The Tort of Privacy - a discussion of Mosley v News Group Newspapers Ltd

Abstract

On 30 March 2008, the News of the World in London followed its motto as the fearless advocacy of truth, and published a story headlined: “FI BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS.” Mr Max Mosley, the President of the FIA, sued the newspaper for breach of privacy arising from information placed on the newspaper’s website, including video footage secretly obtained of the alleged orgy. He was not successful in obtaining an injunction to prevent publication,[1] but was awarded the highest damages to date for a privacy claim in Britain - ƒ60,000.[2] In New Zealand the tort of privacy is in an early stage of development which is influenced by what is happening in the UK and elsewhere, and the questions currently being raised about it reveal much about how we think and feel about privacy generally and its place in the liberal democracy we have in this country. The tort is being exhaustively investigated by the New Zealand Law Commission, which has just issued a significant Issues Paper on privacy generally[3]. Following his success, Mr Mosley is currently suing 17 individuals in Germany, France and Italy in defamation. He is also considering suing the NoW in defamation for the Nazi references in its coverage, which were found in the privacy case to be untrue, but wants to await the outcome of the European actions so that he is not seen as a ‘bully’. Mr Mosley is, however, actively campaigning for a privacy law in the United Kingdom which would require pre-notification by newspapers to individuals if it is intended to publish details of their private lives. In this paper, I investigate the Mosley case to determine its impact on New Zealand law, if any. In particular, I examine the sort of facts which give rise to an expectation of privacy, the relevance of plaintiff culpability, the test of high offensiveness of publication, the remedies which might be sought, and the possibility that the privacy tort could metamorphosise into a general loss of dignity claim which embraces the claims we currently know as defamation and breach of privacy. First, however, it is necessary to refer briefly to the leading New Zealand case, Hosking v Runting.