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Sharing images and not caring Charles Mabbett
3 February 2015

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We can all be paparazzi now but that doesn’t mean we should be. That’s no consolation at all to two office workers who were photographed and filmed having sex in a Christchurch office by nearby bar patrons. 

While the pair might have assumed privacy after hours in their place of work, their actions have since been shown to be unwise given people outside their building were afforded a clear view through the illuminated office windows.

But do they have any legal recourse against those who posted those images on Facebook and Twitter? Once information is posted on Facebook or other social media websites, it is publicly available. While we can ask an agency to remove the offending material, we cannot compel it. We also cannot control how that information will be copied or distributed once it has been posted.

Although publishing images like these is likely to be hurtful to anyone who finds themselves in a similar situation, it would be premature of us to come to such a conclusion based solely on facts garnered from media coverage. It would need a complaint to us to fully investigate the circumstances of the case in order to decide if there had been a breach of the Privacy Act.

While the circumstances of the Christchurch pair are specific to their situation, it is worth explaining there are a range of avenues for similarly affected people to pursue a legal remedy. For example, people can take legal action under common law for invasion of privacy against those who recorded and published the images.

It could also be a police matter because it is against the law under the Crimes Act 1961 to make covert intimate recordings of people without their consent or knowledge, and to publish them. It would be up to the Police to determine if there was a case for the law being broken in this way.

Additionally, there’s a law under section 30 of the Summary Offences Act 1981 against peeping and peering into people’s homes and to record any activity within.

The Harmful Digital Communications Bill, soon to be enacted, is also likely to bring greater clarity to similar situations involving the distribution and publication of images. That law change will make it easier for people to have harmful images removed from the internet by an agency that will investigate and facilitate taking those images down. It will also place limits on the distribution of those images.

The plight of the Christchurch pair has implications for all of us. People in their unguarded moments in public places are easy targets for anyone. It is not only celebrities who need to worry about people with cameras ambushing or trailing after them.

Today, the mobile phone, the internet and social media mean we can all be paparazzi. But that doesn’t absolve us of our responsibility to do the decent thing and not share images of others in their intimate and personal moments. 

6 comments

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  • It struck me when this hit the news that it could well fit within the Hosking v Runting test:

    1. Existence of facts reasonably expected to be private. They were in private premises after hours. If that is not enough then it seems to me that we're giving carte blanche to intrusive photography, at least under common law.

    2. Publicity given to those facts which would be considered highly offensive by the objective and reasonable person. That seems pretty clear.

    MSM publication of clips and imagery that I've seen has blurred the subjects, presumably for that reason.

    Posted by Rick Shera (@lawgeeknz), 03/02/2015 4:34pm (3 years ago)

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    The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

  • On Rick's (1), I disagree:

    Night time, well-lit interior

    No curtains

    Facing the street

    Moving around

    Ability to be obscured behind a desk (presumably) not used

    Aware there was a bar across the street (not a stretch)

    Everybody knows how easy it is to see into a lit room if it's dark outside. But if despite that, they did what they did genuinely expecting nobody to see (which I doubt), they were still least sufficiently reckless to lose any "reasonable expectation" of privacy.

    Posted by Andrew Easterbrook (@instrum3nt), 03/02/2015 6:09pm (3 years ago)

    Post Reply

    The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

  • It seems highly unlikely to me that the two parties had any thought they would be seen by the people in the bar over the road. Andrew says "everybody knows how easy it is to see into a lit room if it's dark outside" and that their own "recklessness" means they lose any reasonable expectation of privacy. I disagree that they have lost that expectation.

    They also have relationships with other people (children, spouses) who still retain "a reasonable expectation of privacy" even if we accept Andrew's reasoning about the parties themselves.

    I was saddened by this private matter/ affair being made public by both social media and media.

    Posted by C Young, 11/02/2015 11:40am (3 years ago)

    Post Reply

    The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

  • Weighed up against the couples right to privacy I would contest is the wife's right to know what her husband was up to! As mentioned in another comment, the couple had relationships and without the posting of these clips she may never have known unless he confessed.

    Posted by Mary, 12/02/2015 10:25am (3 years ago)

    Post Reply

    The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

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The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

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