Photo fight over Hosking twins' safety

Broadcaster Mike Hosking and his estranged wife Marie Hosking fear for the safety of their twin girls if their photos are published in a women's magazine.

In affidavits read to the High Court at Auckland yesterday, the Hoskings said they were concerned that the 18-month-olds Ruby and Bella could be the victims of kidnappers or some other disturbed person.

The couple are taking action against photographer Simon Runting and New Idea publishers Pacific Magazines NZ.

Runting and the magazine are supported in defending the action by lawyers acting for the Commonwealth Press Union and ACP Media.

The Hoskings want a ban on the magazine publishing any photos of the girls until they are 18.

In his affidavit, Mr Hosking said that the children could become the target of a disturbed person if the photos were published, and Marie Hosking said that recent child kidnappings put the girls in danger.

Julian Miles, QC, acting for Mr Runting and New Idea, dismissed the likelihood of a kidnapping.

However, Justice Tony Randerson said that the Hoskings' genuine concerns because of Mike Hosking's celebrity status should not be discounted.

Mr Miles replied that the Hoskings were quite entitled to swear an affidavit saying they had these fears, but if they were to play a significant part in the proceedings, there would have to be an objective analysis as to how legitimate those fears were.

Mr Miles discounted the Hoskings' claims, saying they had not been corroborated.

Their own actions in co-operating in articles and interviews did not indicate the existence of such a fear.

The Hoskings' lawyers, Willie Akel and Tracey Walker, told Justice Randerson that the sole issue was the privacy of the twins, born after infertility treatment in June 2001.

"This case is solely about their interests and their right not to have their image commercially exploited by publication to the world at large without consent," said Mr Akel.

Mr Akel claimed that Runting surreptitiously snapped the mother and her daughters in Broadway, Newmarket and sold the pictures to New Idea.

Both parents strongly objected to any publication.

"Neither plaintiff seeks publicity for their children. Unlike other so-called celebrities, they have never sold their story or photographs to make money out of the perceived celebrity status of Mike Hosking."

Mr Akel accepted that there were competing interests between the right to privacy of the girls and the right to freedom of expression.

He said there was no uncertainty about the existence of the tort of invasion of privacy in New Zealand, though its scope had yet to be fully developed.

He maintained that the two children had a right to privacy, a right not automatically lost merely because they were in a public place.

Mr Akel said that the defendants appeared to be saying there could be no right of privacy in public on the basis that there was an implied consent to being photographed.

Mr Akel said that freedom of expression provided for in the Bill of Rights was not an absolute but was subject to reasonable limits.

Under the 1993 Privacy Act there was an exception for a "news medium" and "news activity" was strictly defined, but Mr Akel said that the photos of two 18-month old girls could not be news.

Mr Miles said that the leading cases in New Zealand made it impossible for the Hoskings' action to succeed.

If it did, or if consent were required, it would immediately ban the "door-stopping" of people in the street by news photographers.

Mr Miles described the Hoskings' action as misconceived and unprincipled and questioned whether there was an "ulterior motive", which brought an objection from Mr Akel.

Mr Miles referred to a number of articles in which he said Hoskings took every opportunity to refer to his children.

The "unprecedented breadth" of the Hoskings' application had implications not only for the defendants but the print media as a whole.

Mr Miles said that the plaintiffs were attempting to control upbeat aspects, but when things went wrong they wanted to "muzzle" any hint of publicity they did not approve of.

"You can't have it both ways. If you are a creature of the media, then you have to take it for better or for worse."

Mr Miles said that Hosking was not a "reluctant debutante" but had pursued public exposure for both himself and his family circumstances, including issues about infertility treatment, by discussing them in the media in order to promote his career.

Hosking could not argue that they actively kept the twins from the public eye, when the impending birth of the girls had been the subject of significant public comment volunteered by the plaintiffs.

Mr Miles suggested there was a "degree of hypocrisy" being shown by Mr Hosking, in particular.

"Photographs showing Marie Hosking with the two children post-separation is not an acceptable part of Mike Hosking's image and he does not want it shown to the public.

"Mike Hosking has pitched himself as a conservative man devoted to his wife.

"He has taken the high moral ground in questioning Paul Holmes on Paul Holmes' personal life," Mr Miles said.

The hearing continues today.