Privacy and the Law
New Zealand Law Journal, 1975
11 Pages Posted: 8 Jan 2013 Last revised: 24 Feb 2015
Date Written: 1975
This paper was originally presented as a public lecture delivered to a Victoria University of Wellington Symposium on Computers, Records and Privacy. The increased amount of planning in our sort of society requires limitless quantities of data of all types and from many sources to be collected, to be instantly accessible to be used by the State for many different purposes. It is feared that police and other investigators will follow people around, snoop on them, tap their telephones, and employ electronic listening devices to monitor their conversations and compile secret dossiers. The natural reaction to such widespread invasions of privacy is to frame a law to protect privacy. There are indications that we in New Zealand would like to pass a privacy law or laws.
Privacy as a legal issue arrived in New Zealand by osmosis. Our present concern stems more from the avalanche of publication overseas than from any systematic and principled examination of our own condition. Many of the issues in privacy law involve questions of size and scale met with only in the “mass society”. New Zealand observance of the privacy value will flow from our way of life not our laws. Privacy as a concept is unmanageable and to a large extent unintelligible. As an ordering principle in the law privacy embraces so much that our law would have to be fundamentally restructured to accommodate it. To isolate one value like privacy and discuss it separately from other competing aims and values is fundamentally unsound, because all legislative and judicial decisions represent a balance between competing values and objectives.
The paper considers the different definitions of privacy and discusses the American tort of privacy including several important cases. No such principle of civil liability has developed in our law although many of the matters covered by the American tort are protected by other remedies. From the American experience with the tort of privacy a number of conclusions can be reached. The tort or torts have been unsatisfactory. The operation of the law has been unpredictable, the complications with freedom of expression have raised constitutional difficulties, and it cannot be said that the protection offered in the US is substantially better than New Zealand law. For these reasons we should avoid developing an independent common law tort of privacy although the Courts should be encouraged to be bold in their extension of existing heads of liability which could be expanded to protect a privacy value.
The paper then turns to an enumeration of areas where the privacy value may not have been taken into account sufficiently. It considers that there are three possible legislative approaches toward privacy. The first entails passing a general law encompassing all aspects of privacy for breach of which there would be criminal or civil sanctions or both. The second involves a wide-ranging implementation of privacy protection but at the same time keeps the matter within manageable bounds by restricting the law’s application to defined areas. The third approach, and the only one which the author supports, requires separate examination of privacy issues in particular areas with legislative measures designed to deal with specific problems rather than grant general rights.
Keywords: privacy, New Zealand, comparative law, tort reform
JEL Classification: K13
Suggested Citation: Suggested Citation