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Abandoning The “High Offensiveness” Privacy Test

N.A. Moreham

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Abstract

This article argues that the New Zealand torts of giving publicity to private information and intruding upon solitude and seclusion would better reflect the true nature of the privacy interest if the requirement that any alleged privacy interference be “highly offensive to an objective reasonable person” were abandoned. Courts should, instead, determine what is prima facie private by reference to the plaintiff’s “reasonable expectation of privacy” in respect of the information or activity in question. There are three main reasons for this: first, the high offensiveness test operates in a manner which is both uncertain and unpredictable; second, New Zealand courts applying the high offensiveness test have taken too narrow a view of the nature of privacy harms; and third, the test is unnecessary.