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A peeping and prying tort in New Zealand C v Holland

#1 User is offline   hukildaspida 

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Posted 13 October 2012 - 01:53 AM

PRIVACY
C v Holland – a peeping and prying tort in New Zealand

By Caitlin Wilson, associate, and Daniel Nilsson, solicitor, Lee Salmon Long

http://www.nzlawyerm...23/Default.aspx

In his careful judgment in C v Holland [2012] NZHC 2155 (24 August 2012), Justice Whata has introduced a tort of invasion of privacy in New Zealand which, unlike that affirmed in Hosking v Runting [2005] 1 NZLR 1 (CA), is actionable irrespective of actual or anticipated publication of the private matter. In short, it is a peeping and prying tort.

The introduction of a tort of intrusion into seclusion, based heavily on United States jurisprudence (and the recent Court of Appeal (Ontario) decision, Jones v Tsige [2012] ONCA 32), appeals to a general sense of decency and will be welcomed by many. However, as with any new actionable wrong, questions must be raised as to its scope and nature.

The judgment
The facts in Holland provided a perfect springboard for the introduction of the new tort. The plaintiff was covertly filmed showering by her partner’s flatmate. It was accepted that the defendant had not published the recorded footage or allowed anyone else to view it. The defendant also accepted that the filming constituted an unjustified invasion of the plaintiff’s privacy.

The question for the judge was whether, absent publication, this type of invasion was actionable. Justice Whata answered this question affirmatively, finding the following elements necessary for the cause of action to be established (at [94]):

An intentional and unauthorised intrusion (The first question one might ask is how far the ‘intrusion’ needs to go? Must it be physical intrusion? If Holland had advised a friend that he had surreptitiously taken this footage, would Holland’s friend commit the tort himself by watching it?);
Into seclusion (being intimate personal activity, space, or affairs);
(Involving infringement of a reasonable expectation of privacy; and
Which is highly offensive to a reasonable person.

The privacy interest

One fundamental question concerning any novel cause of action is the nature of the interest it is designed to protect as this will govern not only the elements to be proven but also the appropriate remedy.

In Hosking, Court of Appeal President Justice Gault and Justice Blanchard found the disclosure tort to be concerned with protecting plaintiffs from humiliation and distress caused by publication of embarrassing private information (at [126], [128], and [138]). This desire to protect plaintiffs from mental distress and emotional harm also appears to be the basis upon which Justice Whata decided Holland. His Honour noted at [96] that:

“A right of action only arises in respect of an intrusion that is objectively determined, due to its extent and nature, to be offensive by causing real hurt or harm.”

A similar approach was taken by the Court of Appeal of Ontario in Jones v Tsige (see particularly [69]), and is consistent with Prosser’s 1960 definition of the tort in the United States (at 384 and 292) (in turn drawn from Samuel Warren and Louis Brandeis in their 1890 Harvard Law Review article, “The Right to Privacy” (1890) 4 Harvard Law Review 193).

Other aspects of Holland are less clear on the interests protected. At [19], the following characterisation of the interest from Lake v Wal-Mart Stores Inc 582 NW 2d 231 (Minn 1998) at 235 is cited with approval:

“The right to privacy is an integral part of our humanity; one has a public persona, exposed and active, and a private persona, guarded and preserved. The heart of our liberty is choosing which parts of our lives shall become public and which parts we shall hold close.

“Here Lake and Weber allege in their complaint that a photograph of their nude bodies has been publicized. One’s naked body is a very private part of one’s person and generally known to others only by choice.”

Lake (a strike-out application) did not consider the extent and nature of the harm caused. However, on its face, this passage appears more concerned with the plaintiff’s ability to control access to her private sphere than protection from emotional distress, a concern that can also be seen reflected in other passages in Holland (at [67]-[69]).

Which basis is preferred is not without consequence, as it may affect the way in which claims are responded to and the appropriate remedy for breaches.

To illustrate – would the same facts have been actionable if a plaintiff did not care that she was watched or even habitually sold footage of herself showering online? Would the same loss be caused by intruding on a nun? What if Holland had not yet viewed the footage when discovered by the plaintiff, so that only technology had ‘seen’ her? Or if Holland had taped the plaintiff’s boyfriend by mistake? Is ‘sleaze factor’ the elephant in the room here, or can that element be eliminated and the tort still established?

Protection from emotional distress

If emotional distress is the mischief we are seeking to guard against, should proof of causation and harm be necessary elements? Prosser did not consider this element necessary, arguing damages can be awarded for presumed harm where the intrusion was objectively offensive (at 409). This type of presumption was also accepted in Jones (at [71]), and Justice Whata appears to have followed suit in Holland. (This is not, however, universally accepted, see for example Grosse v Purvis [2003] QDC 151 and Narducci v Village of Bellwood 444 F.Supp.2d 924 (2006).)

Presumptions, however, are rebuttable. Where a person has not in fact suffered emotional harm, surely she does not deserve compensation for intrusion merely because the average passenger on the Clapham omnibus would have been offended by it? Compare this to the truth defence in a defamation action: while the inherent value of a reputation is recognised, no action can survive where the plaintiff does not deserve the reputation she seeks to protect.

