Court of Appeal confirms existence of tort of breach of privacy

In Hosking v Runting, a majority in the Court of Appeal has confirmed the existence of the tort of breach of privacy in New Zealand.

In a long awaited judgment, Gault P and Blanchard and Tipping JJ held that there are two fundamental requirements for a claim to be successfully brought for interference with privacy, namely:

1. The existence of facts in respect of which there is a reasonable expectation of privacy; and
   
   
2. Publicity given to those facts that would be considered highly offensive to an objective reasonable person.

The majority was at pains to stress that it was not attempting to prescribe all the boundaries of the cause of action in the case before it and that the cause of action will evolve through future decisions “as courts assess the nature and impact of particular circumstances”.

However, in strong dissenting judgments both Keith and Anderson JJ strongly criticised the recognition of the tort as unnecessary and an unwelcome encroachment on the right of freedom of expression, Anderson J going so far as to say:

“Freedom of expression is the first and last trench in the protection of liberty. All of the rights affirmed by [the New Zealand Bill of Rights] are protected by that particular right. Just as truth is the first casualty of war, so suppression of truth is the first objective of the despot. In my view, the development of modern communications media, including for example the world wide web, has given historically unprecedented exposure of and accountability for injustices, undemocratic practices and the despoliation of human rights. A new limitation on freedom of expression requires, in my respectful view, greater justification than that a reasonable person would be wounded in their feelings by the publication of true information of a personal nature which does not have the quality of legally recognised confidentiality.”

Enquiries and information

For more information on the tort of breach of privacy, please email or call Garry Williams on 64 9 9168661.