Slater v APN New Zealand Limited no.2

[2014] NZHC 2157

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2272 [2014] NZHC 2157

BETWEEN

CAMERON JOHN SLATER

Plaintiff

AND

APN NEW ZEALAND LIMITED First Defendant

FAIRFAX NEW ZEALAND LIMITED Second Defendant

MEDIAWORKS TV LIMITED Third Defendant

UNKNOWN DEFENDANTS Fourth Defendant

Hearing:

5 September 2014

Counsel:

JR Billington QC and A Steel for Plaintiff

JG Miles QC, AL Ringwood and C Bradley for First, Second and Third Defendants

Judgment:

5 September 2014

Reasons:

8 September 2014

JUDGMENT (No 2) OF FOGARTY J

This judgment was delivered by me on 8 September 2014 at 4.30 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Grove Darlow, Auckland  [email protected] Bell Gully, Auckland  [email protected] Izard Weston [email protected]

MediaWorks New Zealand Ltd, Auckland  [email protected]

Copies to:           JR Billington QC  [email protected]

JG Miles QC  [email protected]

SLATER v APN NEW ZEALAND LTD [2014] NZHC 2157 [5 September 2014]

Introduction

[1]      This  judgment  explains  the  reasons  for  my decision  to  grant  an  interim decision against the fourth defendant on 5 September 2014.

[2]      The cause of action against the hacker, whoever that person or persons are, is simple.  The hacker gained access to the information held on the plaintiff’s computer by guessing the password and took copies of information stored on the plaintiff’s personal computer, his emails and social media accounts.

[3]      The  plaintiff  is  coming  to  the  Court  for  common  law  remedies.    That common law analysis is different from the offence created by s 249 of the Crimes Act 1961.  It is important not to equate statutory remedies for such conduct with the common  law.    The  common  law,  including  the  remedies  provided  by  equity, functions at a level of principle and can adapt readily, without the need for any statute, to changes in technology, to identify traditional wrongs or torts as they are known to the law.

[4]      There is no doubt at all that the plaintiff has a serious argument that the unknown hacker has committed a wrong or tort against him, to which the common law will grant such remedies as can be practicably imposed.  The causes of action in the pleadings were pleaded as breach of confidence and as a breach of privacy.  The common law can treat such unauthorised access to information, and its cloning as the same as entering private property and taking a person’s private papers.1

[5]      In a fast-changing technological world, it is not necessary to fit the tort or wrong into either category.   Standing back, these torts are ultimately designed to preserve personal dignity, privacy, and the freedom of lawful conduct.  To my mind, these torts appeal to values which underpin the most ancient remedy of trespass, be it trespass to the person or trespass to property.

[6]      As the recent judgment of Whata J in C v Holland2  has shown, the Courts will respond to novel facts of unwanted invasions into a person’s privacy or taking

1      Entick v Carrington (1765) 19 St Tr 1029.

2      C v Holland [2012] NZHC 2155.

advantage of a trusted relationship with a person to again abuse that confidence and damage the person’s dignity, directly or by misuse of information relating to that person’s private life, be it personal or business.

[7]      The second question to examine then, before any interim relief can be given, is the balance of convenience.   This is an examination as to whether or not the circumstances justify the making of court orders pending final determination of whether or not there has been a breach of a tort entitling the plaintiff to a final judgment and to remedies.

[8]      The   case   for   injunction   against   the   hacker   on   an   interim   basis   is overwhelming.  The common law knows no justification for breaking the law.  There is, however, a distinction between illegal conduct to obtain information which is released into the community, and subsequent orders by the courts as to the use of that information once it is in wider circulation.  In the latter case, the courts balance the breach of law in the acquisition of the information, against the public interest in examining the information once it is in the public sphere.

[9]      The  difficulties  with  this  case  are  to  address  what,  if  any,  remedies  the plaintiff has in respect of information now in the public sphere.   But there is no difficulty in making an interim order restraining the hacker from committing further wrongs by releasing information, which very likely was obtained illegally, further into the community.