Driver v RNZ & Ors [2019] NZHC 3275
This decision is informative with respect to “late knowledge” dates in defamation claims, and invasion of privacy claims—a developing area of the common law.
The plaintiff (Ms Driver) had sued the five defendants, all media publications, in defamation and for invasion of privacy. The defendants applied to strike out all causes of action in privacy on the basis the claims were untenable, and applied to strike out the money claims in defamation on the basis those claims were barred by the Limitation Act 2010 or because the harm suffered was less than minor.
Limitation period for defamation claims
A plaintiff suing in defamation has only two years within which to commence a claim. A defendant will have a defence to a claim in defamation if the defendant can prove the date on which the claim is filed is at least two years from:
(a) The date of the act on which the claim is based – i.e. the publication (the claim’s “primary period”); or
(b) The date when the claimant has late knowledge of the claim (the “late knowledge date”).[1] The late knowledge date is defined in s 14 Limitation Act as the earlier of the dates on which the claimant either gained knowledge, or ought reasonably to have gained knowledge, of the facts specified in s 14(1).
In this case, Ms Driver had filed her claims in defamation against the first to fourth defendants on 25 May 2017. To be within the limitation period then, her knowledge of the relevant facts could have come no earlier than 25 May 2015. In relation to the fifth defendant, her claim was made on 20 July 2017, meaning her knowledge of the relevant facts would have had to be no earlier than 20 July 2015 to be within the limitation period.
In order to hear the strike-out applications before trial, the Court first had to determine the question of late knowledge date for each of the publications relied upon in any claim in defamation against the defendants not otherwise struck out.
The defendants’ position was that it was not reasonably arguable that Ms Driver did not know, or ought not to have reasonably known, of the facts required in order for her to file her claims before the dates in question.
Ms Driver denied that all her claims for the first to fourth defendants relied on a late knowledge date subsequent to 25 May 2015. Because there was continuing publication of some of the allegedly defamatory comments – i.e. continued publication beyond 25 May 2015 – those claims were not dependent on her late knowledge dates being accepted by the Court. She did accept that her claim against the fifth defendant was dependent on the acceptance of her claimed late knowledge dates, but said it was reasonably arguable that she did not know, nor ought to have reasonably known, all the facts specified in s 14(1)(a) to (e) of the Limitation Act.
Principles
Clark J reviewed the principles relating to strike-out. She noted that where a defendant sought to have a cause of action struck out as statute-barred, the Court must be satisfied that the claim is “so clearly statute-barred” that the claim “can properly be regarded as frivolous, vexatious or an abuse of process. Here, if the defendants demonstrated the proceeding was commenced after the period allowed by the Limitation Act, they would be entitled to a strike-out order unless Ms Driver showed she had an arguable case for an extension or postponement which would bring the claim back within time.
Regarding knowledge of the relevant facts for the purposes of s 14(1), Clark J reviewed the parties’ positions and various authorities, and concluded that a claimant will have knowledge when he or she “knows enough to make it reasonable for him to begin to investigate whether or not he has a case against the defendant.” “A plaintiff cannot postpone the start of the limitation period by shutting her or his eyes to the obvious.”[2] She noted that this approach was consistent with the principle underlying the short limitation period for defamation – that a plaintiff should protect her or his reputation with vigour.
So what is “knowledge”? Suspicion would not be enough, but reasonable belief will normally suffice. It does not mean knowing for certain and beyond possibility of contradiction.[3]
Ms Driver’s knowledge
Ms Driver bore the onus of establishing an arguable case that there was a late knowledge date – i.e. why it was not reasonable for her to have gained knowledge of relevant facts prior to the late knowledge dates she had pleaded.
In overview of Ms Driver’s evidence, it took over two years for her to be exonerated in India – an intensely difficult situation for her. By the time she was permitted to return to NZ, the primary limitation period for the bulk of the publications had expired. It was only once she returned to NZ that she was able to discover the greater extent of defamatory publications about her – because while in India she was deprived of her economic freedom, her freedom to communicate and her freedom of movement.
