The reasonable expectation of privacy

Abstract

It is increasingly recognised that privacy is an inherent human value, interest and a right that is worthy of legal protection. Privacy is no longer simply about being let alone ‘in one’s home’, rather the concept of privacy has evolved in a broader sense and is recongised to be an entitlement of an individual even in public spaces.

With increased surveillance by both state and non-state actors, privacy is more important than ever before. Various countries across the globe have declared privacy as a constitutional right that must be protected, and in countries where a constitutional right does not exist, the judiciary has stepped in to declare privacy as a right. Unfortunately, in New Zealand there is no general right to privacy. Rather, there are specific legal protections that safeguard certain aspects of an individual’s privacy. For example, certain offences created in the Crimes Act 1961 protects bodily privacy and informational privacy is protected under the Privacy Act 1993.

The New Zealand judiciary has also taken firm stances by creating two privacy torts, namely, tort of publication of private facts and intrusion into seclusion. However, the question remains whether there is a general right to privacy in New Zealand outside of these privacy protections. This is precisely what this thesis seeks to answer by looking closer at the concept of reasonable expectation of privacy. The judiciary has repeatedly used this concept when addressing privacy breaches. The continued use of this concept is important. But why?

Rather than just a mere test, the reasonable expectation of privacy has been attributed by the courts as an ‘entitlement’ of the individual. The courts have interpreted and applied the reasonable expectation of privacy in a range of case law such as privacy trots, search and surveillance, and other areas of the law including broadcasting matters. The courts have found that an individual’s reasonable expectation of privacy can be breached, and subsequent remedies are available. This thesis argues that the frequent and sustained use of reasonable expectation of privacy as an entitlement that deserves protection by the common law, is without a doubt sufficient to be an expression or an embodiment of a general right to privacy in New Zealand.