"I've never seen anything which so clearly demonstrates the nature of the work. But while some see them as a powerful essay on the job, others are offended by the sight of a elderly, frail and ulcerated body – it is quite shocking.” (The Press, 16 May 2006)
The recently distributed images of three partially naked elderly citizens has generated varied responses from the New Zealand public. There is no doubt the images have effectively conveyed the central message: That nurses and caregivers have a demanding and time consuming job. But has this been proven at the expense of the privacy of these elderly individuals?
An individual’s right to privacy is primarily found in the Privacy Act 1993. However, the Act can be complex and its application unclear in some settings.
The general rule is that anyone collecting personal information about a person (including a photograph) will be covered by the Privacy Act. Certain ‘disclosures’ need to be given to clients at the time when personal information is collected.
‘Information’, including (when appropriate) a photograph, cannot be disclosed to anyone outside the collecting agency or used for any other purpose than that disclosed at the time of collection.
It is the role of the Privacy Commissioner to receive written complaints from the public outlining potential breaches of privacy. The Act enables the Commissioner to either disregard or investigate the complaint and assess whether the grounds amount to a of breach privacy.
An action for breach of privacy may be brought by the Commissioner where a breach has occurred and that breach has caused;
(a) Loss, detriment, damage or injury to the complainant; or
(b) The rights, benefits, privileges, obligations of the complainant to be adversely affected, or may do so; or
(c) Significant humiliation, loss of dignity or injury to the complainants feelings, or may do so.
For example, a complaint was made in March 2006 after a man was photographed, by a professional photographer, in a shopping mall and later saw two photographs of himself in a business directory, promoting the mall. The Privacy commissioner treated the photographs as personal information. However, the complainant fell short of proving a breach of privacy, as he was unable to show he had suffered any adverse effects as a result of the information being published.
Exercising the right to Privacy in New Zealand
In the 2004 case of Hosking v Runting, the New Zealand Court of Appeal confirmed the existence of the tort of breach of privacy. For a claim for interference with privacy to be successfully brought, it must be shown that:
>In the particular circumstances, there is a reasonable expectation of privacy; and
> Those circumstances are publicised in a manner that would be considered highly offensive to an objectively reasonable person.
Legitimate Public Concern
The Courts have recognised a possible defence for breach of privacy (both statute and tort based). If publication is justified by a legitimate public concern for the information, the photographer will be justified in releasing the images to the public. However, the court clearly distinguishes between “interest or curiosity to the public” and information or images of “legitimate public concern”.
An example where this defence was asserted involved information regarding a public figure being treated for psychiatric problems. The accused, having released this information to the public, sought protection from the charge of breach of privacy under this defence. The Court recognised that had the psychiatric problems impaired the judgement of the public figure in performing public duties, the information would have been of legitimate public concern. In this case, however, the information was of no concern to the public, as there was no evidence of these problems affecting the capacity of the applicant to fulfil his duties.
The right to privacy in New Zealand is an inherent right incorporated in many statutes and common law doctrines. It is important, not only as a photographer, but as a trusted custodian of personal information and images, to understand the implications of releasing personal information into the public realm.
If an individual considers that their personal reputation has been misappropriated in some way, there may also be other routes open, such as the tort of “passing off”.
James Carnie & Gabrielle Lourens
Clendons
Clendons is an Auckland based law firm, specialising in copyright and intellectual property issues. The firm is a sponsor and representative of various New Zealand visual arts organisations including AIPA, NZIPP and DINZ.
