Court/Judicial body: New Zealand Court of Appeal
Date: March 25, 2004 CRC
Provisions: Article 3: Best interests of the child; Article 8: Preservation of identity; Article 16: Protection of privacy Article 19: Protection from abuse and neglect; Article 32: Child labour; Article 36: Other forms of exploitation.
Other international provisions:Universal Declaration of Human Rights, Article 12: Prohibition against arbitrary interference with a person’s privacy.European Convention on Human Rights, Article 8: Right to respect for private life.International Covenant on Civil and Political Rights, Article 17: Prohibition against arbitrary or unlawful interference with a person’s privacy and right to protection of the law against such interference.
Domestic provisions:New Zealand Bill of Rights (“NZBOR”), Section 14 Broadcasting Act, Section 4(1): broadcasters are responsible for maintaining standards consistent with the privacy of the individual.
Case summary
Background: A well-known television personality, Mr. Hosking, asked the High Court of New Zealand to prevent a photographer and the publisher of a magazine from taking and publishing photographs of his children until they turned 18. The High Court ruled against Mr. Hosking, reasoning that there had been no invasion of privacy because the photographs were taken while the children were in a public place, and that people shouldn’t be able to sue about their privacy being invaded anyway. Mr. Hosking brought the case to the New Zealand Court of Appeal, where he argued that people should be able to sue when their privacy has been invaded.
Issue and resolution: Children’s right to privacy. The Court recognised that people in Zealand should be able to sue when their privacy has been invaded and noted the need to develop the common law consistently with New Zealand’s international law obligations to protect privacy as found in international treaties, including the CRC. In this case, however, the Court concluded that privacy had not been violated and the pictures could be published. The Court held that privacy should be protected only where: (1) the information was obtained where there was a reasonable expectation of privacy (for instance, in a family home); and (2) the publicising of that information would be highly offensive to a reasonable person. As such, the protection of children’s privacy is not absolute. Rather, these two criteria must be met before a child or their representative can bring a successful case on invasion of privacy into court.
Court reasoning: The Court noted that protection of an individual’s privacy must be balanced against other people’s right to freedom of speech. Even though children should be afforded special consideration due to their vulnerability, children’s privacy can only trump other people’s freedom of speech in limited circumstances. Therefore, children and their representatives can only bring lawsuits about invasion of privacy where the children have been placed in danger or (1) the information about the children was obtained where there was a reasonable expectation of privacy and (2) publicising it would be highly offensive to a reasonable person. The Court found this standard to be consistent with relevant provisions in CRC, which are only directed at preventing serious physical and mental abuse of children. In this case, the photographs of Mr. Hosking’s children were obtained in a public setting where there was no reasonable expectation of privacy and nothing about the photographs was highly offensive to a reasonable person. Furthermore, there was no evidence to suggest there was a serious risk to the children if the photographs were published.
Excerpt citing CRC and other relevant human rights [19] The Commissioner for Children submitted that the United Nations Convention on the Rights of the Child (UNCROC) should guide the disposition of cases like this. Children are end to recognition of the right to privacy set out in Article 16 of the Convention. The Commissioner advocated a test that recognises and upholds the privacy of children and protection of their identity, unless it is demonstrably and legitimately in the public interest, or the child’s own interest, to disclose the child’s identity. Again the Commissioner would be happy for a remedy to be granted either under a breach of confidence claim, or as a breach of the tort of privacy. … [114] Without addressing the complex question of the extent to which the courts are to give effect to the rights and freedoms affirmed in the Bill of Rights Act in disputes between private litigants, it could not be contended that limits imposed to give effect to rights declared in international conventions to which New Zealand is a party cannot be demonstrably justified in a free and democratic society. Those rights include the privacy rights in the International Covenant (art 17) and UNCROC (art 16). … [139] The United Nations Convention on the Rights of the Child (UNCROC), ratified by New Zealand and all but two United Nations member states, declares for children the same right of privacy as appears in the International Covenant. Article 16 states: 1 No child shall be subjected to arbitrary or unlawful interferences with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2 The child has the right to the protection of the law against such interference or attacks. The Convention states in art 3: 1 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. [140] Counsel for the Commissioner for Children presented submissions based on UNCROC and seeking protection against publicity (seemingly whether or not involving private facts) unless shown to be in the best interests of the child or demonstrably in the public interest. [141] Reliance was placed on the approach of the Broadcasting Standards Authority and upon the recently formulated Guidelines of the International Federation of Journalists which require similar special consideration of the position of children. The law has long recognised that. There are two clear recent examples. [142] In TV3 Network Services Ltd v ECPAT New Zealand Incorporated [2003] NZAR 501, Chambers J was concerned with a documentary aired by TV3 showing child prostitution in Fiji. Chambers J observed (at para [43]) that: TV3’s absolutist stance — that freedom of speech trumps all — is simply not right. A balancing of interests is required. The restriction on freedom of speech effected by the authority’s decision is minor when compared with the competing need for protection of children. [143] In Re an Unborn Child [2003] 1 NZLR 115, Heath J emphasised the need to give appropriate weight to New Zealand’s obligations under UNCROC. [144] It would be unrealistic and unnecessary to consider a legal prohibition against the publication of all photographs depicting children without parental consent. That would inhibit media coverage of, for example a children’s Christmas parade. [145] In the context of the protection of privacy, we consider that the criteria for protection, requiring private information in respect of which there is a reasonable expectation of privacy the publicising of which would be highly offensive, provide adequate flexibility to accommodate the special vulnerability of children. [146] We were invited to draw from provisions of UNCROC relating to the preservation of identity (art 8) and freedom from exploitation (arts 19, 32 and 36) the imperative to prevent the publication of the photographs in issue. But read in context, those provisions are directed at serious physical and mental abuse of children in situations we are not concerned with.
Notes: For commentary and more information on the case, see “Hosking v Runting balancing rights in a privacy tort” (http://www.austlii.edu.au/au/journals/PLPR/2004/28.html) and “Reverse Gear for NZ’s privacy tort: the Hosking decision” (http://www.austlii.edu.au/au/journals/PLPR/2004/28.html).
CRIN Comments: CRIN believes that this decision is somewhat consistent with Article 16 of the CRC. The CRC calls on governments to take proactive steps to protect children’s private lives, and CRIN believes that courts should assist children in preventing unwanted publicity. It is commendable that the Court in this case introduced a means for children to protect their private lives. However, it remains concerning that this remedy appears available only in very limited circumstances.
Citation: (2005) 1NZLR1; (2004) 7 HRNZ 301
Link to Full Judgment:http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZCA/2004/34.html?query=hosking