Because Ms Driver was in custody when the publications about which she complained were first published, it could not be reasonably expected that she should have known about the facts giving rise to her claims at that time. Therefore s 14(2) was surmounted and so the next step was to establish – what was the late knowledge date for each of Ms Driver’s claims? It would be either the date when she actually gained knowledge of the particular publication and to whom it was attributable, or the date on which she ought reasonably to have gained knowledge of those two facts.
The dates of significance were 25 May 2015 and 20 July 2015 – i.e. two years prior to Ms Driver commencing the proceedings against the various defendants. Clark J dealt separately with the publications which were not republished (which I will refer to as the non-continuing publications), and the publications which remained online after 25 May 2015.
Dealing first with the non-continuing publications, Clark J accepted the defendants’ submissions that Ms Driver had constructive knowledge of the potential claim well before 25 May and 20 July 2015 (respectively), given her family members’ awareness of the publications, the fact that she was advised by both Indian police and the NZ High Commission that her case had “made it to the NZ media”, by February 2015 she had actual knowledge of the most significant media coverage – she had previously searched online and seen a number of articles, including some which were the subject of defamation claims which were struck out by Ellis J in an earlier decision – and she had contacted a NZ defamation lawyer advising she was “seriously considering taking action against NZ media”, and was advised at that time there was a two-year time limit. “When Ms Driver contacted Mr Price because she considerd she had been defamed and she was contemplating legal proceedings, this was the moment when Ms Driver knew enough to make it reasonable for her to begin to investigate.”[4] Clark J set Ms Driver’s late knowledge date at 14 February 2015, the day she communicated with Mr Price.
Her claims against the first to fourth defendants for publications that were not republished were therefore barred by the Limitation Act insofar as they related to publications made before 25 May 2015. Her claim against the fifth defendant was also barred.
Clark J carefully considered Ms Driver’s submission that it would be unjust to find that she should have known all of the publications when she did not know what she was looking for, and that she could not issue proceedings until she knew the prcedise defamatory words on which to sue. However, Clark J stated “all that Ms Driver was required to do to ensure any claim did not become time-barred was to stop the clock. The particularity with which a claim in defamation must be pleaded could have been perfected at a later time. Revealingly, Ms Driver has amended her statement of claim six times. Ms Driver knew of the publicity and she believed she had been defamed. The fact she may have been inhibited by a lack of particulars did not mean time had not begun to run for the purpose of the Limitation Act.”[5]
With respect to the continuing publications, the defendants argued the defamation claims ought to be struck out on the basis that the publication within the jurisdictional time limit was minimal, and any damage to the claimant’s reputation was insignificant. On that basis, they said the defamation claim in such circumstances amounted to an abuse of
Clark J adopted the formulation of that principle which was most favourable to the plaintiff – “if a defendant can show their statement has caused less than minor harm to the plaintiff’s reputation, that will defeat a defamation claim”.
The defendants argued that Ms Driver could not have suffered more than minor harm to her reputation as a result of any publications subsequent to 25 May 2015 – they said any damage to her reputation was done by the initial publications in December 2014. They called expert evidence regarding the interest in online news articles over time and citing the number of “views” the relevant publications had since 25 May 2015.
Given that evidence, Clark J considered it was not seriously arguable that Ms Driver suffered more than minor reputational harm from the publications remaining online after 25 May 2015, as too few people would have seen them. Accordingly, the remaining defamation claims were also struck out as disclosing no tenable cause of action.
Relief
Clark J then turned to consider whether declaratory relief, as opposed to monetary relief, could be treated differently. Ms Driver submitted that if the conlcusion was reached that her claims must be struck out, Clark J should do so only wih respect to the monetary claims and not her claims for declaratory relief pursuant to s 24 of the Defamation Act.
Clark J was satisfied that the claims for declaratory relief so closely resembled the claims for monetary relief, that it would be inequitable to allow Ms Driver to proceed with the declaratory claims after the expiry of the limitation period for the money claims. Thus the claims for a declaration in terms of s 24 of the Defamation Act were also struck out.
Invasion of privacy claims
The claims for breach of privacy related to publications where Ellis J had determined in an earlier decision that the defamation claims were statute-barred.
