Our human rights legislation may recognise a right to privacy, but the UK courts still steadfastly refuse to grant damages or other relief for “breach of privacy rights” per se. As of now, the position in New Zealand is quite different.
Who: Mr and Mrs Michael Hosking and "New Idea!" Magazine
Where: The Court of Appeal in New Zealand
When: March 2004
Mr and Mrs Michael Hoskin were a celebrity couple in New Zealand. Following IVF treatment, Mrs Hosking gave birth to twins in June 2001. From that point, the couple refused photo opportunities and interviews in respect of the children. In August 2002, the couple separated and in December 2002 unauthorised photographs were taken of the baby twins, being pushed down a public street in a pushchair. Subsequently, "New Idea!" magazine threatened to publish an article about the couple to include one of the "pushchair" photographs. Mr and Mrs Hosking applied to the court for an injunction preventing its publication.
Breach of privacy claim
Amongst their causes of action was "breach of privacy."
At that time, the position under New Zealand law was exactly the same as it is today in the UK. This is that there is no free-standing right of privacy, for which injunctions could be granted or damages obtained where a breach of the right was threatened or committed. At first instance, the New Zealand court took the UK approach and threw out the Hosking claim for breach of privacy right. On appeal, the court took a different view.
Court of Appeal takes different view
The Appeal judges rejected the approach of the English courts. They believed it was time for the New Zealand courts to create a new "breach of privacy" tort. They determined that this should protect claimants from humiliating, distressful or otherwise harmful publication of private information.
Before determining whether to grant relief in this or any other case, they adjudged that the courts should apply an objective test. This was whether a reasonable person would regard publication as highly offensive.
At this point, Mr and Mrs Hosking must have thought they were onto a winner, but no such luck. Having made a great stride in creating new law, the appeal judges then shrank from granting relief to Mr and Mrs Hosking. They felt that the mere publication of a snap taken of the twins being pushed down a public street in a pram did not pass the "highly offensive to a reasonable person" test.
So the case was thrown out, but in so doing, the courts had made a historic decision.
Why this matters:
One thing that the decision establishes is that it is not too difficult to formulate a definition of a tort of breach of privacy which makes sense and ought to be relatively easy to apply to given facts.
The case may of course end up before the Privy Council here in the UK, since there should be a right of appeal to that forum from judgements of the New Zealand Court of Appeal. However, for the moment, this judgement remains a beacon for those pressing for a properly formulated and enforceable right of privacy here in the UK and this is surely not the last we will hear of it.
Relevance to advertising?
In an advertising context, no TV advertisement can recognisably depict or refer to a living person without that person's prior consent in any event.
The position is more blurred in a print advertising context, where, for example, there might be recognisable individuals in the background of a street scene.
Depending on the context and the message of the advertisement or the brand, it is possible that the appearance of the individual could be regarded by a reasonable person as "highly offensive."
However, wouldn’t the depiction of a living person that was "highly offensive" also be very likely to be defamatory? If so, an action for libel would be likely to lie in any event without the need for any freestanding privacy right.