Balancing the right to privacy and freedom of expression: Re-evaluating Hosking v Runting in the light of recent developments in English privacy law

Abstract

This paper examines the potential impact of recent English privacy jurisprudence on the New Zealand tort of privacy. The paper contrasts the New Zealand Court of Appeal’s aversion towards an over-expansive privacy right expressed in Hosking v Runting with an increasing readiness to override freedom of expression in favour of privacy interests in the United Kingdom. Three central conflicts in the courts’ reasoning are addressed in detail, namely privacy’s relationship with public places, individuals with public profiles and mediums of publication. While developments in English privacy law highlight reasoning flaws and theoretical shortcomings in Hosking, the increasing influence European jurisprudence on English law may nevertheless justify some divergence in the two jurisdictions’ balancing of privacy and freedom of expression.