NZ Court of Appeal examines requirements for tort of invasion of privacy
30 Nov 2021
A recent Court of Appeal decision has signalled significant shifts in the development of the tort of invasion of privacy in New Zealand.(1) The Court of Appeal held that there is no need for widespread disclosure for an actionable breach of privacy. However, both the reasons for, and the scope of, disclosure will be material to whether an actionable invasion of privacy has occurred, and the application of the public interest defence.
The Court of Appeal also declined to remove the requirement for the publication of private information to have been "highly offensive" (as has occurred in the United Kingdom). However, in doing so, it flagged that it is a point to be resolved in an appropriate future case.
Between 2010 and 2017 Winston Peters received pension overpayments. Peters was a member of Parliament and the leader of the New Zealand First party. The overpayments were due to his pension payments being incorrectly calculated at the "single" rather than "partnered" person rate while Peters had a partner. The overpayments were discovered in 2017, at which point Peters arranged for repayment of the overpaid amount. There was no suggestion of wrongdoing by Peters.
The pension overpayments were discovered in the lead up to New Zealand's 2017 general election and only weeks after the co-leader of the NZ Green Party, Metiria Turei, resigned following her announcement that she had received benefits in the past to which she was not entitled. Shortly after the overpayments were discovered, NZ media outlets began receiving anonymous tip offs regarding Peters' pension overpayments, which led to Peters releasing a pre-emptive statement publicising the issue. The overpayments became a major political story of the 2017 general election.
It later emerged that in July 2017, the chief executive of the Ministry of Social Development (MSD), Mr Boyle, had been advised on the pension overpayments. Boyle confidentially briefed both the state services commissioner and two National Party ministers – Ms Tolley (the minister of social welfare) and Ms Bennett (the minister for state services). The briefings were provided under the government's "no surprises" policy. The media leaks commenced in August 2017. The source of the media leaks could have come from a number of people within the MSD, the state services commissioner's office or the two ministers' offices. Peters commenced proceedings against:
- the MSD;
- the chief executive of the MSD;
- the state services commissioner; and
- the two ministers.
The High Court held that the leaking of Peters' pension information to news media was an actionable breach of his privacy (with an indication that appropriate damages would be in the region of NZ$75,000 to NZ$100,000). However, on the evidence presented, Peters was not able to establish who was responsible for the disclosure. As such, the claims were dismissed.
Court of Appeal
Peters appealed the dismissal of his claims against the two chief executives and the MSD (having conceded that neither minister was responsible for the media leaks). As the source of the media leaks could not be determined, Peters' appeal focused on the disclosure of his private pension information by the MSD and the chief executives to the ministers.
The Court of Appeal adopted the two-limb test set out in Hosking v Runting for the tort of invasion of privacy:
- the existence of facts in respect of which there was a reasonable expectation of privacy; and
- publicity given to those private facts that would be considered highly offensive to an objective, reasonable person.
The Court of Appeal confirmed that Peters had a reasonable expectation of privacy in respect of his pension information. This extended to a reasonable expectation that the information would not be disclosed to the public generally. However, the Court held that the scope of the expectation of privacy in any particular case must be focused on the particular disclosure that occurred. In the circumstances, Peters had no reasonable expectation that his pension information would not be disclosed to relevant representatives and officers within government. The internal disclosures were in good faith, and for proper business reasons.
At the heart of Peters's appeal was a challenge to the "highly offensive" limb of the tort of invasion of privacy. Peters relied on UK authority to argue that the second limb of the test outlined in Hosking v Runting should not use the "highly offensive" standard, but instead require only the use of private information that is not justified by the reason the private information is held in the first place.
The Court of Appeal held that, on the facts, the scope of disclosure had not breached a reasonable expectation of privacy, so the appeal failed on the first limb of the Hosking v Runting test. Therefore, it was unnecessary for the Court to determine conclusively whether a lower threshold than "highly offensive" should be applicable to the second limb. However, the Court acknowledged that the UK House of Lords had rejected a highly offensive requirement as an element of the tort under English law, the threshold being the subject of both academic and judicial criticism in New Zealand, and indicated that it was a point to be revisited in an appropriate case.
The Court of Appeal's decision provides important guidance on the scope of the developing tort of invasion of privacy in New Zealand. However, in several areas the precise formulation of the tort was left for resolution in appropriate future cases.
It is now clear that widespread publication of private information is not required for an actionable invasion of privacy in New Zealand. Rather, the scope of publication required will be highly fact specific – publication to only a small class of people (potentially even to only one person) can be enough, but that will depend on the circumstances and justification for the disclosure.
The intention of the person who has disclosed private information is an important factor. The Court put weight on the evidence that the disclosures within MSD and to the ministers were made in good faith and had a proper business justification. Conversely, disclosure to a small number of people done in bad faith (for example, for the purpose of enabling information to be passed onto the media) "could well" have given rise to liability.
There is an established defence where otherwise actionable disclosure of private information could be justified by a legitimate public interest. The Court of Appeal acknowledged that, as the tort can be committed through disclosure to only a small group of people, the public interest defence needs to be adapted so that the scope of protection against liability for disclosure is equivalent with the scope of the legitimate public interest in receiving the information. The precise reformulation of the public interest test was left open for a future case; although, the Court referred to the defence of qualified privilege in the context of defamation as a useful analogy.
Finally, whether publication must be "highly offensive" to be actionable remains an open question in New Zealand.
For further information on this topic please contact Guy Tompkins at Wilson Harle by telephone (+64 9 915 5700) or email ([email protected]).
(1) Winston Peters v Attorney-General on behalf of Ministry of Social Development  NZCA 355.