[1] C was an occupant in a house owned by her boyfriend and Mr Holland. Mr Holland surreptitiously installed a recording device in the roof cavity above the shower and toilet. He videoed C while she was showering. C discovered the videos and was deeply distressed. She has commenced an action against Mr Holland based on invasion of privacy. Mr Holland accepts that he invaded C’s privacy. The critical issue I must determine is whether invasion of privacy of this type, without publicity or the prospect of publicity, is an actionable tort in New Zealand.

Facts

[2] The facts are agreed.

1. The plaintiff is 25 years of age.

2. The defendant is 27 years of age and employed as a builder.

C V HOLLAND HC CHCH CIV 2011-409-002118 [24 August 2012]

3.In June 2008 the defendant and the plaintiff’s boyfriend, Mr Z, purchased a 5 bedroom house located at […], where they both resided.

4.For a period of some 2 years, the plaintiff would stay at the property approximately 4 nights per week before moving in with Mr Z in July
2010.

5. On a single occasion, in the period between 27 December 2010 and
9 January 2011 the defendant used a handheld digital camera and recorded 2 video clips of the plaintiff in the bathroom.

6.Each of the videos show the plaintiff both partially dressed and completely naked with clear view of her front (pubic area and breasts) and back. The first shows her undressing and tending to her bikini line, entering the shower, showering and exiting to retrieve items. The second shows her exiting the shower and dressing before she exits the bathroom.

7.The defendant took the video clips from the roof cavity above the bathroom within the ceiling area. The roof cavity is a storage area directly accessible as part of the second story of the property.

8. Video 1 runs for a time of approximately 1 minute 15 seconds, Video
2 runs for a length of 2 minutes 31 seconds.

9.The defendant downloaded the 2 video clips onto his external hard drive.

10. On Sunday 16 January 2011 the plaintiff and Mr Z were at the property with friends and wanted to watch some movies off the defendant’s laptop. He gave them permission to use his laptop for the movies that he had stored on it.

11. While the plaintiff and Mr Z were searching for the movies, Mr Z located a link to one of the defendant’s recently viewed files titled “[…]” being the plaintiff’s nickname.

12.The following day Mr Z asked the defendant if he could use…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading C v Holland

Details

AGLC: C v Holland [2012] NZHC 2155
Case: [2012] NZHC 2155
Decision Date: 24 August 2012

CaseChat Overview and Summary

- Parties: C and Holland
- Nature of the dispute: C is suing Holland for invasion of privacy
- Court: High Court of New Zealand
The central issue in the case was whether a tort of intrusion upon seclusion should be recognised in New Zealand law. The court found that while privacy is a value worth protecting, it may not be amenable to rules of law or transformed into an actionable claim. However, the court held that the transformation of aspects of privacy into rights and unwanted intrusion into a wrong was already underway in New Zealand. The court also noted that freedom from intrusion into personal affairs was a recognised value in New Zealand, underlying existing rules that regulate intrusion into personal affairs as both a civil and criminal wrong. The court concluded that it was functionally appropriate for the common law to establish a tort equivalent to the North American tort of intrusion upon seclusion. The court outlined the elements of the tort, including intentional and unauthorised intrusion, intrusion into seclusion, infringement of a reasonable expectation of privacy, and offensiveness to a reasonable person. The court held that Holland's actions constituted a tort of intrusion upon seclusion and that he was liable for the intrusion. Costs were reserved pending the hearing on damages. The court also suppressed all details that might identify the plaintiff to protect her privacy.

Orders