Privacy, Constitutions and the Law of Torts: a Comparative and Theoretical Analysis of Protecting Personal Information Against Dissemination in New Zealand, the UK and the USA.

Abstract

The New Zealand Court of Appeal has recently acknowledged the existence of a freestanding tort of invasion of privacy in Hosking v Runting. The tort is in its infancy and the courts are still grappling with essential problems, the most prominent of which is the conflict with countervailing interests in freedom of speech. In need of guidance, the courts turn to overseas authorities, predominantly from the United Kingdom and the United States of America. The commonly found descriptive nature of the comparison invites a broader analysis of these jurisdictions. In this thesis, I offer a theoretically informed comparative law analysis of New Zealand's new tort with the American public disclosure of private facts tort and the British extended breach of confidence action. In all three jurisdictions, the conflict of privacy with individual and societal concerns in freedom of speech has led to an exten-sion of (quasi-) constitutional norms derived, for instance, from the New Zealand Bill of Rights Act 1990 into the common law sphere – the horizontal effect. The horizontal application of constitutional rights poses significant legal problems to the common law, because it has learned to deal with duties rather than rights. The time has come to re-consider the nature of rights in both constitutional and tort law. The comparison shows that New Zealand has effectively adopted two torts – one following the duty-based lead of the United States of America and an alternative modelled along the lines of the more rights-orientated British law. The law of the United Kingdom and the USA differ to a degree that calls their comparability into question. I present the preferable British ap-proach as a 'constitutionalised common law tort of privacy.' The results also show that this model represents a competitive third way to traditional solutions based on common law or statute by means of utilising a statutory human rights instrument as an analytical framework for the common law.