Glaring Paradox or Privacy for our Time: Whether Once Public Facts Should Gain Privacy Protection in Law

Abstract

The present research asks whether or not once public facts should gain privacy protection in law and concludes that, in appropriate circumstances, they should. The research employs traditional legal research tools like doctrinal research, to articulate and assess the current law regarding privacy, and law reform methodology, to create a package of amendments to New Zealand’s privacy laws to ensure that once public facts gain the protection they deserve. The research has considered the place of once public facts within theoretical concepts of privacy. A literature review of commonly cited theories of privacy and privacy in public has argued that once public facts have been a component of most of the best known concepts of privacy. The research has also considered why society should care about once public facts. The research argues that failure to protect once public facts puts at risk core values at the heart of privacy – liberty, rehabilitation, dignity and autonomy, and can cause substantial harm. The research then considers whether or not the predominant legal mechanisms for privacy protection in New Zealand can protect once public facts. The analysis considers the statutory protections under the Privacy Act 2020 and the Harmful Digital Communications Act 2015 (HDCA), along with the common law cause of action for public disclosure of private facts. The research determines that appropriate protection for once public facts requires a package of amendments across all of these legal mechanisms, including a new erasure tool in the Privacy Act, refinements to the disclosure tort and amendments to the HDCA. This package of amendments will not only help to protect once public facts in appropriate circumstances, it will bring New Zealand’s privacy laws in line with international best practices and contribute to the ongoing development of privacy law in a structured and principled manner for the benefit of all New Zealanders. It is the present research’s linkage between the concepts of privacy and once public facts and its contention that protecting once public facts contributes to supporting the core values of liberty, rehabilitation, dignity and autonomy, as well as the recommended package of law reforms, that make this research an original contribution to New Zealand law.