Nick Russell: Video of sex-romp couple highlights privacy problems in digital age

Lights, action...cameras. The Christchurch couple were filmed by patrons at a bar.

When two Christchurch office workers decided last Friday to have what may be politely called an assignation in their office, there were several things they probably weren't thinking about.

The obvious one is that they could be seen and recorded by the patrons of a neighbouring bar, whose Friday night drinks turned out rather differently than they would have expected.

But another thing they probably weren't thinking about is whether, and if so how, the law can protect privacy rights in this sort of situation.

The first question in a case like this is whether the couple had any legal right of privacy. One response is that there could be no reasonable expectation of privacy because they were in full view of a bar full of people and had made no attempt to close blinds, turn off lights or otherwise conceal their activities.

But common sense and the law are not necessarily the same thing. The courts have recognised that when someone is in public, there may yet be a reasonable expectation of privacy.

In the leading case, a couple involved in a car crash on an Auckland motorway were filmed by a reality TV programme immediately afterwards. They were clearly distressed and disorientated by their experience.

The High Court had little difficulty in finding that the fact that they were in public when they were filmed did not remove their expectation of privacy in the circumstances.

Could the Christchurch couple have had a similar expectation of privacy? Obviously the scenario is different and the sympathy which might have influenced the court in the Auckland case could be lacking. But the couple were on private premises and, it appears, were not expecting to be interrupted, much less filmed.

What if they did have a reasonable expectation of privacy? Does this mean they could be entitled to damages against anyone who published images or video footage of them?

It seems unlikely that merely watching the couple could be regarded as infringing their privacy. They were in clear view of the bar's patrons, and while many might think the moral thing to do would be to look away or warn them that they could be seen, there was no legal duty to do so.

But publishing images or video is a different matter. This creates a permanent and infinitely accessible record of the event that could easily be regarded as being offensive to a reasonable person (the test applied by the courts), particularly if the couple can be identified from those images.

At this point we encounter a practical difficulty. The damage people suffer in these cases is in their employment and personal relationships. The blunt tool of damages cannot undo that sort of harm.

Similarly, while the courts can order that publication of images or videos should stop, the difficulty with the internet is that the cat is now out of the bag. Once the images have been published on the internet it will be practically impossible for any court order to unpublish them.

So while the law may be an effective tool for preventing an expected publication that will damage someone's privacy, it is not so good at providing anything more than symbolic compensation after publication.

This still leaves the possibility of a police investigation - several offences can be committed by recording people in intimate situations without their consent, although it is not clear that any of them apply here. Privacy rights will also be strengthened when the Harmful Digital Communications Bill is passed this year.

But these are very much ambulances at the bottom of the cliff. The deeper question is about how we think about and use the digital technology that makes it easier than ever to record and publish parts of our lives that were once thought private.

• Nick Russell is a partner at Chen Palmer, New Zealand public and employment law specialists.