Right to privacy in New Zealand

New Zealand is committed to the Universal Declaration of Human Rights and has ratified the International Covenant on Civil and Political Rights, both of which contain a right to privacy.[1] Despite this, currently there is no general right to privacy in New Zealand law.[2] Privacy tends to hold the status of a value or an interest, rather than a right.[3] Privacy interests are protected by legislation in many specific areas, and in recent years a general tort of invasion of privacy has developed.[4] Support for the recognition of privacy as a right has been given by two Supreme Court judges, and in August 2011 the New Zealand Law Commission released the final stage of its Review of the Law of Privacy, throughout which it makes many recommendations of changes to privacy law in New Zealand.[5]

New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act 1990 (NZBORA) is based on the International Covenant on Civil and Political Rights,[6] however no express right to privacy is included in the Act. Despite the lack of an express right, privacy is the foundation for many of the rights contained within NZBORA, such as freedom from unreasonable search and seizure as protected by section 21.[7] The fact that a right to privacy is not included in NZBORA does not affect or invalidate it in any way.[8] It is suggested that privacy was not included in NZBORA due to its difficulty to define, and because the social environment at the time was not one in which it was appropriate to implement a right with vague and uncertain parameters.[9]

Privacy Act 1993

New Zealand does have a statute entitled the Privacy Act 1993. However, despite its declaration that it is an Act to promote and protect individual privacy, it in fact only covers information privacy. The Privacy Act was created to combat concerns about technological advances and their potential to be used to access private information, when this risk had been far less under manual data systems.[10]

The Act contains 12 Information Privacy Principles which govern the handling of private information by agencies. An 'agency' is widely defined as any person or body of persons, whether public or private, and whether corporate or unincorporated, with specified exceptions.[11] There are also numerous exceptions to the Information Privacy Principles, which can be found both within the principles and in other places within the Act.[12]

When an individual feels there has been a breach of the principles he or she can lodge a complaint with the Privacy Commissioner.[13] The Privacy Commissioner investigates the complaint and undertakes a process of conciliation rather than punishment.[14] If the complaint cannot be settled, it may be referred to the Human Rights Review Tribunal, which will consider the situation anew. If the Tribunal finds there has been a breach, it may award a range of remedies including damages and restraining orders.[15] With one exception, none of the Information Privacy Principles are enforceable in court.[16]

The Privacy Act recognises that privacy is not an absolute concept and that there are other factors which need to be weighed to determine what the outcome should be. The Privacy Commissioner must always have regard to factors such as human rights, social interests, and international obligations and guidelines.[17] The Privacy Commissioner is able to make authorisations regarding the use of private information which would normally be contrary to the Act if he or she is satisfied that the public interest or benefit outweighs the interference with privacy.[18]

Broadcasting Act 1989

The Broadcasting Act 1989 requires broadcasters to maintain standards consistent with the privacy of the individual. The Act establishes the Broadcasting Standards Authority (BSA), which has the functions of receiving and deciding complaints against broadcasters, issuing opinions relating to ethical conduct and standards in broadcasting, and issuing codes of practice for broadcasters and encouraging compliance with them.[19] Privacy is consistently mentioned in the codes and standards of practice issues by the BSA.[20] While the Broadcasting Act does not provide any explanation of what constitutes a breach of privacy, the BSA has seven principles relating to alleged breaches of privacy.[21] In considering a complaint, the BSA can award a variety of remedies if it finds there has been a breach, but there is no ability to take a complaint to a court of law based on the standards contained within the Act.[22]

Common law

A general tort of invasion of privacy exists in New Zealand. The case which is accepted to be the first which found that a tort of privacy may exist was Tucker v News Media Ownership Ltd, in which the judge supported the introduction of such a tort into the law of New Zealand.[23] A few years later in Bradley v Wingnut Films, the judge accepted that a tort of privacy did exist in New Zealand law, but that it should be approached with caution as it was in the earlier stages of development.[24] The most crucial New Zealand High Court decision was that of P v D, where the court defined the elements of a tort of privacy as:[25]

The New Zealand Court of Appeal in a bare majority in Hosking v Runting accepted that there was a tort of privacy in New Zealand. The tort was affirmed as protection in this area was needed and the breach of confidence tort was not suitable to cover situations involving privacy.[26] The two requirements for the tort set out by the majority closely reflect those set out in P v D:

In addition, privacy had to be weighed against the defence of legitimate public concern which encompasses the right to freedom of expression.[27]

The Supreme Court of New Zealand has in one case accepted that a tort of privacy exists for the purposes of a case before it, but had differing opinions about its requirements and application.[28] In another case the court acknowledged the decision of Hosking but refrained from commenting.[29]

