Browsing by Author "Howes, Jennifer Anne"

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Is Facebook the End of Privacy?: the Threat to New Zealand's Tort of Privacy Posed by Social Networking Sites
(Te Herenga Waka—Victoria University of Wellington, 2010) Howes, Jennifer Anne
Technology is constantly presenting new threats to individual privacy. The Internet provides a method of communication unhampered by international borders. Various courts in France, the United States, Australia and New Zealand have set tests for jurisdiction in cases involving the Internet. However the emergence of Internet-based social networking sites in the 21st century has provided new methods of both publicising and accessing personal information that people regard as private. The popular social networking site ‘Facebook’ allows members to upload photographs without a person’s consent. This presents a new level of privacy invasion, which will undoubtedly be litigated before courts. The current New Zealand tort of privacy is relatively new. The Law Commission has suggested it be left to development by the courts rather than codify it. However it is unclear how courts will apply it to claims involving the Internet and social networking sites. Over 700 billion minutes are spent on Facebook per month worldwide, but many members are unaware of how public their private information is. Foreign countries such as Germany and the United States are currently considering legislation to protect the digital privacy interest of Internet users. Enforcement issues against foreign Internet website companies will exist. However negative publicity has led to compliance with foreign court orders in overseas Internet-related cases. Privacy is an inalienable and fundamental human right, which requires additional protection from the ever-present invasiveness of the Internet. Legislative attention must be given to address the Internet and ensure that social networking sites are less careless with the privacy rights of individual members.
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Secret Super-Injunctions: Are They Suited to the New Zealand Legal System?
(Te Herenga Waka—Victoria University of Wellington, 2011) Howes, Jennifer Anne
Super-injunctions prohibit the publication of private information and the existence of the injunction proceedings themselves. Following the unsuccessful application by John Terry in LNS v Persons Unknown, the media in the United Kingdom was in a frenzied panic. Allegations of secret justice and judicial censorship of the press were aplenty. While they have not been directly addressed in New Zealand, judges may be inclined to introduce super-injunctions as a remedy for invasions of privacy. I insist that super-injunctions are undesirable. They severely restrict the right to freedom of expression and principle of open justice – both fundamental constitutional values. I explore arguments advanced by Samuel Warren, Louis Brandeis and Ruth Gavison in favour of privacy, and Alexander Meiklejohn and Thomas Emerson in favour of freedom of expression, followed by two justifications for open justice: the search for truth and judicial accountability. I consider the torts protecting privacy in the United Kingdom and New Zealand and question whether super-injunctions align with the importance that the New Zealand legal environment accords to these values. I conclude that super-injunctions unjustifiably derogate from open justice and freedom of expression. Although privacy is an important dignitary human right, it is not absolute. A balance must be struck between competing rights in liberal democracies. Freedom of expression and open justice should only be derogated from in exceptional circumstances. Super-injunctions are not suited to New Zealand, principally due to the deliberate exclusion of the right to privacy from the New Zealand Bill of Rights Act 1990. I advocate that existing remedies and various complaints procedures provide sufficient protection.