Hosking loses appeal against children's pictures being published

3.30pm UPDATE

Broadcaster Mike Hosking today lost his legal battle to stop New Idea publishing photos of his twin daughters, but the magazine says it no longer plans to publish them.

Five Court of Appeal judges unanimously dismissed the appeal of Hosking and his estranged wife, Marie, against a High Court decision allowing New Idea to publish pictures of Mrs Hosking pushing Ruby and Bella in a stroller in an Auckland street in December 2002 when they were 18-months-old.

The judges, headed by court president Justice Gault, also rejected the Hoskings' bid to extend legal liability for invasion of privacy.

New Idea general manager Don Hope told NewstalkZB today the magazine was not planning to publish the pictures, and had opposed the Hoskings' court action to ensure the future freedom of the press.

The Court of Appeal hearing last August was told the Hoskings feared the twins might be kidnapped if the photos taken by Simon Runting were published.

Existing common and statute law allows the media to publish pictures of people taken in a public place without their permission.

In their written judgment, Justices Gault and Blanchard said the real concern of the Hoskings was photos being published which identified their children and associated them with a "celebrity" parent.

The judges accepted the sincerity of the Hoskings' anxiety for the wellbeing of their children and their concern at the prospect of unwanted media attention.

"They wish to protect the freedom of the children to live normal lives without constant fear of media intrusion," the judges said.

"They feel that if publication of the present photographs is prevented there will be no incentive for those who, in the future, might pursue the children in order to capture marketable images...

"We are inclined to the view, however, that the concerns are overstated."

Justices Gault and Blanchard said they did not see "any substantial likelihood of anyone with ill intent seeking to identify the children from magazine photographs.

"We cannot see the intended publication increasing any risk that might exist because of the public prominence of their father."

Publication of the photos did not breach a "reasonable expectation of privacy", they did not show where the children lived or any information that might be useful for someone with ill intent.

The judges said they were not convinced a person of "ordinary sensibilities" would find publication of the photos highly offensive or objectionable, despite young children being involved.

"We cannot see any real harm in it," they said.

In his separate judgment, Justice Keith said a proposed general tort of unreasonably publicising private information should not be recognised in New Zealand law.

Such a move would limit the "centrally important" right of freedom of expression, it would depart -- without good reason -- from long established protections of personal information, and was not justified under the Bill of Rights.

In his judgment, Justice Anderson, said a new limitation on freedom of expression needed greater justification than someone's feelings being wounded by publishing true information that was personal but not legally confidential.

"Nor is there any demonstrable need for an extension of civil liability," he said.

"Peeping, peering, eavesdropping, trespassing, defaming, breaking or exploiting confidences, (and) publishing matters unfairly, are already covered by the legislative array.

"What is left to justify the breach of the right to freedom of expression?"

In a statement released by his lawyers, Hosking said he was pleased New Idea had now decided not to publish the photos.

He also said the Court of Appeal had opened the door to the protection of privacy.

The court found that there was a right of action for breach of privacy for publishing facts where there was a reasonable expectation of privacy and where publication would be considered highly offensive, the statement said.

The court awarded costs of $18,000 against the Hoskings.

- NZPA