I. Legal Framework
Constitutional privacy framework
Article 21 of the New Zealand Bill of Rights Act 1990 states "Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise."1 The New Zealand Court of Appeal has interpreted this provision in several cases as protecting the important values and interests that comprise the right to privacy.2
Data protection framework
New Zealand's Privacy Act of 1993 came into force on July 1, 1993, and has been amended several times.3 It regulates the collection, use and dissemination of personal information in both the public and private sectors. It also grants to individuals the right to have access to personal information about them held by any agency. The Privacy Act applies to "personal information," which is any information about an identifiable individual, whether automatically or manually processed.4 Recent case law has held that the definition also applies to mentally processed information.5 The news media are exempt from the Privacy Act in relation to their news activities.
The Act creates 12 Information Privacy Principles generally based on the 1980 Organization for Economic and Cooperation Development (OECD) Guidelines and the information privacy principles in Australia's Privacy Act 1988. In addition, the legislation includes a new principle that deals with the assignment and use of unique identifiers. The Information Privacy Principles can be individually or collectively replaced by enforceable codes of practice for particular sectors or classes of information. At present, there are three complete sector-specific codes of practice in force: the Health Information Privacy Code 1994, the Telecommunications Information Privacy Code 2003, and the Credit Reporting Privacy Code 2004 (which came into full effect on April 1, 2006).6 There are several codes of practice that alter the application of single information privacy principles: the Superannuation Schemes Unique Identifier Code 1995, the Justice Sector Unique Identifier Code 1998, and the Post-Compulsory Education Unique Identifier Code 2001.7 In addition to the information privacy principles, the legislation contains principles relating to information held on public registers; it sets out guidelines and procedures in respect to information matching programs run by government agencies, and it makes special provisions for the sharing of law enforcement information among specialized agencies.
The Broadcasting Act of 1989 requires broadcasters to maintain standards that are consistent with "the observance of good taste and decency . . . the maintenance of law and order and the privacy of the individual."8 It establishes a Broadcasting Standards Authority (BSA) to oversee enforcement and to rule on complaints. The BSA has ruled on several privacy cases.9 Recently, particular controversy surrounded several television broadcasts that unreasonably intruded on the privacy of children. In March 1999, one program, widely publicized in advance, revealed the results of a DNA paternity test live on TV with mother, father and young child present.10 The Broadcasting Amendment Act of 2000, which came into effect on July 1, 2000, empowers the BSA to encourage the development and observance by broadcasters of codes of broadcasting practice in relation to the privacy of the individual. In August 2006, the Broadcasting Standards Authority issued an Advisory Opinion amending its Privacy Principles; these principles are taken into account by the Authority when considering privacy complaints.11
The Crimes (Intimate Covert Filming) Amendment Act 2006 came into force on December 5, 2006.12 The Act amends the Crimes Act 1961 by creating three new offense provisions relating to the making of intimate visual recordings, the possession of intimate visual recordings, and the publishing, import, export, or sale of intimate visual recordings. The legislation is aimed at the surreptitious visual recording of another person in intimate circumstances without the person's consent or knowledge and in circumstances that the person would reasonably expect to be private (such as secret recording with a mobile phone camera of people undressing in a locker room). This legislation follows on from recommendations made by the Law Commission in 2004.13
- 1. http://www.legislation.govt.nz/browse_vw.asp?content-set=pal_statutes
- 2. Tim McBride, "Recent New Zealand Case Law on Privacy: Part I: Privacy Act and the Bill of Rights Act," Privacy Law & Reporter, January 2000, at 107.
- 3. http://www.legislation.govt.nz/browse_vw.asp?content-set=pal_statutes
- 4. See Paul Roth, "What is 'Personal Information'?," 20(1) New Zealand Universities Law Review 40 (2002).
- 5. See Re Application by L ‚Äì Information stored in person's memory (1997) 3 HRNZ 716 (Complaints Review Tribunal).
- 6. http://www.privacy.org.nz/privacy-act/
- 7. http://www.privacy.org.nz/privacy-act/codes-of-practice/
- 8. http://www.legislation.govt.nz/browse_vw.asp?content-set=pal_statutes
- 9. http://www.bsa.govt.nz
- 10. http://www.bsa.govt.nz
- 11. http://www.bsa.govt.nz/codesstandards-privacy.php
- 12. http://www.legislation.govt.nz/browse_vw.asp?content-set=pal_statutes
- 13. Study Paper 15, Intimate Covert Filming, Wellington, June 2004.