Features

With the recent furore around Darren Hughes’s sex scandal allegations, and now our very own Dan Stride, Sam McChesney decides to delve into the wild world of privacy law.


Privacy is an issue which has received increasing attention in recent years. In years gone by, individuals were largely seen as responsible for protecting their own privacy. Where privacy was protected by law, this was mainly in the context of either invasions of privacy by the state, or relationships involving trust and confidence. Now, however, increasingly sophisticated technologies have made it easier for media and private citizens to obtain and disseminate private information about other citizens, particularly over the internet.
 
What is privacy anyway?
The first legal definition of privacy was given by Judge Cooley in 1888, who described it as “the right to be left alone”. Legal scholar William Prosser expanded on this definition in 1960, arguing that there are four ways in which a person’s privacy may be violated. These four ways are identity theft, defamation, publication of personal information, and encroaching on an individual’s seclusion or solitude.

However, the second and third of these involve the exercise of free speech, itself a right of fundamental importance. Moreover, the third involves the disclosure of facts, and if something is true there is surely an inherent right to say it. If the private information in question discloses genuine wrongdoing, what right could a citizen have to keep it secret?

Why should we care?
There are two main reasons given for privacy to trump freedom of speech in such cases. The first is that civil society is essentially a collection of individuals, who agree on the terms of their coexistence through what is known as a social contract. Therefore, if people value their own privacy (and clearly they do), then it is sensible to safeguard privacy in this social contract. Every citizen should therefore be entitled to as much privacy as he or she is willing to grant others.
 
The second is that, while one of the main purposes of free speech is to foster creativity and protect unpopular opinions from the “tyranny of the majority”, too much free speech and not enough privacy are likely to have the reverse effect. If every action of a citizen is subject to public scrutiny, the citizen is far more likely to succumb to the norms of the majority. Free-thinking individuals would be suppressed, and social progress would evaporate. It would be just like an Ayn Rand book, but with believable characters. Furthermore, the line between conduct that is inherently wrong and conduct that is merely deemed wrong by contemporary society is always somewhat blurred. In any case, whether misdemeanours should be dealt with solely by an appropriate legal penalty, or with an added degree of public shame and opprobrium, is likely to vary on a case-by-case basis.

“Public figures”
The New Zealand Bill of Rights Act does not affirm a right to privacy. However, privacy is protected in law by the torts of defamation and wrongful publication (also known as invasion of privacy), and by the granting of name suppression and gag orders (a form of injunction).

Usually, a court will turn to prior restraint in the form of name suppression or gag orders only if the information in question is likely to be widely circulated. Accordingly, the most common recipients of these legal remedies are public figures, such as politicians and celebrities. Given the huge demand for information about their private lives, such figures require additional legal protection to protect their privacy. However, the practice of protecting information about public figures is widely controversial. Opponents argue that, by and large, public figures choose to seek a public profile, whether by running for office or otherwise courting fame in the media. Once they achieve this profile they must therefore accept that their actions will be subject to public scrutiny.

The problem with this argument is that for most politicians and celebrities, a public profile is simply a by-product of achieving success in their chosen career path. Hence, the notion that success entails a tacit consent to having one’s privacy invaded is something of a non-sequitur, and public figures are citizens who are still entitled to basic rights. Moreover, it is rather facetious to equate celebrity gossip with, say, transparency in a politician’s campaign financing. The notion of reasonable scrutiny of public figures may motivate one of these, but the other is clearly driven by prurient interests and sheer voyeurism.

It is also claimed that public figures act as moral figures and role models. Thus, if their private lives disclose some significant moral failing, the people are entitled to know. The weakness in this argument is that the role-model status of a public figure is constructed entirely on his or her public persona, so it’s unclear precisely what purpose is being served by publishing damaging revelations. For instance, Tiger Woods was an excellent role model before people found out about his sexual dalliances, precisely because those dalliances were private and not public. Now, not so much.

The global context
How much protection is given to privacy will usually depend in large part on the social context of the country in question. The UK has a powerful tabloid press, with a daily circulation in the millions. These tabloids are fuelled by a bizarre obsession with celebrity goings-on and a love of moral outrage, creating a massive demand for scandal against which judges have sought to provide protection, usually by invoking Article 8 of the European Convention on Human Rights (ECHR). This need has been illustrated by the recent revelation that reporters at News of the World illegally tapped the phones of as many as 7000 people, including members of the Royal family.
 
In continental Europe, more liberal attitudes towards sex, coupled with a fair dash of misogyny, make for a public and a press that are largely apathetic about scandal. In Italy, for example, it took allegations of the Prime Minister engaging in orgies with a score of child prostitutes before the media pricked up their ears. And if Dominique Strauss-Kahn beats his current rape charges, he will return to France as the favourite to become the next president.
 
