Privacy Law Update – Record compensation for “egregious” privacy breach

Home Insights Privacy Law Update – Record compensation for “egregious” privacy breach

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Contributed by: Andrew Butler and Sally Fitzgerald

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Published on: October 05, 2016


The Human Rights Review Tribunal (HRRT) has again demonstrated that it takes intentional breaches of privacy seriously by awarding a record $120,000 in compensation for emotional harm following Colin Craig’s publication of personal matters protected by a confidentiality agreement.

Mr Craig accepted that he had breached the confidentiality obligations numerous times. The HRRT characterised those breaches as “deliberate, systematic, egregious and repeated”. Mr Craig acknowledged that he had made a calculated decision to breach the confidentiality obligations. The HRRT concluded that Mr Craig was motivated to protect his reputation, his position and himself. While revenge was not a motive, that “is of little consequence” in this case where the breaches occurred “in the most public and damaging of circumstances”.

The HRRT referred to Hammond v Credit Union Baywide (see our note on Hammond here) and affirmed that the conduct of a defendant may exacerbate (or, as the case may be, mitigate) the humiliation, loss of dignity or injury to feelings and therefore be a relevant factor in the assessment of the quantum of damages awarded for humiliation, loss of dignity or injury to feelings.

The HRRT concluded that there was a clear causal link between the humiliation, loss of dignity or injury to feelings suffered and Mr Craig’s conduct because, despite the presence of some leaked information on the Whale Oil blog, Mr Craig’s press conferences “took the story national" and “took it from gossip on a blog ... to a story that was on the evening news”. Mr Craig accepted that he “pour[ed] petrol on the flames and he did so repeatedly”.

The HRRT adopted the Hammond approach of three bands for less serious, more serious, and the most serious cases. The HRRT considered that this case fell squarely within the “most serious” band, with a “starting” tariff of $50,000.

Hammond, decided 12 months previously, was considered at the time to be the high-water mark of damages for emotional harm. However, in this case, the damages award for emotional harm is approximately 20% higher than the award made in Hammond.

The most egregious features of the case, which distinguished it from Hammond, and which justified a higher award, were:

  • The relentless nature of the exposure of Ms MacGregor to nationwide adverse media attention.
  • The stigmatisation of Ms MacGregor as a consequence of her sexual harassment claim.
  • The fact that Ms MacGregor sought to avoid exactly those consequences by using the confidentiality protections available through mediation under the Human Rights Act.

The HRRT has taken a strong stance against deliberate breaches of privacy both in Hammond and in this case. These decisions demonstrate that the HRRT can provide meaningful remedies to claimants who have had their privacy breached.

In this case, the HRRT noted additionally that breaches that undermine the statutory protection provided under the Human Rights Act are particularly reprehensible, because the stripping away of that protection is likely to have a significant impact on victims.  

Decisions involving significant negative media attention have more frequently been the subject of privacy claims overseas than in New Zealand. However, this decision serves as a timely reminder that the HRRT is able to provide valuable remedies to people whose personal information becomes part of the national news cycle against their will.

The decision is available here.

This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice.

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