As part of the Tupu Tai Pasifika Public Sector Summer Internship Programme, the Office of the Privacy Commissioner (OPC) worked with an awesome intern, Sinola Falefo’ou, in our Policy team. As part of her time here, we have asked her to put some of her thoughts into words and share why privacy in New Zealand is such a vital issue.

"I used to... (be) like, 'What is the hottest restaurant in Hollywood? Where can I go? Where can I be seen? Who's there? What are they doing? Oh my God! Is my car washed?

"Now it's like, on my time off, I'm like, 'Where are the locations that I could go eat, go on vacation where no one will see us?... All I want is privacy, and I never thought I'd ever be to that point."

Kim Kardashian - 2018

You've just read someone eloquently detailing a psychological transformation: from not caring for privacy, to privacy becoming key. Kim saw the light; over my time at OPC, I have too. In this article I’ll talk about what I learned regarding the origins of privacy, how privacy is respected in New Zealand, and my reflections on it.

What are the broad origins of privacy?

People’s expectations of privacy today differ from the past. ‘Privacy’ as recognised in New Zealand law traces its whakapapa back to Europe. In pre-Enlightenment Europe, a person’s private conversations were often not private due to tight-knit, close quarter village living. However, over time things changed; people working and living in the same building became less common and homes became separate and increasingly private places. People were able to read controversial books and express risky political views at home during times when this could have been illegal. Privacy increasingly came to be appreciated as a cultural value, and correspondingly, the demand for respect of individual boundaries increased, and socially accepted behaviours changed. 

Privacy came to be bundled up as a key ingredient in ‘liberty’ and ‘liberalism’. John Locke was an influential philosopher who developed 'privacy' as a key ingredient in philosophy. He wrote about the social contract that required government to not interfere with a person’s property or affairs. These ideas formed over hundreds of years and gave us important developments like the milestone case of Entick v Carrington regarding the search of home for seditious materials, that declared "an Englishman’s home is his castle”.

Fast-forward to the 1980s – a relevant period – leading to the Privacy Act being passed in the 1990s. We now have this well-formed view of privacy and its critical role in our society. These values are held in a wide range of countries, and the OECD have issued its Guidelines on the Protection of Privacy and Transborder Flows of Personal Data; and our local Privacy Act, which was/is based on the OECD Guidelines became law. 

How are Privacy Rights currently protected in New Zealand?

While there are other laws that protect other types of privacy, the Privacy Act 2020 is a major source of protection for personal information. It governs how agencies collect, use, retain, and disclose personal information.  The Privacy Act also establishes the role of the Privacy Commissioner and their functions (section 17). Michael Webster is our current Privacy Commissioner. The Office of the Privacy Commissioner effectively supports the Commissioner in his many functions.

A great recent example of the work of the Office was the inquiry into the rental sector. In 2021, the Office identified that landlords and their agents were collecting considerably more personal information than necessary from tenants and prospective tenants - sexuality, religion, family status, information about family violence and other largely irrelevant matters. The Commissioner took decisive action, issuing guidance, monitoring compliance, making public statements, working with the industry to achieve better results, and taking other regulatory actions as necessary.

My reflections

If you told me 12 weeks ago that privacy is one of the most important rights we have, I would’ve interrupted you with an “Oh true bro… *yawning* Why?"

Well, growing up privacy was pretty much non-existent. In my family, there is no such thing as individual privacy, at least in the European sense of the word. What is supposedly ‘my’ business becomes ‘family’ business. We exist as a collective and, as a Tongan, I think that may be what diverges us from the western ideal of privacy being very individualistic instead of collective. However, what has been comforting, is the Act 2020 requiring the Privacy Commissioner under s21(c) to consider cultural perspectives. Particularly because as Aotearoa becomes more diverse it only makes sense that our laws reflect this.

But privacy is much bigger than I thought. In fact, privacy touches most if not every aspect of our lives.

Privacy exists as a pre-requisite to our freedom to express and be who we want to be. It gives us the space to freely read, write, message and talk. It allows us to hold our own religious beliefs, political views, or have our own sexual preference, and keep this information private if we choose to do so.

Privacy also regulates the relationship between those in positions of power, and the individual.

The Government and big social media platforms can collect, use, keep, and share our personal information, but the law of privacy regulates ‘how’. There can be whopping penalties (for example, some of the fines we’ve seen recently internationally) and reputational damage where they fall foul of the rules. After all, information is power, and we’ve seen what harm can come to individuals and society at large when information is misused.

Privacy law will of course need to keep evolving to stay fit-for-purpose for the evolving privacy challenges in society, particularly those posed by rapid technology change. But it deserves more attention in this country and needs to be seen more widely as a vital supporting beam in a flourishing society and democracy.

Written by Sinola Falefo’ou