Applying and Developing the Intrusion into Seclusion Tort in New Zealand

Abstract

As new and intrusive ways of invading a person’s privacy become increasingly common, it is important that tort law has a satisfactory way of protecting a person from intrusion. The case of C v Holland in 2012 created such a protection mechanism, by importing the tort of intrusion into seclusion from the USA. Whereas the first tort of privacy introduced in New Zealand protects the publication of private facts, intrusion into seclusion prevents access to a person even if it does not result in dissemination of any personal information. This thesis explains why protecting the intrusion interest per se is important and uses Kirsty Hughes’ barriers theory, which suggests that privacy should only be protected when a desire for it is communicated or normatively appropriate, to help define the intrusion interest such that it is legally useful. It analyses the elements of an intrusion into seclusion action as suggested by Whata J in C v Holland, and recommends how they could be better constituted. The crux of the thesis though focuses on when a reasonable expectation of privacy is satisfied, a question that received limited attention in C v Holland. This section suggests that determining a reasonable expectation of privacy involves a detailed analysis of three suggested factors, modified from Richard Wilkins’ approach in the US search and seizure context. The thesis considers how the factors could be applied, both separately and holistically, to an intrusion into seclusion claim in New Zealand.