False Privacy: the New Zealand Tort of Invasion of Privacy and False Publications

Abstract

This paper started with a simple question: does the tort of invasion of privacy recognise a cause of action in relation to false statements? The answer is unfortunately slightly more nuanced: whether it presently does is unclear, but it could, and arguably should. This is for several reasons. Jurisprudentially, false privacy is not inconsistent with existing case law on the “reasonable expectation of privacy test”. Doctrinally, the subject-matter of the complaint is capable of infringing the core interests the tort protects (dignity and personal autonomy). From a policy perspective, the concept would not encourage the subversion of the related tort of defamation to any meaningful extent, and it would be a preferable development to recognising an independent tort of false light. Accordingly, it ought to be recognised. In answering this particular question, however, this paper has provoked several more. A future court faced with the substantive issue of false privacy, for example, may have to determine that complaint in the context of an application for prior restraint. This would raise the issue of whether the rule in Bonnard v Perryman or a lower threshold test should govern. If a lower threshold test were accepted, this would also raise the issue of whether the “nub” principle applied in the English action might be applied, to eliminate the risk this development would subvert the law of defamation. Also of interest is whether the “nub” principle, as applied in New Zealand negligent misstatement and English privacy cases, will be applied beyond these contexts (both of which involved incursions on defamation) to regulate the interrelationship between other closely related torts. The author hopes this paper has provided a useful spark for these discussions.