Privacy: a Chocolate Fish for Anyone Who Can Define It

Address to the Privacy Forum Hotel Intercontinental Wellington 5 May 2010 Rt Hon Sir Geoffrey Palmer SC President Law Commission

The Privacy Commissioner, who is well known to me since the days when we worked on the State-Owned Enterprises Act 1986, has instructed me to be provocative. That is a relative concept. A week after delivering the Law Commission’s report on alcohol I do not feel the need for more provocation. I do apologise for not giving you the comforting security of a PowerPoint presentation. There are two recent quotations about PowerPoint that appeal to me. The first is:1 “Power corrupts and PowerPoint corrupts absolutely.” The second is:2 “We have met the enemy and he is PowerPoint.”

That latter was a headline in the New York Times last week outlining the problems that the generals in Afghanistan had got themselves into on account of PowerPoint.

Far be it from me to suggest that the Wellington policy culture is afflicted by a similar disease. But it is worth thinking about. So I shall give an old fashioned speech. Those who want to read it can find it on the Law Commission’s website.

The Law Commission’s Review of Privacy Law is nothing if not extensive. It has come in four parts. Three parts of it are now complete in the sense we have produced final reports. Stage One was a gallop on horseback entitled Privacy: Concepts and Issues.3 This was a Study Paper. It was a mere 220 pages long. Short by our standards.

It was this work, and the associated paper that is on our website by Dr Mark Hickford,4 that led me to offer to this forum a chocolate fish for anyone who can define privacy. A more protean and elastic concept is difficult to find. Entries in 3
writing will be accepted to the Law Commission’s email address which is privacy@lawcom.govt.nz. The Judge’s decision is final. I am the Judge.

We have had the task at the Law Commission of trying to unpack the concept of privacy in different contexts and decide what legal results should flow from that. The Privacy Project The first final report that we completed as part of this review of Privacy came out in January 2008. It was entitled Public Registers, and was the outcome of Stage Two of our review.5

Public Registers are a difficult area of the law but also quite discrete in privacy terms. We recommended that public registers be regulated primarily through their establishing statutes. There are a lot of these, more than 80 of them. They all need to be individually reviewed. That is a big job.

Stage Three of the Law Commission’s Privacy project comprised an examination of the law relating to the invasion of privacy. Building on the Issues Paper we published, the final report deals with the remedies and penalties that the law should provide for invasion of privacy.6 This report did not deal with the Privacy Act 1993, except at the margins.

The essence of the Part 3 Report is the civil and criminal law as it is applied in the courts. In particular we reviewed the tort of invasion of privacy that had been confirmed by the New Zealand Court of Appeal in the case of Hosking v Runting.7 We explored whether such a tort was needed, and if so whether it needed to be codified in statutory form or left to develop through the process of the common law.

We recommended that the tort be left to the common law and to the courts. At the same time we found that surveillance is not well regulated by the current law.

Technology is developing rapidly and continually creating new ways of invading 5 Law Commission Public Registers: Review of the Law of Privacy: Stage 2 (NZLC R101, 2008). 6 Law Commission Invasion of Privacy: Penalties and Remedies: Review of the Law of Privacy: Stage 3 (NZLC R113, 2010). 7 Hosking v Runting [2005] 1 NZLR 1 (CA). 4
privacy. The Law Commission did a formidable report on Search and Surveillance Powers that was published in June 2007.8

The main recommendations of that report are now contained in a Bill before Parliament.9 That legislation deals with Police powers, search warrants and other warrants that law enforcement agencies are required to get before they can take coercive action. It covers the use of surveillance devices by law enforcement agencies.

But on the other side of that coin, when it comes to private citizens, we found gaps in the law where private citizens are snooping on each other.

The law was patchy and unsatisfactory. We thought that it needed to be rationalised and brought up to date. This has been done in a number of Australian jurisdictions. We recommended that a Surveillance Devices Act be enacted which would create the criminal offences of trespassing to install a surveillance device; using a device to undertake surveillance of the interior of a dwelling; and using tracking devices. There would be appropriate defences for each of these offences. The offences of intimate covert filming and interception of private communications currently contained in the Crimes Act should, in our view, be transferred to the new Surveillance Devices Act.

We also recommended that the Harassment Act 1997 should be amended to extend its coverage to certain types of surveillance and that a new offence of voyeurism should be created.

The Privacy Act 1993 This brings us to the fourth part of the Law Commission’s Privacy project, a review of the Privacy Act 1993.

Seldom in the history of New Zealand statute law has so much baseless misunderstanding been perpetuated by so many. Some of it seems to have been deliberate.

The Privacy Act has afforded many public and private agencies a false excuse for not carrying out their obligations. The Privacy Act is used as an excuse for not giving information in numerous occasions where there is no possible justification for the use of the Act in that manner. Thus, the Act has a bad reputation in some quarters that it does not deserve. The legal provisions do not do what many people say they do.

There are, of course, serious difficulties of interpretation involved in open-textured statutes like the Privacy Act. But the Official Information Act, which the Law Commission is also currently reviewing, has a similar open texture. In broad terms, the alternative to an open-textured statute is a rules-based system. We make it clear in our Issues Paper on the Privacy Act10 – another 500-page production – that we prefer the existing open-textured approach and do not see a rules-based system as a practical or desirable alternative.

We are hoping to get a great many submissions on this Issues Paper. At present we have around 40, and although submissions were due by 30 April we will receive late submissions up to the end of May.

We got nearly 3000 submissions on our Sale of Liquor project. We may get even more on our Misuse of Drugs project. It would be nice if we could get some more than we now have on privacy because it is an important subject. There are a number of issues upon which we need real help.

I cannot, in an address like this, cover all the difficult issues with which we are confronted in this review. But I do want to highlight a number on which we would value your feedback.

Read the full text of the speech here.

ENDS

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