The Christchurch sex romp video case has raised much legal speculation, as Phil Taylor reports

Is leaving the lights on at work a sackable offence?

Silly as that sounds, that is the sort of detail the Christchurch company may weigh up in the case of two staff members whose late-night sex romp at work was photographed and filmed and went viral on the world wide web.

The story, with stills and video, is prominent on news sites from Germany, through Korea and Japan to the United States where the Huffington Post begins its coverage with the warning: "Don't throw stones if you live in a glass house. And don't have sex if you work in a glass office."

It's not only news outlets that see value in the story, porn site operators have been seeking the raw video.


The employees of insurance firm Marsh Ltd unwittingly put on a sex show for partrons of a bar across the road from the glass-fronted office building. The pair - reportedly a married man with children and a woman whose engagement had recently ended - have not been at work this week while the company investigates and ponders what action it will take.

"It's not the type of behaviour we condone. It's very disappointing," said Marsh Ltd chief executive Grant Milne, who added that it was "embarrassing" for the risk-assessment company.

Had the building not been lit, had the pub not been full of revellers, the employers and the global village would likely be none the wiser.

The lights are relevant to whether they could have had what the law calls a reasonable expectation of privacy. Their behaviour suggests they thought they could not be seen. But the lack of drapes, the proximity of the pub and the lights might suggest that assumption was unreasonable.

"In my view, that made it an open place," employment lawyer Kathryn Dalziel said.

What about the glazing? Some offices have glass that can't be seen through during the day but which has the opposite effect at night when offices are lit: those inside can be seen but can't see out.

It will depend on the precise facts, an expert in labour law and privacy issues told the Herald. If they couldn't be seen from outside during the day, they might have assumed that to be the case at night, said University of Otago law professor Paul Roth. "It's all arguable. Whether or not they had a reasonable expectation of privacy would depend on the facts and what a reasonable person in their position would believe."

That may not save their jobs.


Roth: "Any employee whose action brings their employer into disrepute or harms their reputation or brings them unwelcome publicity is in breach of an implied term of loyalty in the contract between them."

And it doesn't have to be written in their contract as it is implied by the common law.

"On the face of it, it looks like that through their actions they caused their employer to lose face, become a bit of a laughing stock."

That applied when two British business-class passengers had drunken sex under a blanket on a transatlantic flight. The pair, strangers upon boarding, both married and working for different companies, were arrested, charged with outraging public decency and being drunk on an aircraft. The tabloids got the story, the companies were embarrassed. One was sacked, the other disciplined.

The Christchurch rompers caused unwelcome attention for their employer but that is not the end of it, said Roth. New Zealand employment law requires the company to make a fair and reasonable assessment if it is looking at disciplining or firing them. "On the one hand, these employees were responsible for the bad thing that happened but then the publicity wasn't of their making," said Roth. "Maybe they did think they couldn't be seen. It's a bit different from doing it under a blanket in business class."

Is it the action that is objectional to the company or the public knowledge of it? What if they'd been in a windowless boardroom?

"It's up to the employer. The question to ask is would a fair and reasonable employer sack or discipline someone in that situation? I think the answer could be yes. You don't want someone to have sex in your work premises. Though the publicity wasn't of the pair's making, they set off a chain of events that caused their employer to appear in the news in a light that made them look ridiculous."

Though the issue is not clear-cut, employment lawyer Paul Wicks, QC, thought Marsh Ltd would have a reasonable chance of sustaining a decision to dismiss provided it followed a fair process. Any policy the company had about the circumstances in which staff could be on the premises after hours and their required behaviour would be relevant, as would whether the sex romp brought the company into disrepute and caused it damage.

The employees, Wicks said, could argue it reflected poorly on them but not the company, because it was their own conduct and that Marsh had addressed reputational damage through the public statements it made.

Such argument may have helped five London law firm staffers to keep their jobs after forwarding a smutty email sent by the girlfriend of one of them. Within hours the email spread from Norton Rose to other law firms before making its way across the world, as far as New Zealand. The law firm said the employees were horrified by the consequences, had been disciplined but not dismissed. Unlike the staff of that firm, the Christchurch pair did not put the images of their tryst on the net and may have a case against those who did.

It is unlikely the Privacy Commission would investigate unless one of the pair complained, but commissioner John Edwards said it was probably an invasion of their privacy and they could test that by suing under common law those who put the material on the net.

Victoria University associate law professor Nicole Moreham said they may have a case and if successful could claim damages and gain orders that the material be taken down. They would have to show that publicity given to it was highly offensive and served no proper public purpose. Disclosures designed to mock and humiliate are generally seen as particularly offensive. The purpose here, she suggests, was to have a laugh at the pair's expense.

They would also have to show they had a reasonable expectation of privacy. The fact that they could be seen wasn't the end of that, Moreham told the Herald. A New Zealand judge in a case that involved footage of the aftermath of a car accident ruled that the conversation captured between a couple being extricated from a car wreck was private, even though it happened in a public place. British courts reached similar conclusions, deciding that the moments before a man's suicide attempt caught on CCTV was private and that a newspaper breached supermodel Naomi Campbell's privacy by publishing a photo of her outside a Narcotics Anonymous meeting, even though she was standing on the street.

Which means location isn't everything. The nature of the activity and of the publication are important and, notes Moreham, the comments of the pub-goers suggest the pair were unaware they had an audience.

"The fact that you can be seen by someone, even a large group, doesn't mean that the footage of that incident can be taken or disseminated to the world at large."

"What this means ... is that anyone - including mainstream media - who publishes images of the couple in the office block could find themselves being sued. And the couple in question might just win."

Those who recorded and posted images could be on the wrong side of the criminal law too. Additions made a decade ago to the Crimes Act aimed at voyeuristic behaviour such as the covert filming of swimming pool changing rooms or up-skirt photography may apply as they outlaw the making and publishing of intimate recordings of people without their knowledge. Again, this law requires that the people be "in a place which, in the circumstances, would reasonably be expected to provide privacy".

It's for the police to assess whether a criminal offence has occurred. "Based on the information available to us at this time, police are satisfied that no offence has been disclosed in relation to this matter which would lead to investigation," a spokesman told the Herald.

Prurience isn't new. The film Fifty Shades of Grey is expected to attract huge box office takings and the Christchurch romp stories topped the pops on news sites even after reports emerged that one of the pair was married with children, raising the spectre of widespread damage.

Have tech advances left morale considerations in the dust? "For many, television is taken as real life," wrote comedian Michele A'Court this week. "And now ... real life is taken for television."

A'Court wondered at the long-term cost. "The images will never cease to exist. They will still be there when she's applying for the role of CEO. And still there later when he is a grandpa. That's a long time to be humiliated."

She is probably right, despite the aim of the soon-to-be-enacted Harmful Digital Communications Bill to make it easier for people to have harmful images removed from the internet.

In plain sight

Mayor Len Brown and Bevan Chuang: in his office and the Auckland Town Hall's Ngati Whatua room where they were interrupted by a security guard via an unlocked door. Brown received an official ticking-off by Auckland Council.

Former US President Bill Clinton had an extra-marital affair with White House intern Monica Lewinsky: Clinton survived a 21-day impeachment trial in the Senate. His statement - 'I did not have sexual relations with that woman ' - entered folklore.

Rob Lowe: Actor, in 1988 was involved in a scandal involving a video camera and sex with women aged 16 and 22. It was one of the first cavalier sex tapes put into the public forum. His career was slow to recover. He is best known for his role as Sam Seaborne in the television series West Wing.