At a time when the British tabloids are wringing their hands over whether to publish naked photos of Prince Harry, the High Court here has ruled that the mere taking of such photos, whether or not they are published, is an actionable breach of privacy.
At a time when the British tabloids are wringing their hands over whether to publish naked photos of Prince Harry, the High Court at Christchurch has ruled that the mere taking of such photos, whether or not they are published, is an actionable breach of privacy.
The case involved a woman who was filmed naked in the bathroom by a man who co-owned her boyfriend’s house, who had installed a hidden camera in a roof cavity. (The woman's name and other identifying details are suppressed).
The boyfriend found the footage and the man pleaded guilty to making an intimate visual recording. He was ordered to pay $1000 in reparation and given no further penalty, which seems on the face of it a bit light, though I haven’t seen the sentencing decision.
The woman decided to sue in tort. The court was immediately faced with the issue of whether the tort of invasion of privacy can extend to situations where there has been intrusive behaviour but no publication of private facts.
The leading case, Hosking v Runting, left this question open. The High Court has now answered it: yes.
In a thoughtful and thorough decision that echoes the reasoning process followed in Hosking, Whata J has recognised intrusion as a form of privacy violation, if the following elements can be proved:
There is a defence of legitimate public concern.
In doing so, the judge has mirrored this strand of the tort as it exists in the US, also recently recognised in Canada and for many years now applied by our Broadcasting Standards Authority.
I advocated this development here.
RAW DATA: The hearing was on April 20 this year. Justice Christian Whata released his decision on August 24. Read it here (PDF).
This article first appeared on Media Law Journal, a blog by Wellington barrister and media law commentator Steven Price.
