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:
- The existence of facts in respect of which there is a
reasonable expectation of privacy; and
- 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.
Contacts
Litigation
team