Towards A Singular Tort Of Privacy: Are The Justifications For Separate Privacy Torts Evaporating?

Abstract

The New Zealand common law has been hesitant to recognise the multifaceted nature of modern privacy invasions. In an attempt to maintain certainty and conceptual clarity, the courts have developed two privacy actions. These torts protect distinct types of wrongful conduct and different privacy interests, despite sharing almost identical analytical requirements. However, the categorisation of privacy actions seems increasingly artificial when scrutinised against their purpose. In practice, both informational and physical privacy interests may be relevant to a singular claim. Furthermore, in light of recent developments to the publicity requirement, the wrongful conduct distinguishing between the actions have brought the torts to near alignment. Privacy interests should instead beseen on a spectrum, whereby all aspects of a plaintiff’s claim are treated with fluidity. This paper argues the existence of separate torts is not only illogical and prevents fluidity, butwill inhibit the common law from recognising the complexity of emerging privacy threats. If the privacy framework is to adapt to the modern world, discussions of a singular tort ought to be re-ignited. This paper examines where courts are already embracing a normatively loaded action, and how the analytical tools currently deployed by courts to contain the torts can be transferred to a singular tort. By configuring these analytical tools, a singular tort can re-invigorate the privacy framework without the accompanying fears ofan amorphous action initially feared.