Alternative analysis: protection of personal sphere autonomy

We suggest this new tort is aimed at more than just hurt feelings. It is difficult to argue that a person who sells footage of herself showering should be entitled to a lesser remedy for unauthorised intrusion. Developments in the US of the four-limbed tort (for example, see Eastwood v Superior Court of Los Angeles 198 Cal Rptr 342 (1983)) indicates that what we are in fact seeking to protect is not so much hurt feelings as autonomy over one’s personal sphere: the right to control who has access to our private sphere and to what use we put it. (See also the United Kingdom’s extension of breach of confidence: Douglas v Hello! Ltd [2001] QB 967, where the publication by one tabloid of wedding photographs another newspaper was specifically authorised to publish was the central complaint. The desire to exploit the photographs for commercial gain seems to point to ‘control over use’ rather than ‘exposure of secret or confidential information’ as the essential objective.)

This right could be seen as akin to a proprietary right in one’s own private persona. (This basis was rejected by Warren and Brandeis who were primarily focused on emotional upset.) It would arguably fit more comfortably with the facts and findings in Douglas than the extension of breach of confidence deployed in that case (compare Hosking at [48]). In today’s world of paparazzi, telephoto lenses, and topless celebrity sunbathing, this type of right could be extremely lucrative. An enforceable right to control access of this kind not only allows the individual to elect to charge for public exposure of private facts or images, it also provides greater control over their public perception, allowing control over what aspects of their persona are exposed through general publication. (A limited form of this type of right is recognised in section 150 of the Copyright Act 1994, which prevents publication of images of personal events absent consent, even where the individual depicted is not the copyright owner.)

This characterisation of privacy is favoured in Quebec. Under section 5 of Quebec’s Charter of Human Rights and Freedoms, everyone has “a right to respect for his private life”. In Aubry v Éditions Vice-Versa inc [1998] 1 SCR 591, a case concerning the unauthorised publication of a photo featuring the plaintiff taken in a public place, the Supreme Court of Canada enlarged on the section 5 right at [52]:

“If the purpose of the right to privacy guaranteed by [section] 5 of the Quebec Charter is to protect a sphere of individual autonomy, that right must include the ability to control the use made of one’s image, since the right to one’s image is based on the idea of individual autonomy, that is, on the control each person has over his or her identity. It can also be stated that this control implies a personal choice.”

British Columbia has since declined to follow Aubry on the basis that it is founded in the civil rather than common law tradition (Hung v Gardiner 2002 BCSC 1234). Justice Whata also declined to consider the case, presumably on the same basis (see footnote 84 of the judgment). However, Aubry may warrant further consideration by common law courts.

Viewing a right to privacy as a right to control a personal ‘asset’ would remove the need to presume harm, as once the plaintiff has been deprived of its rights, loss is established as a matter of fact (rather than presumption).

Measure of damages will remain an issue, as the economic value of a right to control access to a private persona is not easily quantified. In a Hosking scenario, a disgorgement remedy may be the most appropriate remedy where profit is derived from publication and injunctions are unlikely to be effective against instant worldwide distribution over the Internet. (A case on point is the ineffectiveness of injunctions in respect of unauthorised topless images of Kate Middleton (New York Times, “French Court Rebukes Magazine for Photos of Royal Couple”, 18 September 2012).) In the Holland ‘profitless’ scenario, however, assessment of compensatory damages may be difficult (compare Jones).

On the other hand, recognition of an inherent right in one’s own private persona may allow the use of punitive damages where the culpability of the defendant is an aggravating factor. (The availability of punitive damages is recognised in section 49 of the Quebec Charter, but was discouraged in Jones (see [88]).) In this way, the ‘sleaze factor’ of the intrusion will become relevant to the level of compensation.

Expectations of privacy

We live in an age where covert-intrusion technologies have developed beyond Samuel Warren’s wildest dreams. Google Earth can see into our bedrooms and nanny cams can be fitted into teddy bears’ eyes. CCTV cameras capture our daily moves and many employers install hidden cameras in the workplace. (In Canwest TVWorks Ltd v XY [2008] NZAR 1, Justice Harrison held that a photographer had a reasonable expectation of privacy while working in some circumstances.) While these cameras are aimed at catching legitimate footage (or wrongdoing), what if they capture innocent (but highly private) footage instead?

At the same time, social networking sites have given rise to an ever-increasing publication of private matters by everyday persons. Today, it is not just celebrities who live in ‘the public eye’. Many of us do. We are constantly tweeting, Facebooking, “Checking In” (“Checking In” is a Facebook feature which allows the user to immediately update his or her geographical whereabouts to all subscribed “friends”), and posting footage of our private lives online. Should different standards of expectations of privacy apply (in the same way Hosking differentiates between public and ordinary figures (at [121])) to social media ‘over sharers’?

As the line between private and public becomes more and more blurred, the Courts will be called upon to answer many of these questions in analysing the boundaries to a right to freedom from intrusion.

NZLawyer \\ issue 194 \\ 5 October 2012
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#2 User is offline   hukildaspida 

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Posted 13 October 2012 - 01:59 AM

http://www.nzlawyerm...00/Default.aspx

PRIVACY

New privacy law protects against intrusion into privacy


By Tom Turton, senior solicitor, Hudson Gavin Martin

The recent High Court decision in C v Holland [2012] NZHC 2155 (24 August 2012) has changed the landscape for privacy law in New Zealand. Essentially, it has created a new law which protects individuals from highly offensive interferences with solitude or seclusion. It means that the news media needs to think carefully about the practice of news-gathering, and not just about how it uses the results of that news-gathering.

Ever since the decision in Hosking v Runting [2005] 1 NZLR 1, when the Court of Appeal recognised the existence of a stand-alone tort of invasion of privacy, if somebody published facts about you which were highly offensive and which you reasonably expected were private, you have been able to sue that person for breach of privacy.