The cause of action for invasion of privacy requires a plaintiff to demonstrate:
(a) The existence of facts in respect of which there is a reasonable expectation of privacy; and
(b) Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.
If those elements are established, a defendant may raise a defence that publication was in the public interest.
Ms Driver pleaded invasion of privacy in relation to four matters in which she said she had an expectation of privacy:
(a) The fact of her arrest and the details of the allegations against her;
(b) Her passport details and residential address;
(c) The reactions of her family members to the news she had been arrested; and
(d) Video footage of her reaction to being confronted with the allegations.
She argued the publications were highly offensive because they were defamatory, unnecessarily sensational and factually incorrect.
The defendants’ position was that she did not have a reasonable expectation of privacy in relation to any of those facts, and even if she did, the publication would not be considered highly offensive to an objective reasonable person. Regarding the offensiveness, the defendants said Ms Driver was conflating privacy and defamation principles and suggested she was bringing the privacy claims in an attempt to side-step Ellis J’s earlier decision to strike out the defamation causes of action in relation to these publications.
Again, given this was a strike-out application, the burden lay on the defendants to demonstrate the privacy claims were untenable.
The tort of privacy
Clark J noted that assessing whether there is a reasonable expectation of privacy would always be a contextual exercise requiring consideration of the particular circumstances of the parties, the nature of the information and the circumstances of the alleged invasion of privacy. Those factors must be considered in light of contemporary standards of behaviour, but cross-checked against a minimum standard of privacy.[6]
In terms of what is “highly offensive”, it must be assessed from the perspective of a reasonable person in the position of the plaintiff, as opposed to a reasonable bystander. It is the publicity, and not the information, that must be highly offensive. The Court must consider whether the breach is sufficiently serious and offensive that the law should intervene. The nature of the information, circumstances and extent of the publicatioonsidered that whether an individual has an expectation of privacy in the fact of their arrest was a fact-specific question, and did not have a universal answer.
She noted that the privacy tort is different from defamation: the focus of the privacy tort is on hurt and distress, rather than standing in eyes of others. Thus the objectional disclosure may be entirely factually accurate, but still the subject of a successful privacy claim.
After an interesting discussion of privacy law, reputation and arrest/police investigation, Clark noted that the stigma associated with a criminal investigation could have both an effect on one’s reputation and cause hurt and distress. The fact of investigation is true, and so this is not a defamation issue.
Clark J considered whether, hypothetically, a person in NZ in a comparable position to Ms Driver (essentially the Police investigative stage, prior to charges having been laid) would have a reasonable expectation of privacy. She ultimately concluded that they would. Although the allegations were relatively serious, Ms Driver was otherwise not a person of public interest – it was the nature of the allegations against her, and not her identity, that made her arrest newsworthy. Nor did the Indian police have operational reasons (e.g. to assist their investigation) for identifying her to the public.
Turning back to Ms Driver’s actual situation – i.e. having been arrested in India –Clark J heard evidence about the Indian criminal justice system and noted that the courts become involved much earlier, and the process is more public, than in NZ. Those factors pointed against a person in India enjoying a reasonable expectation of privacy until they are formally charged with an offence.
However, Clark J considered it reasonably arguable that the privacy tort existed to protect values and interests recognised in the context of NZ’s social and cultural norms, and so a NZ citizen, even when travelling or living abroad, is entitled to expect the NZ media to respect those interests irrespective of differing norms or procedures in the country where the events take place. In other words, it was reasonably arguable that an expectation of privacy should be determined in the context of its publication (in NZ) rather than in the context of the events that were publicised (in India). This could mean placing greater emphasis on the fact that Ms Driver was only arrested – not charged – when considering whether she had a reasonable expectation of privacy. This was a novel point and would need to be addressed at trial.
The defendants’ position was that any reasonable expectation of privacy was lost by the time they published their respective stories, because by then the Bengaluru Police had publicised details of the allegations on Facebook and Twitter, and her arrest had been widely reported on by Indian media.
