#17696 - Laws 301 Lecture Notes Privacy

Probably one of the most private things in the world is an egg until it is broken. – MFK Fisher “Ode to an Egg” in The Art of Eating Houghton Mifflin Harcourt, 2014 at 264

Another difficulty is that there is a competing value at stake – freedom of speech

The Courts have had to draw bounds and mediate between both competing interests
Law has development principles to balance these competing interests

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual … the right to be let alone. Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that what is whispered in the closet shall be proclaimed from the house-tops. For years there has been a feeling that the law must afford some remedy for the unauthorised circulation of portraits of private persons; and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed… - Samuel D Warren & Louis D Brandeis “The Right to Privacy” (1890) 4 Harvard LR 193 at 195

There are four ways of viewing privacy:

Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
Public disclosure of embarrassing private facts about the plaintiff.

Invasion of privacy tort

Publicity which places the plaintiff in a false light in the public eye.

Defamation

Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

Even without the tort of privacy before 2005, there were a number of mechanisms provided by the law to protect privacy:

Trespass – going onto someone else’s property and taking photographs. Law of trespass may prevent use of those photographs – ABC v Lenah Game Meats Pty Ltd (2001)
Defamation – plaintiff was defamed by a photograph of himself being put in the front page of newspaper – McDonald v North Queensland Newspaper Company
Copyright – if private information is contained in a literary work, copyright can prevent it from being distributed
Contract – non disclosure agreements are contracts which restrict publicity
NZBORA does not directly protect privacy, but gives express protection to freedom of speech, and right to not be subjected to unreasonable search and seizure
Privacy Act – aimed at protecting private information held by public bodies such as university
Harassment Act – criminalises loitering,
Crimes Act – interception devices, intimate covert filming
Harmful Digital Communications Act – privacy related principles
Broadcasters and press have their own codes and protocols surrounding protection of private information.

Breach of confidence is an equitable cause of action of ancient origins, developed to protect unpublished manuscripts and trade secrets. The basis for judicial intervention was justified on differing grounds throughout its history, but it is now generally accepted that a person who has received information in confidence is bound to uphold the confidence that springs from that relationship and that equity binds the conscience of the recipient. In its modern formulation, breach of confidence has been used to protect personal information since at least 1967. – Henderson v Walker [2019] NZHC 2184 at [145]

Cannot disclose information received in confidence
Cannot use information received in confidence for one’s benefit
Prince Albert v Strange (1849) – strange made copies of painting of Queen Victoria for Prince Albert but also made extra copies and started selling them

Coco v A N Clark (Engineers) Ltd [1969]

Plaintiff designed a moped and went to defendant to get them to make a prototype.

Defendant made more than one prototype, made a batch and started selling them.
Court held that defendant had not right to do this

Three elements – Copinger and Dkone James on Copyright

Information must be of a confidential nature,
Information disclosed in circumstances which import obligations of confidence (contract, say is secret, recipient should know),
Defendant is about to make, or has made unauthorised disclosure of confidential information (injunction, or authorised disclosure has happened (damages)

Plaintiff was international manufacturer and developed process of making confectionary products.

Manufacturing techniques were information of confidential nature and had the necessary quality of confidence – process as a whole was not public knowledge.
Plaintiff wanted to enter into joint venture with defendant in NZ, shared secret techniques
They negotiated with plaintiff, but they never reached an agreement for a joint venture – defendant used confidential information to manufacture their own product
There was no mention of disclosing confidential information in the contract, and plaintiff did not say it was a secret (no fiduciary obligations)
Instead, the plaintiff relied on broad principles of equity – breach of confidence

He who receives information in confidence shall not take unfair advantage of it – Lord Denning

The issue was whether the information was supplied in circumstances which give rise to an equitable remedy:

Defendant argues that Court should be reluctant to accept existence of special relationship needed to give rise to equitable jurisdiction
However, issue is not whether special relationships can be recognised, but whether there is an obligation of confidence fairly resting upon the recipient of confidential information
Defendants received information on basis of negotiations – visit was allowed on that basis alone

Trial judge found that defendant was clearly stuck and did not know how to progress

Even if they would have progressed, confidential information gave them a headstart, saving time and effort.

Campbell is a famous model, photos of her in a public place revealed private information about her whereabouts

Court treated information as confidential information
Private information relating to individuals can be protected to

Lecture 5: (10/03/20)

Defendant wrote a book, legislation prevented publication of details of life as a spy

Government could not stop publication of the book in the US
Government sought to prevent the information from getting back to the UK via newspapers, who are a third party recipient

…a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others… I realise that, in the vast majority of cases, in particular those concerned with trade secrets, the duty of confidence will arise from a transaction or relationship between the parties... But it is well settled that a duty of confidence may arise in equity independently of such cases. I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers — where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by.

Photographs at Michael Douglas’ wedding. Magazine gets exclusive coverage of wedding, very tight security.

Someone sneaks in, sells candid photographs to Hello! Magazine
Photographer was fully aware of security arrangements – breach of confidence
House of Lords also found that Hello! Magazine had breached confidence via publication because they knew the photos had been obtained via breach of confidence

In England, the law has developed the breach of confidence doctrine to recognise breach of privacy

Breach of confidence invasion of privacy
Should the NZ law take a different approach?
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#17696 - Laws 301 Lecture Notes Privacy - Tort Law

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