However, following C v Holland, it’s no longer necessary that the person who has private facts about you actually publishes those private facts. The law now protects seclusion as an interest in its own right.
The decision signifies a further step away from the position in the United Kingdom where the law of privacy has a close conceptual link to the law of confidentiality, and toward the North American position, where privacy is recognised on its own.

C v Holland involved a woman (who was referred to only as C to protect her identity) who had been filmed naked in the bathroom at her boyfriend’s house. The defendant, Mr Holland, co-owned the house with C’s boyfriend and had hidden a small camera in the roof cavity. He was able to record two separate videos of C undressing and showering. Holland didn’t actually publish the recordings, but he did download them onto an external hard drive. Ultimately, C and her boyfriend found out what Holland had done. C was deeply distressed and took the matter to the police. Holland pleaded guilty to the criminal charge of making an intimate visual recording, and was ordered to pay $1,000 in reparation.

C also sued Holland for breach of privacy, hoping to recover damages. However, C’s problem was that the Hosking v Runting version of privacy law didn’t provide a remedy in circumstances where there hadn’t been a publication.

In a long and considered judgment, Justice Whata ultimately decided in C’s favour, ruling that there is a tort of intrusion on seclusion as part of New Zealand law.

In reaching this conclusion, Justice Whata recognised that freedom from intrusion into personal affairs is a value recognised in New Zealand law, with protections embodied in the Privacy Act 1993, the laws of trespass, and the criminal restrictions on covert surveillance, for example. However, in Justice Whata’s view, the existing protections “are coherent but they are not comprehensive” (at [89]). In C’s case, there was no trespass, and with no threatened publication, the Hosking v Runting version of the tort would not apply. The criminal law only went so far to restore C’s dignity.

His Honour considered that this is a matter for the Courts to address – they have more flexibility to deal with changing circumstances than Parliament does, and as technology advances and the threats to a person’s privacy increase that flexibility is crucial.

It is apparent that this is a case of a judge creating law; Justice Whata implicitly admits as much, but suggests that is “concordant with the historic function of this Court” (at [88]). That position is not uncontroversial.

So what are the elements of this new tort?
First, there needs to have been an intentional intrusion rather than an accidental one, and it must be unauthorised. By that, Justice Whata explained that the intrusion cannot be consensual and it cannot be legal. Second, it must be an intrusion into a person’s intimate personal activity, space, or affairs. Third, the expectation of privacy must be reasonable. And finally, the intrusion must be highly offensive to the individual concerned. By specifying that only ‘highly offensive’ intrusions are actionable, the threshold is set relatively high. These last two elements match those of the Hosking v Runting privacy tort.

While it is difficult to object when peeping toms like Holland get their comeuppance, this decision will potentially affect the media and their news-gathering operations, especially visual media such as television and print photographers who will need to give a lot of thought before they use long-lens or covert photography. The decision could also impact on the practice (admittedly already out of favour) of ‘doorstepping’ – where a reporter turns up at someone’s home or office with cameras rolling, looking for answers. Reporters need to be careful that their activities do not constitute a highly offensive intrusion into anybody’s personal activity, space, or affairs.

As far as what sort of intrusion will and won’t be permissible, it’s difficult to predict where the line will be drawn, but obviously there will be a sort of ‘sliding scale’ of protection. His Honour endorsed comments in an earlier Court of Appeal decision which recognised ‘gradations’. In terms of property, the highest expectation of privacy would attach to residential property, and especially bathrooms or the areas of a house such as where you’d expect to find private correspondence or intimate clothing. Less privacy can be expected in the garden, particular the front garden (or presumably doorsteps). Even less privacy can be expected in vehicles or commercial premises.

Of course, the media will already consider all this. The Broadcasting Standards Authority’s privacy principles expressly recognise an individual’s interest in solitude or seclusion, and prohibit intrusions which are “highly offensive to an objective reasonable person”. The Press Council’s Code of Practice is less specific, but it does state that “deceit and subterfuge” can only be condoned when the information sought is in the public interest and there’s no other way to obtain it.

However, the prospect of High Court proceedings will no doubt bring a sharper focus to these obligations from now on.

NZLawyer extra, edition 59, 28 September 2012
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#3 User is offline   hukildaspida 

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Posted 17 November 2012 - 09:23 PM

http://www.stuff.co....eeping-perverts

Police ask public to dob in peeping perverts

TALIA SHADWELL
Last updated 14:37 20/10/2012

A man glimpsed performing an indecent act while he watched women at a Palmerston North dance studio has sparked fresh calls for people to report "peepers" promptly.

Senior Sergeant Brett Calkin said people often shied away from reporting instances of public indecency, but he called for renewed vigilance to help catch Palmerston North's public perverts.


Police are seeking information about a man who surprised dancers at a central city studio about 8pm on Thursday evening, when he was spotted performing an indecent act as he watched their class through a street window. The suspect scarpered when he realised he, too, had an audience. Mr Calkin said people should contact police the moment they witnessed any indecent act.

"Things like this happen on a fairly regular basis and we understand it tends to be women who are the victims and that it tends to frighten them into being shocked and shy. Then they get away. People need to ring police as quickly as possible, and we can catch them," he said.

"The majority of these guys are going to take off but it may be we have got a car just up the road and we might get there just in time."

