -

If the intention of the intrusion is arguably malicious, this will increase the offensive nature.”

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More extensive publication will likely be more offensive

Andrews v TVNZ -

Publication itself must be highly offensive

Is there a defence of legitimate public concern? Is it important for them to know? Hosking v Runting -

Concern vs interest

Andrews v TVNZ -

“Serious underlying purpose.”

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In Andrews the TV show was legitimate concern because it was for a “serious underlying purpose

Privacy - Colin Gavaghan Holland Variant - Elements of the Offence -

An intentional and authorised intrusion

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Into seclusion (intimate space)

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Involving infringement of a reasonable expectation of privacy

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That is highly offensive to a reasonable person.

Was there intrusion into seclusion? C v Holland -

“Intimate personal activity, space or affairs.”

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“Mostly directly impinging on personal autonomy.”

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What’s important is “the type of interest involved and not the place where the invasion occurs.”

Was there a reasonable expectation of privacy? -

If an intrusion into personal activity, space, or affairs, it has to be assessed to whether it is sufficient to breach a reasonable expectation of privacy

Place C v Holland -

Whether the place is conceptually linked to intimacy and personal privacy

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“The judgements do not preclude a claim arising from conduct in a public space.”

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...but whether the place was in a public or private premises” is an important consideration Faesenkloet v Jenkin

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Obiter from Faesenkloet v Jenkin - If area is used exclusively, may be seclusion

Intrusiveness -

Nature and degree of surveillance

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Concerning actions of the intruder

Object of Surveillance Faesenkloet v Jenkin -

“The greater the expectation of privacy, the more likely an intrusion will be offensive.”

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Difference between being seen and having a permanent record made of that activity

Was the publication highly offensive to a reasonable person? C v Holland -

“The test is whether the intrusion into the place where there is the reasonable expectation of privacy would be highly offensive to a reasonable person.”

Faesenkloet v Jenkin -

Purpose/motivation is an important consideration

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If know about intrusion, one should take actions to avoid breach of privacy

Andrews v TVNZ -

More likely to be offensive if it shows them in a bad light.

Remedies for both variants require remedy of injunction or compensation

Legal Opinion - Grade Requirements A+ to A-

These answers concentrate on contentious issues and are able to assess arguments for both parties in a balanced way and give detailed, clear and convincing reasons why one argument is likely to prevail on an issue.

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The answer is well structured and the expression is clear – it is not necessary to continually go back to see what the student is trying to say.

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The structure allows connections between the facts and the case law to be made in a smooth and persuasive manner.

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The answer shows the ability to use the full range of arguments – similarities and differences in material facts, use of underlying rationales, understanding of trends in the law, use of status of the decision and sound judgement about the arguments a judge is likely to accept or reject.

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Exceptional answer - construct proper argument. Get all elements

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You can use analogies and distinguish from other cases - shows good reasoning

B+ to B -

More mastery of the problem, particularly confidence in isolating contentious issues and clearly explaining why others are non-contentious.

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Consideration of the arguments for both parties on most issues, in terms of supporting reasoning.

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Issues are resolved by use of the case law, analogy reasoning and by use of the underlying rationale of the decisions

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Some awareness of the status of a decision in terms of whether it is binding.

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The opinion is somewhat but not fully persuasive in terms of its final resolution....