Clark J considered the purpose of the privacy tort, and noted that it is intended to address “the denigration and embarrassment caused to an individual whose private life is intruded upon, including by unwarranted publicity.” The tort can therefore accommodate varying levels of publicity – e.g. private facts about an individual might be known by their close friends and family, or the community in which the person lives and works, but not known to the world at large. An invasion of privacy is characterised by the spreading of the private information outside the circle of people already aware of it.[8]
On that basis, Clark J’s view was that it was “reasonably arguable an invasion of privacy could occur when publicity given to private information is increased by an order of magnitude”[9] – for example, international media attention given to the domestic matters of another country. Vast numbers of people who otherwise might never had known about the private facts in question, have the facts drawn to their attention, creating fresh humiliation for the complainant.
If Ms Driver could establish she otherwise had a reasonable expectation of privacy, she might also reasonably have expected she would not be identified to the NZ public even though different rules might apply in India. So, it was not untenable for Ms Driver to argue that the NZ media ought not be able to ‘coat-tail’ on publicity in a foreign jurisdiction when that same publicity would constitute an invasion of privacy had it occurred in NZ.
Clark J noted that the defendants might be able to explore at trial the extent to which the NZ public would have been aware of the articles appearing in the Indian media.
Highly offensive
This aspect of the claim also raised a novel question: to what extent is the way in which private facts are presented relevant to the question whether a reasonable person would find their publication highly offensive?
Ms Driver’s position was that the publications were defamatory, unnecessarily sensational and factually incorrect.
Are privacy actions limited to true facts, as opposed to untrue facts? It has previously been said that it is this aspect which distinguishes the privacy tort from defamation.[10] Clark J noted that the distinction may not be so simple. A single publication may contain a mixture of true and false facts. For example in this case, articles accurately reported that Ms Driver had been arrested, and incorrectly reported that she had confessed.
Clark J then considered the extent to which defamation-related principles can be used when assessing whether a publication is highly offensive. She noted that the US have a “false light” tort, and suggested that cases under that tort in the US could inform the development of the privacy tort in NZ in relation to publications containing a mixture of true and false private facts.
Clark J concluded it was reasonably arguable the defendants’ publications were highly offensive, noting it was not just the nature of the private information, but also the circumstances and extent of the publication, that were relevant to determining whether the reasonable person would consider publication highly offensive. The question of whether the circumstances of publication extends to inaccurate or embellished reported was still open to be determined
Clark J considered that Ms Driver may arguably have enjoyed a reasonable expectation of privacy in the moment of being confronted about the allegations, even if she had no such reasonable expectation in relation to the fact of her arrest. The arrest may have been one of the most consequential moments of Ms Driver’s life, and how she reacted was likely to be intensely personal. The fact it was footage taken in her private hotel room bolstered this further. Further, Clark J was satisfied that Ms Driver had a reasonably arguable case that a reasonable person in her situation would find publication of the footage to be highly offensive. It was possible that the combination of the intensely personal nature of the moment, the intimate detail provided by the video footage, and the widespread nature of the publicity (a national audience) could meet the highly offensive threshold.
Clark J was satisfied that she should strike out the claim regarding the publication of Ms Driver’s address and passport details. While Ms Driver may have had a reasonable expectation of privacy regarding those personal details, Clark J was satisfied no reasonable person would find the publication of those details to be highly offensive. Whilst personal, they were not embarrassing. Clark J noted that the photograph of the passport and address were contained within the Bengaluru City Police Facebook post, and the Stuff article simply contained a hyperlink to that Bengaluru Police Facebook post. Clark J considered it important that the claim here was not against the Bengaluru City Police.
Finally, Clark J ordered struck out the reactions of Ms Driver’s family to her arrest. Ms Driver could not have a reasonable expectation of privacy of the reactions of others – and any privacy they had in their reactions was not hers to protect.
Copyright Steve Keall, all rights reserved, 2020.
Written by Steve Keall & Katy Barker
[1] At [22].
[2] At [31]
[3] At [32]
[4] At [55]
[5] At [63]
[6] At [96]
[7] At [97]
[8] At [127].
[9] At [128].
[10] A v Hunt [2006] NZAR 577 (HC) at [58].