Offenders were typically male and while some may pose a risk to people's safety, others were dealing with mental health issues or stress that caused them to "act out" in an sexually perverse manner, Mr Calkin said.

Exhibiting behaviour in public might seem harmless, if a little unpleasant, but it could be a different story if the offender encountered a person alone, he said.

Public vigilance helped catch serial exhibitionist Steven Karu in Palmerston North this year. He was jailed after committing indecent acts throughout Manawatu.

He gained notoriety for sending a threatening letter from prison to a young teenage girl who witnessed him committing an indecent act in a bus. She photographed him on her mobile phone to help identify him.

He had eight convictions for indecency over the years, with an offence in Bulls the final straw.

He was sentenced to 18 months in prison in September.

Palmerston North police want to hear from anyone with information about Thursday's incident.

The offender was described as a moderately-built Maori man in his 30s. He was clean-shaven with short dark hair, about 185cm-tall and dressed in a matching dark-coloured tracksuit with white detail. He was seen driving a late-model silver station wagon in the Ngata St area.

Information can be passed on to the Palmerston North police on 06 351 3600 or the anonymous Crimestoppers line on 0800 555 111.


- © Fairfax NZ News
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#4 User is offline   hukildaspida 

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Posted 09 October 2013 - 09:27 AM

Was there also a camera in the ladies toilets?

If so has that issues also been addressed?


Man objects to CCTV camera in the men's public toilets of a pub (Case Note 244873) [2013] NZPrivCmr 5 (16 September 2013)

Last Updated: 17 September 2013

http://www.nzlii.org...Cmr/2013/5.html

Case Note 244873 [2013] NZ PrivCmr 5 : Man objects to CCTV camera in the men's public toilets of a pub

16/09/2013 12:21pm

A man was concerned that he had been filmed in the men’s toilets of a pub by a fixed CCTV camera. He was initially unaware of the camera’s presence, but had later seen copies of the pictures taken while he was using the bathroom.

The man complained to us that use of a camera in toilet areas was an interference with his privacy. The complaint raised issues under principle 4 of the Privacy Act.

Principle 4 relates to the means by which personal information is collected. It requires that personal information must not be collected by unlawful means, by means that are unfair in the circumstances or by means that unreasonably intrude into an individual’s personal affairs.

The question of what is unreasonably intrusive or unfair involves a consideration of all the circumstances. These include the purpose of the collection, whether the collection was effective to fulfil that purpose, the sensitivity of the information collected, whether realistic alternatives were available that would result in less intrusion into privacy, and whether the collection was overt or covert.

We investigated the complaint. The pub manager informed us that several CCTV cameras were in place on the premises for safety and security reasons. Signs had been positioned around the pub to advise people that they may be filmed. He confirmed that there was a camera operating in the men’s toilet area.

We agreed that it was reasonable for CCTV cameras to be mounted in most public and staff areas for safety and security reasons, since there was a genuine need for them. There was also adequate signage, the footage was only used for safety and security reasons, and there was adequate protection for the information (for example limiting which staff members could access it). We were therefore satisfied that the general use of CCTV in most areas of the pub complied with the Act.

However, the purpose for having a camera in the men’s toilet was not clear. We considered that a camera placed in the men’s toilet area was capturing highly sensitive information in an unreasonably intrusive manner and that it breached principle 4. It was a permanent fixture and it overlooked the urinals. Even if the signage had indicated that there was a camera in the toilet area, it would not have made the camera justifiable because of the other circumstances of the filming.

The pub manager agreed to remove the camera in the toilet area. This resolved the complaint, and we chose not to take the matter further.

September 2013

Collection of personal information – pub – camera in men’s toilet area – unfair and unreasonably intrusive in the circumstances – Privacy Act 1993; principle 4

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org...Cmr/2013/5.html
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#5 User is offline   hukildaspida 

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Posted 10 February 2014 - 02:42 PM

From the UK where those whom breach privacy are also given a weak sentence.

Former prison officer is 83rd person arrested as part of Operation Elveden corruption probe


http://www.pressgaze...orruption-probe

Darren Boyle 22 January 2014

A former prison officer has become the 83rd person arrested by detectives probing corrupt payments to public officials.

The 49-year-old was taken into custody this morning from his home in north London and is being held on suspicion of misconduct in public office. He is also being questioned about a conspiracy to commit a crime.

The man is the 83rd person arrested by Operation Elveden detectives and was questioned at a London police station.

He was bailed to reappear at a north London police station in April.

Almost £20 million has so far been spent on Operation Elveden and its associated investigations Weeting and Tuleta.

Detectives from Operation Elveden have so far identified more than 400 individuals including royalty who may have been victims of press intrusion.

On Monday ,Alan Ostler, a former worker at Broadmoor psychiatric hospital received a seven-month suspended sentence for passing on confidential patient details to a newspaper.

He released information of a patient who wanted gender realignment surgery from the NHS while in custody. The story alleged that the patient had changed from a woman to a man and wanted the surgery reversed.

Ostler, 32, from Uxbridge in London was ordered to complete 150 hours of unpaid community service.

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Posted 30 June 2014 - 11:41 AM

Cellphone peeper caught


Last updated 05:00 28/06/2014

http://www.stuff.co....e-peeper-caught

A middle-aged man spent hours on Wellington's Lambton Quay attempting to photograph up the skirts of women before being caught in Farmers department store taking a snap of a female customer.

Alessandro Doria, 46, of Wilton, was caught after security staff in the store watched him lean down next to a woman and use his cellphone to see up her skirt.


