Offensiveness is unlikely to be an issue. A publication might not be offensive if it shows the claimant in a good light or uses their story to highlight an important social issue. No one is claiming that is the case here. Disclosures that are designed to mock or humiliate are generally seen as particularly offensive.
So what about the reasonable expectation of privacy? The fact that something takes place in public or is visible from a public place doesn't stop a person from establishing a reasonable expectation of privacy in respect of it. Justice Allan stated this to be the law in Andrews v TVNZ, a case that involved the broadcast of detailed footage of a couple being extricated from a car wreck.
He said: "It will not always be a complete answer to a claim to a reasonable expectation of privacy to show that the relevant facts or information arose from something occurring in public. In exceptional cases a person might be entitled to maintain a claim to protection from additional publicity, although the relevant circumstances arose in public, and were observed, or were observable, by those in the immediate vicinity."
He went on to apply that law to the Andrews case and said, that even though the accident occurred in a public place, the couple's conversations were still private:
"Although the plaintiffs would have been aware that they would be overheard by those around them, they had a legitimate expectation that there would be no additional publicity. Neither was aware that they were being filmed throughout from close range."
In other words, just because the accident happened in a public place, it doesn't necessarily mean it is okay to broadcast it to the world at large. This is especially the case if the people in question didn't know they were being filmed.
If you apply that reasoning to the Christchurch sex romp, just because a bunch of people in a bar happened to see two people having sex, it doesn't mean it's okay to film them and post the clip on YouTube. That is particularly likely to be the case where, as in Christchurch, the couple had no idea they were being watched, let alone filmed.
British courts agree with this analysis. They say that whether there is a reasonable expectation of privacy depends on all the circumstances of the case. Where the event took place is only one factor. So in one case a man was able to sue for breach of privacy when the moments preceding his suicide attempt were caught on CCTV and broadcast on television. This was still the case even though he was on a public street at the time. In another decision, a newspaper breached Naomi Campbell's privacy by publishing a photo of her outside a Narcotics Anonymous meeting, even though she was standing on the street when it was taken.
Both these judgments have been cited with approval in New Zealand courts. What they show is that location isn't everything. The nature of the activity in question is also crucial - sexual and health matters are top of the list of things that are private. The nature of the publication is also very important - courts tend to take a dimmer view of wide dissemination of salacious details and/or detailed images.
What all this means for the Christchurch case is that anyone - including the mainstream media - who published images of the couple in the office block could find themselves being sued. And the couple in question might just win.
Criminal law
Liability for voyeurism doesn't end there though. It is also a criminal offence to make an intimate visual recording of a person. If you do this, you can go to prison for up to three years.
The reasonable expectation of privacy is central here as well. Section 216G of the Crimes Act 1961 explains that an intimate visual recording is:
(1)... a visual recording (for example, a photograph, videotape, or digital image) that is made in any medium using any device without the knowledge or consent of the person who is the subject of the recording, and the recording is of:
(a) a person who is in a place which, in the circumstances, would reasonably be expected to provide privacy, and that person is
(i) naked or has his or her genitals, pubic area, buttocks, or female breasts exposed, partially exposed, or clad solely in undergarments; or
(ii) engaged in an intimate sexual activity...
The pair in question clearly didn't consent to the filming and they were engaged in an intimate sexual activity (and were probably sufficiently naked as well) to satisfy these requirements. The issue is whether they were "in a place which, in the circumstances, would reasonably be expected to provide privacy".
It's difficult to say how a court would answer that question. They might take a tougher line than the courts in the civil cases. But the point of this part of the Crimes Act is to target digital voyeurism and its often very damaging long-term consequences. Voyeurism was certainly going on here. And those damaging long-term consequences are likely to be felt. A judge might just decide it's criminal.
The moral?
One of the newspapers has suggested that the moral of this story is that we need to remember to turn off the lights. But perhaps the real moral of this story is in fact that it's all fun and games until someone pulls out a camera phone.
• Nicole Moreham is Associate Professor of Law at Victoria University of Wellington. She specialises in the law of privacy. This piece was first published on Public Address.
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