By MATHEW DEARNALEY
Television New Zealand presenter Mike Hosking and his estranged wife have lost a courtroom bid to stop a women's magazine from publishing photographs of their twin toddler daughters.
The High Court at Auckland ruled yesterday there was nothing to stop New Idea from publishing pictures taken of Bella and Ruby being pushed by their mother, Marie Hosking, in a stroller through Newmarket at the height of the Christmas shopping season.
While the magazine has agreed before Judge Tony Randerson to withhold publication until late on Wednesday, to allow the Hoskings time to decide whether to lodge an appeal, news organisations are hailing the decision as crucial to media freedom.
Mr Hosking declined to comment last night, but he and his wife have hired new lawyers to assess their appeal chances.
Constitutional law expert Mai Chen confirmed she was now acting for the Hoskings with Bill Wilson, QC, and would apply next week for a brief stay of the publication ruling to allow full consideration of potential avenues for an appeal.
Commonwealth Press Union lawyer Bruce Gray said the precedent established by a ban the Hoskings sought on publishing any photographs until their 23-month-old girls turned 18 would have severely hampered newspapers and magazines everywhere.
"The judgment that New Zealand law does not recognise a tortious [common law] cause of action based on the publication of photos taken in a public place is very welcome," he said.
But he stressed that the ruling did not give the media open slather to publish everything photographed in public, such as pictures of a man who successfully sued the British Government in the European Court over surveillance camera prints of his attempted suicide.
"In rare examples it may be inappropriate to take photos in a public place, but existing law covers that, and it is not necessary to develop a wholly new tort."
Justice Randerson said such exceptional cases could be dealt with as unlawful breaches of confidence, and it should be up to Parliament rather than the courts to plug any perceived gaps in privacy law.
He said that while not everyone would be interested in material about celebrities or their families, it was not for the courts in cases such as the Hoskings' to decide what was appropriate for people to see, or to act as "some form of judicial censor".
He accepted the concerns of news organisations that an effective right of parental veto would cause practical difficulties for them, as well as amounting to "a significant inhibition on civil liberties as they are understood in this country".
"What, for example, would be the position if the child in question were only incidentally shown in a crowd scene? How would the news media know whether the child or the parents had agreed to the publication of the shot?"
The judge said people were naturally sympathetic to children, especially the very young, who had no choice about their parents' careers.
But while declaring that the courts would not hesitate to protect children when circumstances warranted, their welfare needed to be balanced against competing interests such as the right to freedom of expression enjoyed by the media.
Judge Randerson said the Hosking case was far removed from those of others where courts had acted to protect children such as sexually exploited youngsters identified in a television documentary last year, and the unborn infant of a would-be porn star.
He said he did not overlook the Hoskings' "genuine concerns" for the safety of their children if their photographs became public, but there was nothing to suggest any serious risk, and their appearance would change fast as they grew older.
He accepted a submission by Julian Miles, QC, for New Idea publisher Pacific Magazines that the Newmarket shopping centre on a pre-Christmas Saturday would be the last place where someone would seek solitude or seclusion.
It was also undeniable that the Hoskings, who separated in August, deliberately publicised the fact before the twins were born that they were conceived artificially and that the pair allowed themselves to be photographed against that background.
The judge said Mr Hosking was not be criticised for deliberately courting publicity both before and after the birth, and he acknowledged that a public figure did not forfeit all right to privacy.
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