Police were called and, on checking his cellphone, found eight other pictures where he had attempted to do the same thing on the street between 2.56pm and 5.30pm on May 30. None of the women he tried to take photos of have been identified.

He admitted to police he did not know any of the women.

Doria pleaded guilty yesterday to one charge of intentionally making an intimate visual recording. He was charged only in relation to the Farmers customer, not the unsuccessful Lambton Quay photo attempts.

Police prosecutor Mark Wilton told Wellington District Court Judge Geoff Ellis
that Doria had no previous convictions.

The judge remanded Doria at large for sentencing in August for him to make an application to be discharged without conviction.

He told Doria no conviction had yet been entered, but he would give no indication that he would approve a discharge without conviction if he was the sentencing judge.

Doria told The Dominion Post yesterday the incident had been a mistake and he was "extremely sorry" for what he had done.

"I feel awful . . . it was just a stupid moment. I just feel so bad. I'm extremely sorry. I've never done anything like this before," he said.

Farmers national security manager Nathan Breed
said the chain worked to ensure its stores were safe environments for customers and staff.

All the stores had security staff and technology installed to constantly monitor CCTV cameras. Security teams looked for suspicious activity, which was normally shoplifting.

"However, in this case the activity of this individual was identified as being suspicious. Based on this, security staff approached the man in question, held him and waited for police to arrive," Breed said.

The Doria incident follows an earlier case of an upskirt peeper caught in a Farmers store in Wellington's Cuba Mall in 2012. In that case, a 36-year-old Wellington man had 94 videos from up the skirts of 180 women or of them undressing in bathrooms. He was sentenced to 10 months home detention.

His victims included pupils from five Wellington high schools, and he was eventually caught after a Farmers security guard monitoring CCTV cameras noticed him lurking behind women in the Cuba Mall store.


The former government worker's name was suppressed to protect his wife. He was also banished from his Jehovah's Witness congregation once the offending came to light.


- The Dominion Post
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Posted 30 October 2014 - 03:28 PM

A case from Texas.

Please click on the link to read the readers comments


Texas court throws out 'upskirt' photo law

By Cindy George

September 17, 2014 | Updated: September 19, 2014 2:43pm

http://www.houstonch...893b5408b7034ef

The state's highest criminal court on Wednesday tossed out part of a Texas law banning "improper photography or visual recording" - surreptitious images acquired in public for sexual gratification, often called "upskirting" or "downblousing" - as a violation of federal free-speech rights and an improper restriction on a person's right to individual thoughts.

In an 8-1 ruling, the Texas Court of Criminal Appeals said photos, like paintings, films and books, are "inherently expressive" and, therefore, are protected by the First Amendment. The opinion supported a previous decision by the San Antonio-based 4th Court of Appeals.

"The camera is essentially the photographer's pen and paintbrush," the opinion written by Presiding Judge Sharon Keller said. "A person's purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves."

The appeal questioned why some free speech can be treated as unlawful behavior in Texas. Peter Linzer, who teaches constitutional and First Amendment law at the University of Houston Law Center, said: "It's hard to see how you could make taking a picture a crime."

The case involved Ronald Thompson, who was charged in 2011 with 26 counts of improper photography after taking underwater pictures of clothed children - most wearing swimsuits - at a San Antonio water park. He appealed the law's constitutionality before his trial. He contended that a plain reading of the law would place street photographers, entertainment journalists, arts patrons, pep rally attendees and "even the harmless eccentric" at risk of incarceration.

In its arguments, the Bexar County District Attorney's Office asserted that the law's intent element - such as trying to do something unlawful - places otherwise expressive activity beyond First Amendment protection.

The court disagreed.

"Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of 'paternalistic interest in regulating the defendant's mind' that the First Amendment was designed to guard against," Keller wrote. "We also keep in mind the Supreme Court's admonition that the forms of speech that are exempt from First Amendment protection are limited, and we should not be quick to recognize new categories of unprotected expression."

Linzer said the court rendered a sound decision.

"To think that it's unlawful to look at a little girl in a swimsuit, when you have lascivious thoughts, in public? And you did not do anything to that child? That cannot be made a crime in the United States," he said. "The fact that some people might find that very offensive doesn't change anything. ... You can't prevent someone in public from looking at you and having dark thoughts."

Linzer added that the opinion also exposes the statute as excessive. "It simply goes beyond things that can be done legally and constitutionally," he said.

An amicus brief supporting Thompson was filed by the Reporters Committee for Freedom of the Press, which argued that the state could revise the law to avoid First Amendment challenges by focusing on circumstances that are not in public.

Under the Texas Penal Code section on sexual offenses, it is a crime to electronically photograph or record a visual image of someone who is not in a bathroom or private dressing room without the other person's consent and "with intent to arouse or gratify the sexual desire of any person." The ruling does not address the constitutionality of the statute's latter part that involves the broadcast or transmission of images.

At least 151 inappropriate photography cases have been filed in Harris County during the past 13 years. Roughly 15 of those are pending.

Current and resolved cases could be affected by the criminal appeals court's ruling, according to Harris County District Attorney's Office spokesman Jeff McShan.

There is one Harris County case on appeal involving a cellphone left in a Tomball department store dressing room in 2012 that captured clandestine footage of a girl's behind. Last year, a jury convicted Tomball resident Ronnie Royston, now 40, as the person who arranged the video and he was sentenced to four years of probation.

