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Pike River privacy III
By Steven | December 7, 2010
In an earlier post, I wondered whether Dr Nicole Moreham was right to say that the grieving relatives at Pike River, caught on camera shortly after being told that all 29 miners were certainly dead, could successfully sue for invasion of privacy. Here’s her reply:
Thanks, Steven. I am glad that you agree that there was no public interest in the images of grief-stricken mining families and that, in at least some cases, publication of them was offensive. Just a couple of thoughts in reply to your points about whether the relatives would be able to satisfy the first requirement of Gault P and Blanchard J’s formulation of the Hosking tort. That requirement is, “The existence of facts in respect of which there is a reasonable expectation of privacy”. I would be surprised if future courts were to interpret this requirement in the narrow manner you suggest for the following reasons:
1. ‘Fact’ does not appear to have the narrow meaning that you give to it. The facts conveyed in the Pike River photos are most likely to be interpreted to be what the grief-stricken family members looked like immediately after they were told of the second explosion. That is the approach that the courts have consistently taken when the reasonable expectation of privacy test (or the English equivalent) is applied to photographs. For example, in Douglas v Hello! the English Court of Appeal said that the ‘information’ contained in unauthorised photos of a wedding were what the event and the couple looked like; not the fact that the event had taken place. (I don’t see any material difference between the word ‘facts’ and ‘information’ for this purpose.) It is also, implicitly, the approach that Abbot DCJ took in L v G when he held that it was a breach of the claimant’s reasonable expectation of privacy to publish photographs of her genitalia (even though she was not identifiable as the person in the photo). The ‘fact’ in that case must have been what her genitalia looked like; otherwise the case doesn’t make any sense. If all this involves a strained use of the word ‘fact’, then we should rely on Tipping J’s preferable formulation in Hosking which refers ‘information or material’ in which the claimant has a reasonable expectation of privacy.
If the courts were not prepared to take read ‘facts’ in this way then the action would not cover situations where publication of a photograph is offensive because of the intimate nature of what is shown. I do not believe that the courts would read the action so restrictively. Take a journalist who publishes a photograph of a celebrity reliving herself under a tree on a tramp. If I understand your analysis correctly (and leaving aside, for a moment, the remoteness issue which is not relevant to this part of the analysis) that would not be a breach of the first limb of the Hosking tort because the only ‘fact’ it would convey is the fact that the celebrity went to the loo behind a tree. There is nothing particularly private about that fact; people do it all the time. Instinct rebels against that conclusion. The photograph communicates so much more than the verbal description of that act. This is an archetypal breach of privacy situation and I cannot believe that courts did not intend the new privacy action to extend to it.
2. The reasoning in Peck also supports the point in 1. It is not clear from the decision whether the television commentary actually revealed that the claimant was trying to commit suicide in the footage shown. If it didn’t then the European Court’s objection couldn’t simply have been to the broadcaster’s communication of the fact in that Peck had tried to commit suicide. On the contrary, all of the Court’s language revolved around the distress that Peck was suffering when the footage was obtained. It was the intrusion into that distress which was held to be humiliating and offensive. The majority in Hosking expressly said that ‘cases such as Peck’ qualify to some extent the rule that there is no right to privacy when photographed on a public street. To my mind, that exception would include the families of the miners as they emerged from that meeting.
3. On a more specific point, I don’t think any store can be put in the fact that the miners’ families knew that the media were present outside the meeting and, in some cases, did not try to hide from them. This is because (a) the footage suggests that there was nowhere for them to go; and (b) they had other more important things on their minds.
4. Finally, I think the restrictive approach you are wondering about here would go against the tide in the privacy jurisprudence. Different countries use different tests and actions to achieve privacy protection but the legal direction is definitely in favour of more privacy protection rather than less. A balance has to be struck between these increased protections and freedom of expression but it don’t think the media could seriously argue that liability for publishing gratuitous pictures of grief would prevent them from informing the public about disasters like Pike River in the future.
Let me, in turn, respond to this. I’m inclined to think that you are underplaying the many indications in Hosking that the judges were very concerned to set the legal threshold for establishing privacy at a fairly high level; that they were wary of allowing it in public places; and that they were seeking some demonstrable harm in those situations. You’re also omitting the fact that the British and European cases stem from a human rights framework that specifically protects privacy; as you know, our Bill of Rights doesn’t, though it does protect freedom of expression. Yes, the international tide is in favour of more privacy not less, but the underlying balance is different here.
Of course, photographs may contain private facts. What someone looks like nude, or when they’re peeing, would be good examples. But if someone streaks or pees openly in public, what they looked like when they did so is no longer private. When Jerry Collins whizzed into a bucket in the middle of Westpac stadium shortly before an All Black game, that was published on the front page of the newspaper. I don’t think either of us think he was entitled to any legal protection.
The photo of the genetalia in L v G also falls into the category of photograph-as-private-fact. But just because what her genetalia looks like is a private fact does not mean that every photograph contains private facts. Pictures of emotional relatives in a public street are distinguishable on several bases: they are in a public place, the disclosure of their images is arguably less offensive; and presumably they could have chosen to remain inside for another half an hour.
Still, I’m not saying you’re wrong. I’m saying that I don’t believe the position is as clear as you think it is.
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