Balancing the Right to Privacy and Freedom of Expression: Re-evaluating Hosking v Runting in the Light of Recent Developments in English Privacy Law
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.
Privacy as an Aspect of Human Dignity : An Answer to Dean Prosser
Introduction Three-quarters of a century have passed since Warren and Brandeis published their germinal article, “The Right of Privacy.” In this period many hundreds of cases, ostensibly founded upon the right to privacy, have been decided, a number of statutes expressly embodying it have been enacted, and a sizeable scholarly literature has been devoted to it. Remarkably enough, however, there remains to this day considerable confusion concerning the nature of the interest which the right to privacy is designed to protect. The confusion is such that in 1956 a distinguished federal judge characterized the state of the law of privacy by likening it to a “haystack in a hurricane.” And, in 1960, the dean of tort scholars wrote a comprehensive article on the subject which, in effect, repudiates Warren and Brandeis by suggesting that privacy is not an independent value at all but rather a composite of the interests in reputation, emotional tranquility and intangible property. My purpose in this article is to propose a general theory of individual privacy which will reconcile the divergent strands of legal development—which will put the straws back into the haystack. The need for such a theory is pressing. In the first place, the disorder in the cases and commentary offends the primary canon of all science that a single general principle of explanation is to be preferred over a congeries of discrete rules.
Human Dignity and the Commercial Appropriation of Personality: Towards a Cosmopolitan Consensus in Publicity Rights?
This article is concerned with the commercial appropriation of human personality and its regulation in different legal systems. Where accepted, so called "publicity rights" allow for the exclusive commercial exercise of a persona's publicity values. A tradable worth can be found in many personal characteristics such as voice, signature or pseudonym. Predominantly, however, it accrues to one's name and likeness. It is argued that such potential rights are inherent in every human being.