Hosking case stirs fears over press freedoms

Broadcaster Mike Hosking and his estranged wife Marie Hosking have been accused of seeking to put their twin daughters on a pedestal in trying to ban a women's magazine from publishing the toddlers' photos.

They are seeking an order preventing New Idea and photographer Simon Runting from using photographs of the girls until they are 18.

The breadth of their application to Justice Tony Randerson at the High Court in Auckland has been described as breathtaking by New Idea's lawyer, Julian Miles, QC, who said that such a ruling would have a severe impact on the press and media generally.

"The plaintiffs are inviting this court to place the privacy rights of these children and in fact all children under the age of 18 on a pedestal to the detriment of freedom of expression," Mr Miles told the court.

Runting photographed Mrs Hosking and the two 18-month-olds in Newmarket just before Christmas.

The Hoskings' lawyer, Willie Akel, earlier told the judge that the girls' right not to have their image commercially exploited without consent was the sole issue in the case.

The couple had never sold their story or pictures for money, he said.

Mr Miles said that nevertheless several articles in which the Hoskings co-operated had referred to the children as well as issues of infertility treatment. "Mike Hosking must take the good with the bad - the public are entitled to be informed of both once the information is placed in the public domain."

The Hoskings have argued that the photos could not be published without consent.

But Mr Miles said there was no statute against photographing someone without their consent.

If a photographer was in a public place, he or she could even photograph over someone's back fence.

An English judge, however, had suggested that use of a telephoto lens to photograph someone from a distance in a private act could be seen as a breach of confidence.

Mr Miles said that if consent were required, it would also create an obligation on members of the public to obtain the consent of anyone being photographed in a public place.

There was an exception under the privacy legislation for news organisations and the Bill of Rights Act did not expressly endorse the concept of breach of privacy, Mr Miles said.

New Idea's publishers, Pacific Magazines, are supported by the Commonwealth Press Union and publishers ACP Media.

Bruce Gray, appearing for the CPU, said that freedom of expression was the cornerstone of democracy and was protected and highly valued in New Zealand.

Under the common law in New Zealand - and in Britain, Australia and Canada - there was no tort of breach of privacy, he said.

(Tort is part of common law relating to individuals' responsibilities.)

In Britain and Australia, privacy interests were protected through existing avenues, including actions for breach of confidence.

If there were to be a developing recognition of privacy interests within common law, Mr Gray suggested the breach of confidence route taken by Britain and Australia.

He said freedom of expression was not absolute and needed to be weighed against competing freedoms, such as the right to a fair trial.

Where some limitation was needed to give effect to a competing right, it should be the least possible.

Freedom of expression was a fundamental right from which exceptions had to be justified.

The photos of the girls were taken in a public place and depicted normal behaviour, Mr Gray said.

"If the media are to be prevented from publishing or broadcasting images of this type, they will be prevented from doing what any other citizen may do - namely, relate what has been observed in a public place."

Stephen Mills, appearing for ACP Media, disputed Mr Akel's assertion that there was a tort of invasion of privacy and argued that there was no basis that a tort of privacy should be accepted in New Zealand.

"Parliament has clearly indicated that it does not support a general law of privacy, on which the plaintiff's submissions depend," said Mr Mills.

The Law Commission was now considering if further privacy protections were needed. "The courts should not pre-empt the process."

Subjecting the news media to a tort of privacy would be contrary to the clear intent of Parliament in exempting the news media in news-gathering activities under the 1993 Privacy Act.

Justice Randerson reserved his decision.