Future directions

In dissenting judgments, two judges of the Supreme Court of New Zealand have voiced their support for the strengthening of privacy rights in New Zealand. McGrath J outlined the international and domestic recognition of the right to privacy, concluded that privacy is close to matching the strength given to the right to freedom of expression, and used the privacy interests of an individual concerned in the case as the main reason for his conclusion and dissent. Thomas J explicitly stated his support for privacy to be given the status of a right, and reasoned his support by citing the NZBORA, international instruments, judicial decisions and social attitudes.[30]

In August 2011, the New Zealand Law Commission released the fourth and final part to a detailed inquiry into the state of New Zealand’s privacy laws. The four parts discuss the concept of privacy, public registers, the invasion of privacy in both civil and criminal contexts, and the Privacy Act 1993.[31] The Commission recommends a range of changes be made to the law, such as the creation of a Do Not Call register and better protection of online information. Some of these recommendations are currently tabled before Parliament, while others are currently awaiting a response from the government.[32]

These developments demonstrate that the status of privacy in New Zealand is considered to be an important issue which will continue to be reviewed and developed.

If New Zealand were to make a commitment towards protecting the right to privacy, it may have to withdraw from the Five Eyes programme, and other Nato-backed initiatives which involve globalised mass surveillance, which violates privacy rights.

See also

References

  1. ↑ Universal Declaration of Human Rights, Art 12; International Covenant on Civil and Political Rights, Art 17.
  2. ↑ Brooker v Police [2007] NZSC 30; [2007] 2 NZLR 91 at [164].
  3. ↑ Steven Penk and Rosemary Tobin, Privacy Law in New Zealand (Brookers Ltd, Wellington, 2010) at 21-22
  4. ↑ See Privacy Act 1993; Broadcasting Act 1989; Hosking v Runting [2005] 1 NZLR 1
  5. ↑ See the judgments of JJ McGrath and Thomas in Brooker v Police [2007] NZSC 30; [2007] 2 NZLR 91; Law Commission Review of the Privacy Act Key Recommendations
  6. ↑ New Zealand Bill of Rights Act 1990, long title.
  7. ↑ New Zealand Bill of Rights Act, s 21; Steven Penk and Rosemary Tobin, Privacy Law in New Zealand at 18.
  8. ↑ New Zealand Bill of Rights Act 1990, s 28.
  9. ↑ Hosking v Runting [2005] 2 NZLR 1 at [92]-[94].
  10. ↑ Steven Penk and Rosemary Tobin Privacy Law in New Zealand at 50-51.
  11. ↑ Privacy Act 1993, s 2 and 6.
  12. ↑ See Privacy Act 1993, s 6, principles 2 and 3, and ss 54-57 as examples.
  13. ↑ Privacy Act 1993, ss 66-67.
  14. ↑ Privacy Act 1993, s 69(1)(b)
  15. ↑ Privacy Act 1993, s 85.
  16. ↑ Privacy Act 1993, s 11.
  17. ↑ Privacy Act 1993; s 14.
  18. ↑ Privacy Act 1993, s 54.
  19. ↑ Broadcasting Act 1989, ss 4(1)(c) and 20-21.
  20. ↑ Steven Penk and Rosemary Tobin Privacy Law in New Zealand at 206.
  21. ↑ Hosking v Runting [2005] 1 NZLR 1 at [104]-[105].
  22. ↑ Broadcasting Act 1989, s 13.
  23. ↑ Tucker v News Media Ownership [1986] NZHC 216; [1986] 2 NZLR 716 at 731-733
  24. ↑ Bradley v Wingnut Films [1993] 1 NZLR 415 at 423.
  25. ↑ P v D [2000] 2 NZLR 591 at [34]
  26. ↑ Hosking v Runting [2005] 1 NZLR 1 at [45]-[49] and [108]-[116].
  27. ↑ Hosking v Runting [2005] 1 NZLR 1 at [117], and [129]-[130].
  28. ↑ Rogers v Television New Zealand [2007] 1 NZSC 91; [2008] 2 NZLR 277 at [23]-[26], [98]-[99], and [144]-[145].
  29. ↑ Brooker v Police [2007] NZSC 30; [2007] 2 NZLR 91 at [40] and [122]
  30. ↑ Brooker v Police [2007] NZSC 30; [2007] 2 NZLR 91 at [122]-[129] and [136]-[148] per McGrath J dissenting and [164] and [213]-[229] per Thomas J dissenting
  31. ↑ Law Commission A Conceptual Approach to Privacy (MP19, 2007); Law Commission Public Registers: Review of the Law of Privacy Stage 2 (R101, 2008); Law Commission Invasion of Privacy: Penalties and Remedies: Review of the Law of Privacy Stage 3 (R113, 2010); Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 Part 1 (NZLC R123, 2011); Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 Part 2 (NZLC R123, 2011)
  32. ↑ Law Commission “Review of Privacy” (2011)

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