Hyndman v Walker – Invasion of Privacy

New Zealand’s tort for invasion of privacy was recently brought to the Court of Appeal for reconsideration in Hyndman v Walker [2021] NZCA 25, following the disclosure of personal information.

Here, Mr Hyndman was the director of certain companies of a property developer that Mr Walker was appointed the liquidator of, and through this appointment had access to personal emails sent between Mr Hyndman and the property developer drafting a mocking response to an email Mr Hyndman had received from a third person.  The mocking response was never sent to the third person by Mr Hyndman. However, somehow these emails containing the mocking response were disclosed to that third person: an experience that caused Mr Hyndman emotional distress and feelings of powerlessness. This appeal came when the High Court ruled that these facts were not sufficient to make out the invasion of privacy tort.

Currently, for an invasion into privacy action to succeed two elements must be satisfied:

  1. that there a reasonable expectation of privacy for the facts in question; and
  2. that the publicity given to those facts would have been considered highly offensive to an objective and reasonable person.

For the second limb, the Court noted that it essentially requires the disclosure to be “truly humiliating and distressful or otherwise harmful”. In this case the Court agreed with the High Court’s finding that in the context of the “running battle” between Mr Walker and the property developer the disclosure did not meet the second limb.

The Court also looked at whether the tort should be reformed, as it diverges from the formulation under English law and has been subject to academic criticism. Under English law the second limb is essentially replaced with a balancing exercise and that there must be a certain level of seriousness in the alleged harm.  Turning to the academic commentary, the Court accepted that there is a “good deal of force in these criticisms of the tort as [currently] formulated”.  However, the Court ultimately decided that this case was not an appropriate one to embark on reforming the tort, largely because the Court considered that Mr Hyndman’s case would not succeed on the test applied under English law, primarily because the draft email “contained little if anything personal to Mr Hyndman” and the Court thought that the disclosure “was trifling”.

While this decision has not changed the law, it does provide a strong indication that with an appropriate fact scenario the Court does appear open to reforming the tort.  Our take-away is that it is possible that the requirements for this tort will change at some point in the future.

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Graeme Crombie
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