Television New Zealand Ltd v Rogers CA12/06

Television New Zealand Limited (TVNZ) appealed against a Full Court decision of the High Court which permanently restrained it from broadcasting a videotape which depicted Noel Clement Rogers participating in a reconstruction of his alleged killing of Katherine Sheffield. The videotape was made by the police in the course of their investigation and was intended to be used as evidence at Mr Rogers’ murder trial. However, the Court of Appeal had previously ruled the videotape inadmissible because it had been obtained in breach of Mr Rogers’ rights to silence and counsel. The High Court held that, if the videotape was broadcast, it would give rise to an unlawful interference with Mr Rogers’ privacy, as the tort was recognised and defined in Hosking v Runting [2005] 1 NZLR 1 (CA). The essential issue, therefore, concerned where the line was to be drawn between open justice and personal privacy. The Court of Appeal allowed the appeal and set aside the orders made against TVNZ. The Court held that the defence of legitimate public concern was available in this instance and that injunctive restraint of the current affairs broadcast was not appropriate. The Court was satisfied that the Full Court had correctly concluded that the videotape contained private facts in respect of which there was a reasonable expectation of privacy. However, the Court did not accept that the Full Court had correctly concluded that publication of the videotape would be considered highly offensive to an objective, reasonable person. The Court held that the Full Court was wrong to conclude that the principles of legitimate public concern did not apply in this case. The Court held that the Full Court had erred in concluding that the threshold for prior restraint had been met. The Court held that there was no basis for an order to direct TVNZ to deliver up to the Court all copies of the videotape.