Hosking v Runting & Ors

Gault P, Keith, Blanchard, Tipping and Anderson JJ

Court of Appeal, CA 101/03

25 March 2004

In a significant decision the majority of the Court of Appeal has confirmed the existence in New Zealand of an independent tort of breach of privacy.  This occurred in the dismissal of an appeal by a well-known New Zealand television and radio presenter, Mike Hosking, and his estranged wife.  Mr and Mrs Hosking had failed to obtain an injunction in the High Court preventing a magazine from publishing photographs, taken in public, of the couple’s young twin daughters.  In the court below, Randerson J had held that “the law in New Zealand does not recognise a tortious cause of action in privacy based on the publication of photographs taken in a public place”. As well as the plaintiffs and the defendants, various interveners (the Commissioner for Children and the press) were given standing before the court. 

The appeal was heard by a Full Bench of five judges who, unusually, delivered four separate judgments.  Although the appeal was unanimously dismissed on the facts, the judgments differed as to the existence and scope of a tort of breach of privacy in New Zealand.   Three judges held that such a tort existed, but differed on the precise scope.  Two judges held that no such tort should exist.  The essential difference between the majority and minority was whether the expectation of privacy is a human right to be balanced against the right of freedom of expression, or whether it was merely a value subordinate to that right. 

The leading judgment was delivered by Gault P (now elevated to the new Supreme Court) on behalf of himself and Blanchard J.  A generally concurring judgment was delivered by Tipping J.  The majority judges considered that expectations of privacy could in certain circumstances amount to a right.  They noted that in the UK the tort of breach of confidence had been extended to protect privacy even in situations where no pre-existing confidential relationship existed between the parties.   However, the judges preferred the approach taken in the USA of having a separate tort of breach of privacy.  Tipping J based this preference on the view that breach of confidence is an equitable tort based on unconscionable behaviour whilst breach of privacy is a common law tort based on harm to an individual.  A number of New Zealand cases from lower Courts had previously suggested the possible existence of such a tort.  The majority judges considered that this tort would be a justified restriction on freedom of expression as protected by the New Zealand Bill of Rights Act 1990. 

The elements of the tort identified were based on the USA law and were expressed by Gault P as being:

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. 

Tipping J offered a slightly different second element requiring only a substantial, rather than high, degree of offence. 

The judges also stated that a defence should be available enabling publication to be justified by a legitimate public concern in the information.  This was something of a departure from the earlier New Zealand cases, which postulated that absence of legitimate public interest could be treated as an element of the tort itself.  It was suggested that the main remedy would be damages and that restraint prior to publication would be rare.

The result was described as being “essentially” the same as that in the UK.  However, by having a separate tort from breach of confidence, the considerable USA experience could be drawn upon. 

The majority each considered that the facts of this case fell outside the tort that they had identified as now existing. 

Keith and Anderson JJ both dissented in separate judgments.  They agreed, for generally the same reasons as given by the Court below, that the tort should not exist.  They held that freedom of expression was protected as a right whereas no general right of privacy is recognised at law.  Further, various specific protections for aspects of privacy that are already in place are adequate and there is therefore no real need for this cause of action.  As a consequence, this new tort cannot be demonstrably justified as a restriction on the freedom of expression as required by the New Zealand Bill of Rights Act. 

Keith J held that freedom of expression was of paramount importance.  He noted that a right of privacy had been specifically excluded from the New Zealand Bill of Rights Act and believed that therefore it should not be treated as a right.  He agreed with the majority that the UK approach was also unsatisfactory.  He was concerned that the existence of an ill-defined tort protecting privacy may be financially costly and would have a chilling effect on the freedom of expression. 

Anderson J said, in summary, that:

“This new liability, created in a sidewind, is amorphous, unnecessary, a disproportionate response to rare, almost hypothetical circumstances and falls manifestly short of justifying its limitation on the right to freedom of expression affirmed by the New Zealand Bill of Rights Act”

Despite the narrow margin, and strong dissents, the existence of the tort of breach of privacy in New Zealand is unlikely to be successfully challenged in the near future.  The majority judges in this case now form a majority of the newly constituted Supreme Court.  Keith J has also been promoted to the Supreme Court while Anderson J is now the President of the Court of Appeal.