Laws 301 Lecture Notes Privacy - Tort Law

Torts to the Person 2

Privacy 2

Mechanisms to protect privacy 2

Equity – Breach of Confidence 3

AB Consolidated Ltd v Europe Strength Food Co Pty Ltd [1978] 2 NZLR 515 3

Campbell v MGN Ltd 4

Impact on Third Party Recipients 5

Attorney-General v Guardian Newspapers Ltd [1990] 1 AC 109 (HL) 5

Douglas & Ors v Hello! Ltd [2005] 4 All ER 128 5

Public Disclosure of Embarrassing Private Facts 6

Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 6

P v D [2000] 2 NZLR 591 6

Hosking v Runting [2005] 1 NZLR 1 (CA) 8

Facts 8

Issue 8

Rule 8

Application 9

Tucker v News Media Ownership Ltd [1986] 2 NZLR 716 10

Andrews v Television New Zealand Ltd [2009] 1 NZLR 220 (HC) 10

Campbell v MGN Ltd [2004] 2 AC 457 11

Peck v United Kingdom (2003) 13 BHRC 669 12

Brown v Attorney General [2006] DCR 630 13

TVNZ v Rogers [2008] 2 NZLR 277 (SC) 14

Henderson v Walker 14

Intrusion into Seclusion or Solitude 16

C v Holland [2012] 3 NZLR 672 (HC) 16

Facts 16

Issue 16

Rule 17

When a secret is disclosed, you cannot undisclosed it:

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:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

• Invasion of privacy tort

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

• Defamation

4. 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

1. Information must be of a confidential nature,

2. Information disclosed in circumstances which import obligations of confidence (contract, say is secret, recipient should know),

3. 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...