Other relevant statute is then briefly reviewed.
Privacy torts
The confirmation of the existence of the privacy torts is a relatively new development in New Zealand law. Wrongful publication of private facts was confirmed as a tort by the Court of Appeal in Hosking v Runting [2004] NZCA 34. The elements of this tort are:
1. The existence of facts in respect of which there is a reasonable expectation of privacy; and
2. Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.
The tort of intrusion on seclusion was found to be part of New Zealand law in the High Court in C v Holland [2012] NZHC 2155. Justice Whata held that the following four elements must be satisfied:
(a) An intentional and unauthorised intrusion;
(b) into seclusion (namely intimate personal activity, space or affairs);
(c) involving infringement of a reasonable expectation of privacy;
(d) that is highly offensive to a reasonable person.
What might be considered the key distinguishing factor between wrongful publication and intrusion on seclusion is that publication is not required for the latter tort. This may be particularly relevant when imagery is collected for the private use of a drone operator without necessarily an intention to publish the imagery.
Some commentators have questioned whether the tort of intrusion on seclusion is too tightly formulated. For example, Anderson (2012) notes Justice Whata’s acceptance of there being ‘no right to limit views from public places or from other private property’, which potentially allows surveillance and photography from afar.
The ‘highly offensive’ test
Both privacy torts require the violation of privacy to be ‘highly offensive’. In C v Holland the intrusion involved covert filming of a woman in the shower, so easily met the threshold of the ‘highly offensive’ test. In Hosking v Runting the action in contention was the publication of a photograph of 18-month-old twins, taken in a public place, and this did not meet the threshold. A drone filming a person sunbathing naked in their backyard might be considered an analogous situation to that in C v Holland and therefore likely to meet the threshold. Imagery of dead or injured persons at the scene of a traffic accident or shooting may also meet the threshold.
Moreham (2008) argues that the ‘highly offensive’ test is unnecessary, noting that English law avoids the use of that test by relying on the ‘reasonable expectation of privacy’ test. The ‘highly offensive’ test is, he argues, also unpredictable and creates uncertainty. There is no easy formula to apply, with the only guidance being that the disclosure must be highly offensive to a reasonable person of ordinary sensibilities. It is unclear whether the filming of ordinary activities such as gardening or children playing games in a backyard where there is a reasonable expectation of privacy would be considered highly offensive, even if the individuals involved experienced considerable anxiety at potentially being observed.
There is considerable uncertainty over whether the privacy torts provide any effective cause of action against privacy violations by drone. The cost of bringing a claim is high, with the claimant also facing the costs of the defendant if the claim is not successful. Given the uncertainties over success, the potentially high costs will act to deter claims and effectively allow tortious conduct to continue. In such a situation, regulation is favoured over tort (Shavell, 1984).
Privacy Act 1993
The primary regulatory instrument governing privacy in New Zealand is the Privacy Act 1993, which governs the collection, use and disclosure of personal information. The Privacy Act requires an ‘agency’ to comply with a set of 12 broad ‘information privacy principles’. An agency is ‘any person or body of persons, whether corporate or unincorporate,
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