Mike Hosking: Leave kids out of the public glare

Dan and Honor Carter called the lawyers in over Woman's Day's shots of their son Marco. Photo / Sarah Ivey

I see Dan and Honor Carter have called in the lawyers over photos taken without their knowledge and published in Woman's Day. I did the same thing once. It was a dozen years ago and the magazine was New Idea.

The law experts tell me that the ensuing legal action made a significant contribution to the development of privacy law not only here but all over the world. To put it simply, I lost the case in terms of being able to legally prevent the photos of my daughters being published (not that they were, given by the time the case had run its course and with the ensuing publicity it had had what is called a "chilling effect" on the attitudes of the media so New Idea claimed they had "lost" the photos, therefore they never saw the light of day anyway).

The case was lost because courts can only rule on law, and the reason I took that case in the first place was that there was no law. So although the loss was predictable, what I was hoping to achieve was the development of some new law.

So I sacked my lawyer and got myself new lawyers to take it to the Court of Appeal. That's where we won. In a majority decision the five justices gave me what is called a tort of breach of privacy. In simple terms, it's what a law would look like if one had already existed.

In it, and this is the critical bit, they suggested a magazine could be sued if the breach of privacy was such that your average adult or parent found the intrusion unacceptable. It was a brilliant, yet simple, way of explaining and putting into practice what could have been a very tricky measure.

This case has been cited in various parts of the world in the last decade by the likes of Naomi Campbell and JK Rowling.

I have been told by a number of privacy law specialists that it is the seminal case on the matter in this country, it is studied by law students and, in at least a couple of lawyers' cases, is responsible for a large number of "6-minute" charges as people have looked to cite it or use it in their own personal circumstances.

In fact John Burrows, who is head of the Flag Committee, is a privacy law expert and we had a good chat recently about the effect the case had had and the difference it's made.

The lesson from it, among many lessons, is that this sort of case is tricky when you're the one trying to create something that doesn't exist. It also raised a good number of brows within the media, given they have always relied on the very loose, yet oft expressed, "you were in a public place so we can do what we want" excuse.

Being a public figure seemed to give them the right to do whatever they wanted, which was the whole point of the case - it didn't. Especially when it came to children. But the irony wasn't lost on many in the media who saw it as odd for someone who was "in the game" to be taking legal action against his own media fellows.

Brent Impey, when he was running Mediaworks, offered me a job. In a quiet private room, often used for such secret gatherings, his first question to me was not about the job itself but about whether I thought I'd been wise to take such a court case.

To which I answered a resounding "yes". Why? Because by that stage I'd realised a couple of things. One, just how exhausting the law can be, but two and more importantly, just how profound the sense of satisfaction can be when you actually achieve something substantive.

Not only had I done something for my kids, I'd done something for a lot of kids. And in that is the critical point. By having no real privacy laws, there has never been any delineation between public figures and non-public figures so the media have been able to get away with the most appalling behaviour simply by arguing the photos were taken in a public place, and that if you're a public figure then all around you must fall into the same category.

That has not, is not, and should never have been the case. That is all Dan and Honor are arguing. It is not their children's choice to be born to well-known parents. It is the parents' right and choice as to how they parent and in Dan and Honor's case they have chosen to keep their kids away from the public glare. A magazine publishing photos without their permission is an invasion into the privacy of those children, and encroaching on a parental right of a Mum and Dad who want it to be different for their kids.

In arguing it was a public place the magazine is, by inference, suggesting those kids can never go out, and that clearly is absurd. It is suggesting that because Dan can kick a ball well, his children are destined to be parented in this particular area by the whims of publishers. Which is equally absurd.

Under the tort in my case, as written up by Justice Tipping, this would be the test. As an average New Zealander, as a parent, do you find that having to keep your kids indoors and away from lenses is fair?

As an average New Zealander, is it reasonable to accept that Dan and Honor might well be public figures but their kids don't have to be - especially when they have taken every reasonable precaution to keep them out of harm's way?

My money is on the answer being no. It is not reasonable, this is a gross breach and as such if you entered a court room and cited my case you could feel pretty good about the outcome. Not that I am offering legal advice because I am not.

But the Carter case is exactly what I set out to protect a dozen years ago.

Of course, I also argued at the time that none of this should have been necessary if the magazines weren't vultures who preyed for profit. But given they were, and sadly clearly still are, the court was the only place left to try to do something about it.