New Zealand and Australia do not have the excesses of the tabloid press and paparazzi photographers that exist in the UK, chair of the IBA Media Committee and panellist Peter Bartlett told his audience, so there is not the same need for strict privacy laws here.

Although specific areas where privacy protection is required include the identification of the victims of sexual assault, protecting child witnesses in court, and taking mobile telephones with cameras into certain areas, Barlett said no standalone tort of privacy is necessary.

Recent high-profile European cases such as those brought by Princess Caroline in Germany (Von Hannover v Germany (2004)) and Naomi Campbell in the UK (Campbell v Mirror Group Newspapers)are likely to cool the excesses of the media, Bartlett said, and this effect will inevitably translate to Australia and NZ.

Campbell took action against The Mirror newspaper for publishing information and photographs about her drug addiction and treatment at Narcotics Anonymous. The House of Lords, in Campbell, did not create an independent right to privacy, it extended the existing cause of action for breach of confidence.

In Von Hannover, Princess Caroline took action over a series of photographs taken in France and published in Germany of her everyday life including picking her children up from school, playing sport, and shopping at a market. The European Court found that these amounted to a breach of privacy under Article 8 of the European Convention on Human Rights, even though the events occurred in public.

The leading NZ case of Hosking v Runting & Ors does not go as far as Von Hannover, it was heard. Hosking did, however, recognise a right of privacy beyond that accepted in Australia, Bartlett said. This is a right of action for invasion of privacy by publication of private facts where the publicity is highly offensive to the reasonable person.

Australian courts have said that there is no tort of privacy in Australia, but the Hosking case recognised that there is a tort of invasion of privacy in NZ. Bartlett said NZ has overtaken Australia in acceptance of privacy rights. Australia relies on traditional heads of claim: breach of confidentiality, defamation, trespass and nuisance.

There are eight separate sets of defamation laws in Australia, and moves are afoot to introduce uniformity. The changes proposed include requiring the defendant to prove that the defamatory subject matter published was not only true, but also that publication was in the public interest. Bartlett said the aim is to introduce a privacy component to defamation rather than introduce a separate tort of privacy.

Australian courts will look closely at Hosking in future, together with Von Hannover and Campbell, Bartlett said, to see whether any refinement of the existing common law is required. He did not think Australian courts would follow Hosking by recognising a tort of invasion of privacy.

According to Bartlett, “the courts should be drawing the line and saying ‘that particular example exceeds the limit of propriety,’ but it can do that relying on breach of confidentiality or nuisance or defamation; it doesn’t need to create a new tort that can open the floodgates to a whole range of incidences that would take the line too far”.

Andrea Ruffell is the Editor of Lawyers Weekly’s sister publication NZ Lawyer