With the rise of social media, now, more than ever before, a person’s ‘intrusion-free sphere’ needs adequate legal protections, writes Nikki Chamberlain

‘Tis the season where people attend festive soirees, where they may say or do things they later regret, which in the not-so-olden days would mostly be forgotten, or perhaps only recalled as an anecdote at a later Christmas party, but now, regrettably, may live for eternity. How has it come to this?

In an online age where our privacy laws are failing to keep pace with the changing online landscape, most of us are vulnerable to people with a camera on their mobile posting a picture or video of us online, doing something that may make us later want to crawl under the bedcovers.

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Consider this scenario: You’re not famous, and you don’t actively seek publicity. You meet a friend at a reasonably private function, like a Christmas party. By being there, you have implicitly consented to other people at the party knowing who you are and what you are doing there. You do something embarrassing, and someone takes your photo or videos you and posts it on social media without your consent. You inadvertently become the subject of a viral meme and now, through ‘likes’ and sharing, there are over five million views of your image. You are the target of jokes and known as ‘that’ person at ‘that’ Christmas party, and, legally, there isn’t much you can do about it.

Unfortunately, this kind of ‘virtual kidnapping’ is not uncommon, which means that defining the boundaries of an individual’s privacy rights over the use of their image by others is increasingly important. An individual should have some control over the use of their image by determining who can see it and when if its publication is likely to be considered highly objectionable to the average reasonable person. However, legal protections for the unauthorised use of an individual’s image and more broadly speaking, an individual’s likeness or personality, are woefully inadequate in Aotearoa New Zealand.

The limited statutory protections that we do have are contained in the Privacy Act 2020 (PA), the Harmful Digital Communications Act 2015 (HDCA) and the Harassment Act 2007. However, none of these acts meaningfully assist when the victim has suffered emotional harm, or actual harm through loss of a job or loss of an opportunity. The PA does not provide the victim a right to require search engines or social media sites to remove the image or links to it. It does not provide the victim a right to compensatory damages for the harm suffered. The HDCA and the Harassment Act, while providing the basis for a take-down order or a restraining order, don’t provide a right to compensatory damages for the harm suffered either.  

The gaps left by these acts will need to be filled by adopting common law privacy torts – in other words, judge-made law to remedy the harms between private parties. This is nothing new. Judges in Aotearoa New Zealand have already adopted two common law privacy law torts which derive from the United States: the ‘public disclosure of private facts’ tort and the ‘intrusion into seclusion’ tort. However, to date, New Zealand judges have not adopted a tort specifically tailored for the above situation although there is one they could use – being, the tort of ‘misappropriation of likeness or personality’.

It is time for new laws to be adopted – ones that have careful ambits to preserve freedom of speech while also ensuring that our image isn’t used in an unconsented and highly objectionable way. We can start in two ways: the adoption of the tort of ‘misappropriation of likeness or personality’ and the adoption of the ‘right to be forgotten’ as provided to European citizens under the General Data Protection Regulation. The ‘right to be forgotten’ provides people in the European Union the right to request that information about them online is erased in certain situations. But the New Zealand legislature chose not to include this express right in our PA.

As the forefathers of modern privacy law, Samuel Warren and Louis Brandeis, opined in the ‘The Right to Privacy’ back in 1890, an “intrusion-free sphere is considered to be an aspect of human dignity worthy of legal protection, as an aspect of ‘inviolate personality’.” With the rise of social media, now, more than ever before, a person’s ‘intrusion-free sphere’ needs adequate legal protections. The law needs to respond. Let’s hope it does before it’s too late for those unfortunates caught out at their staff Christmas party.

Nikki Chamberlain is a senior lecturer and associate dean at the University of Auckland Law School. She is a co-editor of the upcoming book Privacy Law in New Zealand (Third Edition).

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