The New World (page 240)

In a judgment handed down today, the New Zealand Court of Appeal rejected an attempt by Mike Hosking, a former TV presenter, to prevent a women’s magazine from publishing photos of his twin daughters. Hosking and his estranged wife, Marie, had appealed against a High Court decision allowing New Idea to publish photographs taken by Simon Runting in an Auckland street. The Hoskings said they feared the twins might be kidnapped if photos were published.

Despite ruling in favour of Hosking on the facts, a majority of the court came down in favour of a privacy law.

Justice Gault, president of the court, and Justice Blanchard said at paragraph 148:

We think the case for a right of action for breach of privacy by giving publicity to private and personal information is made out. We take that view, in summary, because:
· it is essentially the position reached in the United Kingdom under the breach of confidence cause of action…
· it will allow the law to develop with a direct focus on the legitimate protection of privacy, without the need to be related to issues of trust and confidence.

Justice Tipping said at paragraph 247:

The result in substantive terms of recognising a separate tort is not significantly different from the extended form of the breach of confidence cause of action as it is being developed in the United Kingdom. What is at stake is really a matter of legal method rather than substantive outcome. It cannot logically be held that one method is an unjustified limit on freedom of expression whereas another is not. New Zealand Courts have, to a greater or lesser extent, already espoused a separate tort to protect privacy interests. I am not persuaded there is any good reason to put the clock back and confine our law to a method of analysis which does not fit the true nature or the realities of the cause of action.

But Justice Anderson said at paragraph 271:

I think we should not lose sight of the fact that this litigation came into being to prevent the publication of photographs of people in a public street. It is quite unlike the situation of Mr Peck in that there was nothing in the least personally embarrassing or distressing about the material which might be published. We have held, unanimously, that there was no right in anyone to prevent publication, but in the process the majority has declared that there is a new civil liability for publishing facts about a person. In my respectful view, 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.

Posted at March 25, 2004 06:00 PM