The US situation is similar to that of the UK, but without crusading judges. Furthermore, the US Constitution protects freedom of speech but not privacy, so freedom of speech has trumped privacy in a great many cases. For instance, name suppression is very rare, and in the recent case of Snyder v. Phelps the Supreme Court held that the Westboro Baptist Church were entitled under the First Amendment to picket the funeral of a US soldier and scream abuse at his mourning family.
 
In New Zealand the economic forces which feed privacy breaches in the UK and US are largely absent. New Zealand has a general lack of tabloid media and fairly shit celebrities that nobody is particularly interested in. Hence, our relative lack of privacy law doesn’t have the same impact that it does in the UK and US. While New Zealand judges don’t have recourse to the ECHR as their UK counterparts do, they do have access to the tort of wrongful publication, and also make frequent use of name suppression.

Super-injunctions
Much debate in the UK lately has focused on the use of “super-injunctions”. Unlike regular injunctions, super-injunctions conceal not only the facts but also the identities of the parties to the injunction and the reasons for the injunction being sought. The purpose of a super-injunction is to more effectively protect the matter against the oxygen of publicity. A known celebrity obtaining an injunction to prevent the disclosure of unknown facts is still a reportable event. But if an unknown celebrity obtains an injunction to prevent the disclosure of unknown facts, this doesn’t give the media enough to work with. Often, the former can create enough media interest and speculation that the facts eventually leak out anyway, making a traditional injunction ineffective. Moreover, when a married celebrity takes out an injunction against a young, attractive model, it doesn’t take a genius to figure out why. Hence super-injunctions tend to be given predominantly in cases of sexual indiscretion, to the point that “super-injunction” in Britain is pretty much a coded signifier for “celebrity sex scandal”.
 
The public acceptance of super-injunctions reached a new nadir in the last few weeks. Following news that an unnamed Premier League footballer had obtained a super-injunction to cover up an extramarital affair with model Imogen Thomas, the footballer in question was identified by foreign media, bloggers and tens of thousands of Twitter users, effectively becoming an open secret. Eventually MP John Hemming, under Parliamentary privilege, identified the footballer as Ryan Giggs. Hemming, who had previously identified banker Sir Fred Goodwin as the subject of a super-injunction, questioned the effectiveness of a law that “clearly doesn’t have public consent”, and noted that with 75,000 Twitter users having identified Giggs in defiance of the injunction it was impractical to imprison them all.
 
The internet
The Ryan Giggs saga provides a striking case of law reform being sought through mass disobedience. However, a deeper problem is that the internet allows people to break privacy laws with impunity, symbolising less a change in social attitudes towards privacy than a form of anarchy. For an internet user to be bound by privacy laws they must a) be identifiable and b) inhabit the same jurisdiction. Hence users can easily protect themselves through pseudonymity or the use of online “data havens” like Wikileaks, which conceal the identity of its sources and inhabit no legal jurisdiction.

The internet has also massively increased the volume of data available to media consumers, making highly localised media cheaper, easier and more reactive. This has made it easier to exploit loopholes in privacy laws. The latest OUSA fiasco with Dan Stride and James Meager’s mydeology blog arose because Stride had not yet obtained name suppression as part of his diversion. Before the days of the internet, mainstream media would be unlikely to have picked up on the story before name suppression had been given. While Stride could potentially sue Meager under the wrongful publication tort, it’s unclear whether he would be successful.

The internet also provides a forum in which people voluntarily relax their privacy in exchange for other benefits, particularly over social networking sites. However, this can backfire spectacularly – for instance, the brilliantly-named US Congressman Anthony Weiner recently resigned after accidentally tweeting pictures of his, er, weiner, which he had meant to send to his secret mistress.

Is privacy a lost cause?
The internet provides a number of challenges for privacy. In particular, the traditional legal avenues for protecting privacy against mainstream media are largely ineffective over the internet. While there may be good reasons for a privacy right, just as there may be good reasons for intellectual property rights in music and film, if the ascent of the internet makes this impossible there is little point in clinging to it.

Nevertheless, it is easy to overstate this case. For instance, the existence of Ryan Giggs’ super-injunction only became public knowledge because Imogen Thomas had been named, which was out of the ordinary. And before Hemming’s intervention, a straw poll conducted by the Daily Mail indicated that less than half the population knew Giggs’ identity, despite the mainstream media having extensively covered the issue and repeatedly stated that his identity had been revealed on Twitter. This indicates that so long as people obtain most of their news from mainstream media, traditional legal remedies will remain effective. Cases like Dan Stride’s could be addressed by closing the legal loophole which allowed it to happen, and people like the unfortunate Herr Weiner could simply benefit from being less liberal with the dick pics.
 
Thanks to Erika Pearson of the Department of Media, Film and Communication for her assistance with this article.