Everyone in New Zealand was talking about the law of privacy last week. This was not because of an important new Supreme Court decision or an interesting legislative proposal. It was because the previous Friday night, two colleagues in a Christchurch insurance firm had late-evening sex in their office, with the lights on, in full view of a pub full of people across the road.
At least one pub patron filmed the couple’s activities on a camera phone and posted the footage on the internet. It quickly circulated on social media.
The couple’s troubles did not end there. By Sunday, both the country’s major online news outlets – Stuff and the New Zealand Herald – were running the story alongside pixelated stills from the video. The stories included detailed descriptions of what the couple had been doing, onlookers’ assessment of their performance, accounts of the high-spirited reaction of the pub patrons, and reports of disciplinary action by their employer. By Monday, it was revealed that the man involved was married with teenaged children and that the, much younger, woman had recently split from her fiancée.
Stories on the encounter consistently featured in the ‘Most Read’ lists on both the Stuff and Herald websites. By the middle of the week, it was featuring on similar lists in Sydney and had attracted the attention of the Mail Online (which, unlike other news outlets, published an unpixelated photograph of the young woman’s face). (A Google search for ‘Christchurch sex romp’ brings up all the articles.)
Was the tort of publication of private facts committed?
It wasn’t long before people started expressing disquiet about the privacy implications of the couple’s treatment both by those who posted the original footage and by the mainstream media. Some early commentary suggested that, because they were in plain view of a public place, the couple were unlikely to have any legal privacy rights. As in England, though, the situation in New Zealand is not that simple.
In order to establish the tort of publication of private facts, the couple would have to show two things: first, that they had a reasonable expectation of privacy in the video of the so-called ‘sex romp’ and probably also, that the publicity given to the video was highly offensive (Hosking v Runting  1 NZLR 1). Offensiveness is unlikely to be an issue here. Courts have held that a publication might not be offensive if it shows the claimant in a positive light or uses their story to highlight an important social issue. No-one is suggesting that is the case here. Disclosures which are designed to mock or humiliate are generally seen as particularly offensive.
So what about the reasonable expectation of privacy? As in England, the fact that something takes place in public or is visible from a public place does not stop a person from establishing a reasonable expectation of privacy in respect of it. Justice Allan stated this to be the case in Andrews v TVNZ  NZHC 1586, a case which 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.
It followed that, even though the Andrews’ accident occurred in a public place, their 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.
It’s a least arguable, then, that it doesn’t automatically follow from the fact that a group of bar patrons happened to see two people having sex, that it is okay to film the incident and post the clip on YouTube. This is particularly the case where, as here, the individuals had no idea they were being watched, let alone filmed.
This kind of reasoning will be familiar to English lawyers. Both Peck v United Kingdom (2003) 36 EHRR 41(in which in the moments preceding the claimant’s suicide attempt were caught on CCTV and broadcast on television) and Campbell v MGN Ltd  UKHL 22 (where the defendant published photos of the claimant outside a Narcotics Anonymous meeting) have been cited with approval in New Zealand courts. As in England, 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. (This is also likely to be the case under the fledgling tort of intrusion into seclusion established in C v Holland  NZHC 2155.)
All this suggests that if one of these individuals does decide to sue – rather than retreat into the background and wait for the incident to be forgotten – they might just be successful.
Liability for voyeurism doesn’t end there though. It is also an offence (carrying a maximum penalty of 3 years imprisonment) to make an intimate visual recording of a person.
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’.
Case law on this provision is limited so it is difficult to say how a court would answer that question. Judges might take a tougher line here than in the civil cases. But defendants in England have been convicted of voyeurism even though the victim was in a publicly visible place. And 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 conviction, then, is probably not out of the question.
One of the newspapers has suggested that the moral of this story is that we need to remember to turn off the lights. But, as is so often the case in privacy stories, perhaps the real moral is that it is all fun and games until someone pulls out a camera phone.
Dr Nicole Moreham is Associate Professor, Faculty of Law, Victoria University of Wellington and editor of Tugendhat and Christie on the Law of Privacy and the Media.
A version of this post/article has been previously published on the NZ Herald and Public Address. Sections of that original post/article are reproduced with thanks.