Other recent local prosecutions include a 12-year-old Channelview girl who photographed a classmate in a middle-school locker room in 2012. The image didn't show nudity, was never posted online and was deleted minutes later. A jury convicted the pre-teen of a felony in 2013. She was placed on probation for one year.

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Cindy George

Reporter, The Houston Advocate, Houston Chronicle
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#8 User is offline   hukildaspida 

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Posted 03 February 2015 - 06:53 PM

Some people need to familiarize themselves with the Human Rights Act.

How would the likes of Employment lawyer Kathryn Dalziel as well as those that filmed and published this material would feel if the same thing happened to them, or there family members and friends?

Quite seriously there are a number of breaches of law all around.

If people are lead to believe it's OK to film people that are visible in an office without there knowledge or consent, then that leads to further unsavory conduct elsewhere.




Insurance company workers caught in Christchurch office sex romp by patrons watching from pub

Date
February 3, 2015 - 5:36AM

476 reading now

Joelle Dally


http://www.smh.com.a...202-134e4r.html

A late-night romantic encounter in a Christchurch insurance office on Friday night that was witnessed by bar patrons across the road could cost the couple their jobs.

The Marsh Ltd employees, who left the lights on in the Papanui Rd building, were filmed and photographed by patrons at the Carlton Bar and Eatery who posted images on Facebook and Twitter.

The photos have attracted thousands of likes and hundreds of shares.

"The whole pub knew about it and was watching, while they were totally oblivious to it. And afterwards celebrating with wine," one man posted.


"They should have turned the lights out," said another.

Several patrons said the band stopped playing while most of the bar watched out the windows.

Marsh Ltd chief executive Grant Milne said the company was taking the matter seriously.

The man and woman had been identified and an employment investigation was under way.

"We know who is involved. It's obvious from the photos," Milne said.

Executives from the insurance broker company were flying down from Auckland this morning to help deal with the incident.

Milne would not say if the man and woman had returned to work this morning.

"We take these matters very seriously," he said.

"It's not the type of behaviour we condone. It's very disappointing."

Milne said the online publicity was embarrassing for the company.

"One of the challenges of social media is the inability to control things," he said.

Carlton owner James Murdoch
said the bar had been in contact with Marsh Ltd.

"Obviously they're customers and we're working through it with them," he said.

Rabobank, who has the naming rights to the building, said the late-night activity had nothing to do with them.

Their branding was in the pictures only because it had naming rights to the building.

"The pictures are of another office in the building," a company spokeswoman said.

Employment lawyer Kathryn Dalziel
said the question for company bosses would be if the encounter damaged the reputation of the company.

The open windows, the lights on and the location opposite a bar meant the couple could not have a "reasonable expectation of privacy", she said.

"In my view, that made it an open place."

Marsh Ltd could have rules about the use of offices after hours or inter-office relationships, she said.

If a disciplinary inquiry found the encounter did not amount to serious misconduct, the couple might escape with a warning.

Marsh Limited was previously based in the PGC building that partly collapsed in the February 2011 earthquake.

The Press

Sex-romp couple 'out of the office'
JOELLE DALLY
Last updated 13:54 03/02/2015

http://www.stuff.co....t-of-the-office

Two insurance workers involved in a Friday night office romp appear not to be at work today while their bosses investigate.

Marsh Ltd said today the company was "working through it internally" and would not comment further.

When phoned on their office lines, colleagues said the man and woman were "out of the office", and the man did not answer his work cellphone.

The Marsh Ltd employees, who left the lights on during their romantic encounter in the Papanui Rd office, could lose their jobs or at least face formal warnings, employment lawyers say.

Carlton Bar and Eatery patrons across the road from the office posted photos of the incident on social media, and the pair were quickly identified.

A source close to the man involved, who holds a managerial role in the company, said the man was married with children.

His wife was not speaking to him and he had been crying "non-stop" since the romp went public, the source said.

The female colleague has deleted her Facebook page.

Online media expert Mark McGuire said the incident showed how much technology had allowed the world to instantly view people's private lives.

The pair were "reckless", he said, and it would be tough for them to argue that they believed no-one would see them, as a cleaner or colleague could have walked in.

"There is almost no border now between private and public because to publish is so easy," he said.

"It does make it harder to get away with something if your actions are made public in a way you can't deny.

"It's something we are going to see more of."

READ MORE: When nudity lands you in the news

Employment lawyer Kathryn Dalziel said earlier that the pair could not have a "reasonable expectation of privacy" when the encounter took place with windows unobscured, with the lights on and opposite a bar.

The question for Marsh Ltd bosses would be whether the encounter damaged the company's reputation.

If a disciplinary inquiry found the encounter did not amount to serious misconduct, the pair might escape with a warning, she said.

Marsh Ltd chief executive Grant Milne
said earlier that the company was taking the matter seriously.


"It's not the type of behaviour we condone. It's very disappointing, " he said.

- The Press
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#9 User is offline   tommy 

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Posted 04 February 2015 - 02:14 PM

it does give the impression , it is as being an animal as in other forms more freedom of sexual expression without the aboves as mentioned , all things take time , oh well
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#10 User is offline   tommy 

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Posted 04 February 2015 - 03:25 PM

there may be a viewing charge invoiced as in to whom were the viewers, as in whom can benefit and for what reasons .
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#11 User is offline   tommy 

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Posted 04 February 2015 - 03:27 PM

nothing has changed as what
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#12 User is offline   greg 

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Posted 04 February 2015 - 04:40 PM

View Posthukildaspida, on 03 February 2015 - 06:53 PM, said:

Some people need to familiarize themselves with the Human Rights Act.

