Privacy and publicity : restraining abuses of power in New Zealand

Abstract

In this thesis, the author argues that, contrary to common belief, privacy is both legally definable and generally compatible with freedom of speech. In particular, the two concepts can both operate to restrain abuses of power in New Zealand society. One facet of that, however, is that the unrestrained operation of either privacy protection or media freedom could in itself amount to an abuse of power. Each therefore can act as a check on the potential misuse of the other; neither personal demands for privacy nor media demands for publicity should go unchallenged. Given this, it is most fruitful to concentrate the debate on which processes are most appropriate to recognise both interests fully and achieve a constitutionally healthy balance between them. The resolution options considered here are those available under the common law, the possibility of a statutory tort, governance by a state-funded complaints agency, and governance through a self regulatory system. The author's conclusion is that, while it is theoretically possible to define a privacy tort which can also adequately cater for media freedom, the common law will not, in practice, produce the necessary measure of certainty either for plaintiffs or defendants. If tort intervention is required, that tort should be created by statute in order Co clarify (as much as possible) the scope of protection, the availability of defences and the appropriateness of particular remedies. However, even then, the author has serious concerns over the accessibility of court-based dispute resolution for privacy plaintiffs. She concludes that management of conflict between privacy and publicity is best left to an expanded self-regulatory system, possibly in the form of an industry-funded Media Ombudsman scheme.