Invasion of privacy: publication of facts

For there to be a breach of privacy in New Zealand which is able to be taken to Court there are a number of factors that need to be present. For an invasion of privacy where there has been a publication, there are two key factors:

  1.     There is a private fact which has a reasonable expectation of privacy; and
  2.     There is a publication of the private fact which is highly offensive to the objective reasonable person.

There are many private facts which may have a reasonable expectation of privacy. Common facts which are private are your medical records and health information, your finances and your sexual orientation, but there are many more which are likely to meet the threshold.

These factors can be heightened for people in vulnerable positions, such as children. The threshold for private facts can also be lowered for people that are public figures, as they will generally have a lower expectation of privacy.

The private fact must be published in order for this invasion of privacy claim to succeed. That publication must also be “highly offensive to the objective reasonable person”. This means that your personal sensitivities are irrelevant, as the breach will be looked at from an objective standpoint.

The publication must also cause real hurt or harm, which may include publication which is truly humiliating or distressful. However, this “highly offensive” threshold can be a difficult one to meet. There have been a limited number of cases in New Zealand which have managed to meet this threshold, showcasing how difficult breaches of privacy can be to establish.

Invasion of privacy: Intrusion into seclusion

An invasion of privacy by way of intrusion into seclusion is slightly different to the original tort of invasion of privacy, but in a very important way. The private fact does not need to be published.

The elements which must be satisfied are:

  1. There is an intentional and unauthorised intrusion;
  2. The intrusion is into intimate personal space, activity or affairs;
  3. It involves infringement of a reasonable expectation of privacy; and
  4. It is highly offensive to a reasonable person.

In the leading case (decided in 2012), a man installed a hidden camera in the bathroom of a house he shared with others. The camera took intimate recordings.

However, because the man did not publish or make the pictures publically available, there were no laws in New Zealand at the time that said what he did was wrong. The Court, however, decided that he had breached a right to privacy. This has been supported by other cases since, and is now known as the tort of intrusion into seclusion.

Public interest defence

For a breach of privacy under either of these torts, there is a defence of legitimate public interest. If the breach is proven, the defendant can argue that there was legitimate public interest in the recording of the information. This goes beyond where there is simply public curiosity.

To determine whether there is a public interest, courts must perform a balancing test, weighing up the harm done by the invasion of privacy against the legitimate public concern of the information.

If there are concerns about recordings or other information that has been collected, and whether the collection is an invasion of your privacy, it is wise to speak with a professional experienced in the area.


Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Alan Knowsley and Hunter Flanagan-Connors