How would the likes of Employment lawyer Kathryn Dalziel as well as those that filmed and published this material would feel if the same thing happened to them, or there family members and friends?

Quite seriously there are a number of breaches of law all around.

If people are lead to believe it's OK to film people that are visible in an office without there knowledge or consent, then that leads to further unsavory conduct elsewhere.




Insurance company workers caught in Christchurch office sex romp by patrons watching from pub

Date
February 3, 2015 - 5:36AM

476 reading now

Joelle Dally


http://www.smh.com.a...202-134e4r.html

A late-night romantic encounter in a Christchurch insurance office on Friday night that was witnessed by bar patrons across the road could cost the couple their jobs.

The Marsh Ltd employees, who left the lights on in the Papanui Rd building, were filmed and photographed by patrons at the Carlton Bar and Eatery who posted images on Facebook and Twitter.

The photos have attracted thousands of likes and hundreds of shares.

"The whole pub knew about it and was watching, while they were totally oblivious to it. And afterwards celebrating with wine," one man posted.


"They should have turned the lights out," said another.

Several patrons said the band stopped playing while most of the bar watched out the windows.

Marsh Ltd chief executive Grant Milne said the company was taking the matter seriously.

The man and woman had been identified and an employment investigation was under way.

"We know who is involved. It's obvious from the photos," Milne said.

Executives from the insurance broker company were flying down from Auckland this morning to help deal with the incident.

Milne would not say if the man and woman had returned to work this morning.

"We take these matters very seriously," he said.

"It's not the type of behaviour we condone. It's very disappointing."

Milne said the online publicity was embarrassing for the company.

"One of the challenges of social media is the inability to control things," he said.

Carlton owner James Murdoch
said the bar had been in contact with Marsh Ltd.

"Obviously they're customers and we're working through it with them," he said.

Rabobank, who has the naming rights to the building, said the late-night activity had nothing to do with them.

Their branding was in the pictures only because it had naming rights to the building.

"The pictures are of another office in the building," a company spokeswoman said.

Employment lawyer Kathryn Dalziel
said the question for company bosses would be if the encounter damaged the reputation of the company.

The open windows, the lights on and the location opposite a bar meant the couple could not have a "reasonable expectation of privacy", she said.

"In my view, that made it an open place."

Marsh Ltd could have rules about the use of offices after hours or inter-office relationships, she said.

If a disciplinary inquiry found the encounter did not amount to serious misconduct, the couple might escape with a warning.

Marsh Limited was previously based in the PGC building that partly collapsed in the February 2011 earthquake.

The Press

Sex-romp couple 'out of the office'
JOELLE DALLY
Last updated 13:54 03/02/2015

http://www.stuff.co....t-of-the-office

Two insurance workers involved in a Friday night office romp appear not to be at work today while their bosses investigate.

Marsh Ltd said today the company was "working through it internally" and would not comment further.

When phoned on their office lines, colleagues said the man and woman were "out of the office", and the man did not answer his work cellphone.

The Marsh Ltd employees, who left the lights on during their romantic encounter in the Papanui Rd office, could lose their jobs or at least face formal warnings, employment lawyers say.

Carlton Bar and Eatery patrons across the road from the office posted photos of the incident on social media, and the pair were quickly identified.

A source close to the man involved, who holds a managerial role in the company, said the man was married with children.

His wife was not speaking to him and he had been crying "non-stop" since the romp went public, the source said.

The female colleague has deleted her Facebook page.

Online media expert Mark McGuire said the incident showed how much technology had allowed the world to instantly view people's private lives.

The pair were "reckless", he said, and it would be tough for them to argue that they believed no-one would see them, as a cleaner or colleague could have walked in.

"There is almost no border now between private and public because to publish is so easy," he said.

"It does make it harder to get away with something if your actions are made public in a way you can't deny.

"It's something we are going to see more of."

READ MORE: When nudity lands you in the news

Employment lawyer Kathryn Dalziel said earlier that the pair could not have a "reasonable expectation of privacy" when the encounter took place with windows unobscured, with the lights on and opposite a bar.

The question for Marsh Ltd bosses would be whether the encounter damaged the company's reputation.

If a disciplinary inquiry found the encounter did not amount to serious misconduct, the pair might escape with a warning, she said.

Marsh Ltd chief executive Grant Milne
said earlier that the company was taking the matter seriously.


"It's not the type of behaviour we condone. It's very disappointing, " he said.

- The Press

The fact the guy lasted an hour is impressive.!
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#13 User is offline   tommy 

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Posted 05 February 2015 - 01:40 PM

got to impress the new girl , i spose. mr greg. and with an audience , what a couple
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#14 User is offline   hukildaspida 

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Posted 05 February 2015 - 04:34 PM

'Creep' filmed employee in toilet
BLAIR ENSOR
Last updated 07:35, February 5 2015

http://www.stuff.co....loyee-in-toilet

A business owner drilled a hole through a wall and secretly filmed one of his employees while she used the toilet.

Kent Roger Moore, 48, from Christchurch, was only caught after the victim found a video of herself as she trawled through photos of a staff party on one of the company's computers.

Tears streamed down her face in the public gallery at the Christchurch District Court yesterday as Moore was sentenced to five months' home detention.
SPY HOLE: Hidden by the toilet roll.

SPY HOLE: Hidden by the toilet roll.

