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Public persona, private life

By - 21 Jul 2015

The recent publication by a magazine of a photo featuring Dan and Honor Carter's 2-year old child has reignited debate over what media outlets should or shouldn't be allowed to publish.

Some parties have criticised the magazine's actions saying the child has a right to privacy and the couple's wishes about privacy should be respected. Other commentators have said that the photos are simply a consequence of the Carters being in the public spotlight.

In New Zealand you are able to bring a claim for an invasion of privacy.

Hosking v Runting is the most high profile decision in this area. In this case the Court of Appeal outlined two essential elements that needed to be established for a successful claim:

  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.

This claim only applies to "private facts" - facts that may be known to some people, but not to the world at large. There is no simple test for what constitutes a private fact. An English Court of Appeal case was cited which referred to what a "reasonable person applying contemporary standards of morals" would deem to be private. Information relating to personal relationships, finances or health would likely be considered private.

A public interest defence based on freedom of speech principles is another obstacle which must be overcome.

An invasion of privacy was not found in Hosking mainly because the photos had taken place in a public area and there was a lack of evidence that the publication of the photos would be harmful to the children.

The Carter case is almost identical to the Hosking case so it is unlikely that they would be able to succeed in a claim for breach of privacy. However the law is still far from settled and as more cases go through the courts the law will be developed and we should have a firmer idea on the limits that apply to the publication of photos by the media.


Rob Akroyd

Andrew Steele


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