Privacy Law and Policy Reporter
Can it be unlawful to take photographs of people in a public place? The New Zealand Court of Appeal recently upheld the conviction of someone who did just that, and it implied that if he had been a paparazzi, he might not have been convicted, because he would then have had a “legitimate purpose” in taking the photographs. This was not “up-the-skirt” filming, but the surreptitious photographing of high school girls walking to school along a public street.
The defendant in R v Rowe was convicted under s 4(1)(a) of the Summary Offences Act 1981 for behaving in an offensive manner in a public place. This might seem to be a surprising conclusion given that taking a photograph is not in itself an offensive act, and that the photographs concerned were not intrinsically offensive since they depicted an unexceptional scene that people could see for themselves on a public street. However, it was the fact that all of defendant’s subjects were schoolgirls, and that the defendant took the photographs while concealed in his parked van, that rendered the taking of the photographs on this occasion “offensive”.
The case is noteworthy because it indirectly gives people a right to privacy in public places under the criminal law where no similar right exists in similar circumstances under civil law. In the recent decision by the New Zealand Court of Appeal in Hosking v Runting, it was unanimously held that there was no tortious right to privacy in public places in the circumstances of that case since there was no public disclosure of private facts, nor were the photographs that were taken offensive to a person of ordinary sensibilities. In that case, photographs were taken of a television personality’s twin 18 month-old daughters while they were being pushed around a shopping district in a stroller. The family was unaware at the time that they were being photographed. Justices Gault and Blanchard commented that in terms of making out a privacy tort, they were “not convinced a person of ordinary sensibilities would find the publication of these photographs highly offensive or objectionable even bearing in mind that young children are involved.” Similarly, Justice Tipping remarked that he could not “see how it can reasonably be said that publication of these photographs should be regarded as likely to cause substantial offence or other harm to a person of reasonable sensibility.”
Moreover, the right affirmed in the Rowe case did not depend on the person being photographed having some expectation of privacy, as discussed in recent European Court of Human Rights cases. The Court simply found that the actions of the defendant amounted to “offensive behaviour.” Interestingly, and unlike the European cases, the defendant did not make any argument based on his right to freedom of expression. The defendant might have tried to mount an argument based on s 14 of the New Zealand Bill of Rights Act 1990, which provides that “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.” The New Zealand Bill of Rights Act, unlike the European Convention for the Protection of Human Rights and Fundamental Freedoms, does not contain any guarantees for the protection of individuals’ privacy apart from the s 21 right to be secure from unreasonable search and seizure.
The Police in Rowe contended that “the offensive interference need not be to a civil right, since it was enough that the behaviour was likely to offend the right of reasonable usage of a public place.” The Police went on to argue that “Covertly photographing school girls on their way to school, in the circumstances disclosed, was voyeuristic behaviour involving a deliberate and furtive targeting of the girls and was therefore offensive.” The Court of Appeal accepted this approach, and stated:
“Because the offence is one against public order and must occur in, or within view of, a public place the notion that the conduct must infringe the rights of a user, or users, of that public place is conveyed. More commonly the right which is infringed is simply the freedom to use and enjoy the public place in question.”
The defence, on the other hand, had contended that the conduct in question had to be offensive per se, and that the act of taking a photograph was not offensive in and of itself. The Court found, however, that the action of taking photographs in this case was offensive per se because “the furtive or covert nature of the behaviour spoke for itself.”
The Court placed some importance on the fact that there was no apparent bona fide reason for the defendant to take the photographs, and he was apparently not a bone fide photographer. Accordingly, the Court found that there was no legitimate purpose for the taking of the photographs, and it stated that “An absence of legitimate purpose, so that behaviour is naturally perceived as gratuitous or even sinister, may increase its tendency to offend”.
In the end, the Court split 2-1 on whether the defendant’s behaviour was offensive or not. The Court noted that “Two judges consider that the appellant’s conduct did have the necessary tendency to seriously offend right-thinking members of the community and that it warranted the intervention of the criminal law.” The majority held that the defendant’s actions were self-evidently furtive; that any legitimate purpose for taking the photographs was patently absent; and that the furtive targeting of the particular group -- schoolgirls -- was particularly pertinent. The majority remarked that unlike the situation in the Hosking case, which involved a professional photographer making unnoticed photographs of a celebrity’s children for a women’s magazine, “all the observable indications were sinister.” Given that the photographing went unnoticed by the subjects in both the Rowe and Hosking cases, it seems a bit odd that the Court should have referred to the “observable indications”.
The majority summed up its findings by stating that the defendant’s behaviour on the date in question “was offensive having regard to the time, place and circumstances in which it occurred, one such circumstance being a manifest absence of legitimate purpose.” The Court might also have pointed to a distinction that could be drawn between photographing celebrities (and their offspring), and photographing private individuals. In von Hannover v Germany, the European Court of Human Rights quoted the German Federal Constitutional Court’s suggestion that ordinary individuals had rights to privacy that were superior to those of celebrities: “Pictures of people who are of no significance in contemporary society should not be made freely accessible to the public: they require the prior consent of the person concerned.” In the Rowe case, there was no indication that the photographs were going to be published, and indeed, this was even held against the defendant when it was invoked to question whether he had any “legitimate purpose” in taking the photographs. However, the non-celebrity status of the defendant’s subjects could have been brought into the equation and used, perhaps, to support an argument that the subjects would have had an expectation of privacy in the circumstances, given that they were ordinary girls merely walking to school.
The minority judge did not accept that objectively, it was open to conclude that the photographs were taken without a legitimate purpose. He remarked: “Had the photographer been for example, a police officer taking photographs for the purposes of a criminal investigation or a paparazzi taking photographs for a newspaper or magazine, the observable behaviour would have been identical.” He went on to observe:
“Offence may be caused if the photographs were used for a sinister purpose. But it would be the use which caused offence, not the taking of the photographs.”