At a hearing in December, he had admitted 15 charges of intentionally making an intimate visual recording, a crime that carries a maximum penalty of three years' imprisonment.

In a victim impact statement the 26-year-old woman, whose name is suppressed, described Moore as "a little-man syndromed controlling creep".

"I feel so betrayed and embarrassed. These are all private things that no-one should ever see."

Late last year she received $50,000 from Moore, after her lawyer, Kerry Cook, threatened to bring civil action against him for a breach of privacy.

At yesterday's hearing, lawyer Jonathan Eaton QC fought to have Moore's name permanently suppressed on the basis that publication would cause extreme hardship for his family, particularly his identical twin brother.

"This is not run of the mill - this is very much out of the ordinary - and it would be unfair and unjust for [Moore's family] if there wasn't a suppression order," Eaton said.

Police and the victim opposed suppression.


Judge David Saunders said: "The balancing exercise I have carried out does not come down in favour of a final order."

Moore's offending occurred while he was the owner of Christchurch-based firm Specialised Panel & Paint. He is no longer associated with the company and has recently gained part-time employment.

According to the summary of facts, staff at the business noticed Moore following female staff and clients when they went to the bathroom in 2013 and early last year.

He would enter the adjacent male toilets.

In August, the victim, while checking photos of a staff party on one of the firm's computers, found a 17 second video of herself using the toilet.

It looked like it had been recorded through a hole between the male and female toilets.

Inquiries revealed a small hole had been drilled through the wall but was hidden from view underneath the toilet roll holder in the men's toilet.

In her victim impact statement, the woman says she was "absolutely shocked" at the discovery.

"I was so angry with this man who I thought I could trust."

The summary of facts said police raided Moore's home and seized electronic equipment. On an external hard drive they found 15 videos that contained intimate footage of the victim using the toilet.

An examination of Moore's cellphone also found many images showing women in various stages of undress, the summary said.

The victim's statement said the offending had caused her huge distress and would live with her forever.

- The Press
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#15 User is offline   hukildaspida 

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Posted 05 February 2015 - 04:48 PM

Some of us also recall an incident in France not that long ago as well involving a prominent British couple.

Isn't the offender in that case still awaiting criminal charges?

They were certainly ordered by the courts to not publish anymore images and to hand over the ones they had.


Nicole Moreham: Sex with the office lights on - your rights
11:40 AM Thursday Feb 5, 2015 70 comments

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Opinion
Privacy

http://www.nzherald....jectid=11397134

Yes, you can have a reasonable expectation of privacy in a publicly visible place, says privacy law expert Nicole Moreham

Do two people who have sex in an office block, unwittingly in full view of a pub full of people, have any legal rights if one of those onlookers decides to film the incident and post the footage on the internet? The answer is probably "yes".

Civil law


Let's start with the civil (non-criminal) law. If one of the pair wanted to sue the person who put the film on the internet, their main claim would be for compensation for breach of privacy and/or an order that the material be removed. In order to win, they would have to show two things: first, that they had a reasonable expectation of privacy in what was published (i.e. the video of the so-called "sex romp") and second, that the publicity given to the video was highly offensive.

PAM CORKERY: Voyeurs took this way too far ... shame on them

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.

- NZ Herald

By Nicole Moreham

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#16 User is offline   hukildaspida 

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Posted 09 May 2016 - 05:12 PM

Skinny the Cat catches peeping tom in Auckland's Grey Lynn

ALICE PEACOCK

Last updated 17:03, May 9 2016


http://www.stuff.co....lands-grey-lynn

http://www.stuff.co....62770220657.jpg



Skinny the cat has been credited with catching a peeping tom in Auckland's Grey Lynn.

A heroic cat is being given credit for helping police catch and arrest an alleged "peeping tom" in Auckland's Grey Lynn.

The swanky Auckland suburb has been plagued by a night creeper though police refused to say if Monday's arrest was related to the previous incidents.

Grey Lynn resident Carly Marr gave credit to her cat Skinny who alerted her to the man's presence on her Sackville St property around 2.30am on Monday.

"We were just about to go to bed when I went outside to have a ciggy," she said.

"My cat came flying down from the top of the driveway and she looked pretty scared," the 33-year-old said.

READ MORE:
* Auckland peeping tom strikes again
* Peeping tom takes advantage of hot nights to film through open windows: police


Marr said she walked around the corner and saw a man squatting down, trying to look through the blinds of her window whilst holding a phone.

She yelled at him while following him, then rushed back to the house where she grabbed her brother.

The pair jumped into her car and followed the man while they called police, who swiftly arrived at the scene with a sniffer dog.

Avondale police confirmed they arrested and charged a man in relation to the incident in Grey Lynn around 2.30am.


Court documents showed a 59-year-old Auckland man was charged with one count of entering a Grey Lynn residence with intent to commit an imprisonable offence.


Detective Senior Sergeant Marcia Murray
said inquiries were continuing into other incidents in the Grey Lynn area.

Marr said she was more angry than scared when she spotted the man at her house, as she knew what he was up to from posts on a local Facebook page.

"We had just actually been joking about it that morning... It was quite freaky," she said.

The heroic cat behind it all, Skinny, had been a stray before Marr had taken him in several years ago.

"Now she's a big fat cat that's a hero," Marr said.

Murray said Auckland residents should be viligant about home security, and make sure windows are locked at night.

Police were keen to hear from anyone with information about the offender or any other suspicious activity in the area.

- Stuff
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