The High Court has rejected Winston Peters’ invasion of privacy claim against two former National Ministers and two senior public servants, finding that they had a proper interest in or a genuine need to know the facts relating to the overpayment of his superannuation. But had he been able to identify and taken action against the person who had anonymously tipped off the media to the payment irregularities, the Court said it would have awarded $75,000 to $100,000 in damages.
A month before the September 2017 general election, an anonymous source began calling journalists alleging that Peters had been overpaid superannuation for seven years as a result of declaring he was single when he had a partner, and that the Ministry of Social Development (MSD) had begun investigations into the matter.
When Peters was alerted to the allegations, he issued a press statement denying any irregularity, saying he had paid back the overpaid amount and claiming that the disclosure was “political dirt”.
He also sued a number of politicians, officials and media organisations although ultimately taking proceedings against only former Minister of State Services Paula Bennett, former Minister of Social Welfare Anne Tolley, State Services Commissioner Peter Hughes and former MSD Chief Executive Brendan Boyle.
As the Court in Hosking v Runting established,1 for Peters’ invasion of privacy claim to succeed he had to show that:
he had a reasonable expectation of privacy around his superannuation overpayment and MSD’s investigation
the public disclosure of that information was highly offensive, and
the defendants had acted deliberately in disclosing those private details.
Peters’ claim wobbled at the first hurdle and fell at the second.
The Court said that, while Peters had a reasonable expectation of privacy concerning his superannuation payments that reasonable did not extend to people who had a proper interest or genuine need to know the facts, including the defendants. Further, the disclosure by the defendants had been for a proper purpose and was therefore was not highly offensive:
Bennett and Tolley had only disclosed the payment irregularities when seeking advice about the overpayments;2 and
the State Services Commissioner, the Chief Executive of MSD and MSD had only made the disclosures to the Ministers for proper purposes under the ‘no surprises’ policy and were protected by section 86 of the State Sector Act 1988 because the issue was a legitimate public concern for the Ministers.
Peters sought to rely on the ‘res ipsa loquitor’ (the facts speak for themselves) rule of evidence to establish that the defendants must have made the allegations to the media. The Court dismissed this argument, saying a range of people may plausibly have passed the allegations to the media and that Peters was simply speculating.
Guidance on damages
Although finding there was no liability, the Court gave some useful guidance on damages in invasion of privacy cases.
The Court stressed that as the purpose of damages was to compensate for the hurt and humiliation caused by losing control of the private information, some reference could be made to awards for breaches of the New Zealand Bill of Rights Act 1990.
Taking those matters into account, and as the deliberate leak was clearly designed to harm Peters, had the leaker been identified, the Court would have awarded $75,000 to $100,000 in damages.
Chapman Tripp comment
The judgment is helpful because it shows that the tort of invasion of privacy cannot be used to stop people disclosing information for a proper purpose. Either there can be no reasonable expectation that such disclosure won’t occur or the disclosure of those facts will not be deemed to be highly offensive.
It also confirms that invasion of privacy claims need to identify the person who made the disclosure rather than seek to ascribe blame for an anonymous source, and provides useful pointers on the level of damages that can be awarded.
That said, we consider that the Court’s reasoning could have been clearer in two respects:
at times the Court appeared to merge the reasonable expectation of privacy element with the highly offensive element. The Court of Appeal in Hosking v Runting was clear that they are separate elements, and
the Court could have more clearly rejected Peters’ talk of a “duty to keep private” facts where there is a reasonable expectation of privacy. Such language imports concepts of negligence, which the Court of Appeal in Hosking v Runting held should not happen.
The decision can be found here.
1. Hosking v Runting  1 NZLR 1 (CA).
2. Ms Tolley also made an unguarded general disclosure to her sister but that was accepted to be so general that it could not have led to the allegations let alone them being made public.