CPLC/CPL Seminar: 'Unpacking the reasonable expectation of privacy test: a new framework for the misuse of private information tort'

Speaker: Dr Nicole Moreham, Victoria University of Wellington

This seminar is open to all LLM, MCL and PhD students, Faculty members and Faculty visitors.

The paper forms part of Dr Moreham's current project seeking principles which would allow courts (and others) to decide whether, in particular circumstances, a person has a reasonable expectation of privacy such as to give rise to a cause of action for breach of privacy.

Abstract: The question of what is and is not private lies at the heart of all legal protection of privacy. But working out whether something is private is a challenge. Any legal test needs to be flexible enough to cover the myriad of situations in which legitimate privacy claims can arise and yet predictable enough for potential defendants to know what they can and cannot do. It also needs to reflect the fact that privacy means different things to different people whilst at the same time remaining grounded in social mores about acceptable behaviour.

The aim of this talk is to consider how courts should negotiate these tensions when applying the reasonable expectation of privacy test in the misuse of private information tort. In particular, it seeks to identify principles underpinning the factors which courts rely on to determine the existence of a reasonable expectation of privacy and suggests how courts can use these principles to enhance both certainty and coherence when applying the test in the future.