Abandoning The 'High Offensiveness' Privacy Test

• Author: N.A. Moreham
• Position: Reader in Law, Victoria University of Wellington
• Pages: 161-191

Abandoning e “High

Oensiveness” Privacy Test

N.A. Moreham*

is article argues that the New Zealand torts of giving publicity to private

information and intruding upon solitude and seclusion would better reect the true

nature of the privacy interest if the requirement that any alleged privacy interference

be “highly oensive to an objective reasonable person” were abandoned. Courts should,

instead, determine what is prima facie private by reference to the plainti ’s “reasonable

expectation of privacy” in respect of the information or activity in question. ere are

three main reasons for this: rst, the high oensiveness test operates in a manner which

is both uncertain and unpredictable; second, New Zealand courts applying the high

oensiveness test have taken too narrow a view of the nature of privacy harms; and

third, the test is unnecessary.

* Reader in Law, Victoria University of Wellington. I would like to thank

Marcin Betkier, Victoria University of Wellington, for his careful copy-

editing assistance. I take full responsibility for all content.

162

Moreham, Abandoning the “High Of‌fensiveness” Privacy Test

I. I

II. T H O T  N Z L

III. D A  H O T

IV. W  H O T S B A

A. Lack of Principle in the Application of the High Of‌fensiveness Test

B. Taking Too Narrow a View of Privacy Harms

C. e High Of‌fensiveness Test is Unnecessary

V. C

I. Introduction

The common law protection of privacy in the Anglo-Commonwealth

has blossomed in the last f‌ifteen years. New Zealand and Ontario

have recognised torts both of giving publicity to private facts and of

intrusion into solitude and seclusion and in England and Wales, the tort

of misuse of private information has emerged from within the breach of

conf‌idence. Two main approaches to ascertaining what is private have

emerged from these developments. On the one hand, courts applying

the English misuse of private information tort focus on the plaintif‌f’s

reasonable expectations of privacy (which in turn determine whether the

plaintif‌f’s right to respect for private life under Article 8 of the European

Convention on Human Rights1 is “engaged”) and on any competing

public interest in the material. On the other hand, there is the more

complex Ontarian and New Zealand approach of asking not just whether

the information or activity is private — which is usually determined

by reference to reasonable expectations of privacy — but also whether

the intrusion or publicity in question would be highly of‌fensive to an

objective reasonable person.

is article will argue that the f‌irst of these approaches — determining

what is private by reference to reasonable expectations of privacy — is

better. It does so by highlighting the many shortcomings of the operation

1. Convention for the Protection of Human Rights and Fundamental Freedoms,

4 November 1950, 213 UNTS 221 art 8 (entered into force 3 September

1953).