The Rowe case, which had been appealed to the highest level to which it could proceed, sets an interesting precedent that has numerous implications. Given that one is free to look at whomever one wishes when in a public place, and to later recall and describe the person, it is now forbidden to make a photographic record of the person in situations such as in the Rowe case. This case concerned schoolgirls. Would the same principle apply, say, if pregnant women, macho musclemen, disabled people, or members of a particular minority were the photographer’s subjects? Would furtively drawing pictures or recording an oral or written description of the same subject matter incur liability as well, or is it only photographs? And if so, what is the magic in a photograph that is absent from an accurate pictorial, oral, or written description?
The result in the Rowe case also suggests analogous applications of the criminal law to other situations, such as the taking of photographs with mobile phone cameras, which can often easily appear to be furtive, and the taking of pictures in public that are of questionable taste, such as photographs of accident scenes. This hypothetical had already been more or less suggested in Bathurst City Council v Saban, where Young J opined that civil relief would be available for “a plaintiff who complained that someone had taken a photograph of him in a shockingly wounded condition after a road accident”, or where the photograph was otherwise offensive. The availability of such relief, however, would arguably depend on whether or not the photograph was published.
As a postscript, the defendant in Rowe was recently arrested and convicted again in the District Court for similar conduct, this time furtively taking photographs of young women studying in a university library. He was convicted on the authority of the Court of Appeal case in which he had figured before. Interestingly, the judge took into account the subjects’ expectations of privacy in assessing whether, in the circumstances of the situation, the defendant’s behaviour was offensive:
“Still in the twenty first century it remains reasonable to expect a library to afford a sanctuary for quiet contemplation where its occupants and perhaps particularly women can let down their guard from the ubiquitous risk of being photographed covertly or otherwise and largely free from public gaze. This reasonable expectation makes occupants off guard and unsuspecting...”
In the result, the court found that the defendant’s conduct “would arouse feelings of anger and/or potential disgust” in the minds of a right thinking member of the community. Accordingly, it found the taking of photographs in the circumstances to be offensive conduct. The case is being appealed.
Dr Paul Roth is Professor in the Faculty of Law, University of Otago, New Zealand. ?
 R v Rowe, CA 374/04, 18 April 2005, O’Regan, Robertson, and Panckhurst JJ. The defendant was first convicted and discharged without penalty in the District Court (Police v Rowe, Dunedin, 20 Februrary 2004, O’Driscoll J) and failed in his appeal to the High Court (Rowe v Police, Dunedin, CRI 2003 012 12199, Chisholm J). Leave to appeal to the Supreme Court was declined in Rowe v The Queen  NZSC 40, 23 June 2005, Gault and Keith JJ.
 This issue was recently examined by the New Zealand Law Commission in its report Intimate Covert Filming (Study Paper 15, Wellington, June 2004). It led to the introduction into Parliament of the Government’s Crimes (Intimate Covert Filming) Amendment Bill on 12 April 2005.
  1 NZLR 1.
 Ibid, para 165.
 Ibid, para 260.
 Peck v The United Kingdom, No 44647/98, 28 January 2003, von Hannover v Germany, No 59320/00, 24 June 2004.
 Article 8(1) of the Convention provides that “Everyone has the right to respect for his private and family life.”
 There had been a deliberate decision not to include a right to privacy in the New Zealand Bill of Rights legislation: see A Bill of Rights for New Zealand: White Paper (Wellington, 1985), para 10.144: “There is not in New Zealand any general right to privacy, although specific rules of law and legislation protect some aspects of privacy. It would be inappropriate therefore to attempt to entrench a right that is not by any means fully recognized now, which is in the course of development, and whose boundaries would be uncertain and contentious.” The Long Title to the New Zealand Bill of Rights Act states that is an Act “To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights”. However, there is nothing in it to affirm article 17(1) of the International Covenant, which provides that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.”
 R v Rowe, CA 374/04, para 19.
 Ibid, para 22.
 Ibid, para 34.
 The defendant did not give evidence in this case.
 R v Rowe, CA 374/04, para 33.
 Ibid, para 37.
 Ibid, para 39.
 In Rowe, the defendant was apprehended after the police were notified by the firm that was developing his films. The police caught the defendant in the act by snooping around his van and peering into it behind its curtains. Accordingly, there were no “observable indications” as far as the schoolgirls or any other member of the public were concerned. In the Hosking case, the fact of the photographing came to the parents’ attention when the magazine informed them that it proposed to publish the photographs.
 R v Rowe, CA 374/04, para 46.
 von Hannover v Germany, No 59320/00, 24 June 2004.
 Ibid, para 25, section (aa).
 R v Rowe, CA 374/04, para 39.
 Ibid, para 40.
 See the Canadian case of Aubry v Éditions Vice-Versa Inc  1 SCR 591 for the legal position in the law of Québec, where individuals have a personality right to their own image and have legal remedies if photographs of them are taken and published without their consent (except where the individual appears in a crowd or otherwise in an incidental manner in a public place, as opposed to being the focus of the photograph).
  2 NSWLR 704, at 708.
 But contrast the English Court of Appeal case of Kaye v Robertson (1990) 19 IPR 147, where such a civil remedy was not available in respect of photographs of a celebrity in a hospital bed following a serious road accident. The set of facts there would probably now be actionable since the enactment of the Human Rights Act 1998 (UK): see Campbell v MGN Ltd  UKHL 22.
 Police v Rowe, Dunedin, CRN 4012013821, 23 September 2005, Smith J.
 Ibid, para 30.