## Facts

- Michael and Marie Hosking, public figures, had twin daughters and intentionally kept the children out of media coverage.
- A magazine commissioned a freelance photographer to photograph the 18‑month‑old twins.
- The photographer took photos in a busy Auckland shopping street while the children were with their mother, without her knowledge.
- The photos were intended to accompany a human‑interest article about the couple, including their separation.
- The images were innocuous (children in a pram in public), with no intimate, embarrassing, or unsafe conduct shown.
- The Hoskings sought an injunction to prevent publication and to restrain future photographing/publishing of their children until age 18.
- The High Court refused relief, concluding there was no standalone tort of privacy and no privacy claim for images taken in a public place.

## Issues

1. Whether the common law should recognize a freestanding tort for invasion of privacy based on public disclosure of private facts.
2. If such a tort exists, whether publishing the street photographs of the twins would be an actionable invasion of privacy warranting an injunction.
3. How privacy protection should be weighed against freedom of expression and legitimate public interest.

## Decision

- The Court of Appeal (majority) recognized a common-law tort for wrongful publicity given to private facts.
- The Court dismissed the appeal and denied an injunction because the proposed publication was not actionable on these facts.
- The majority held the plaintiffs failed to show a reasonable expectation of privacy and failed to meet the “highly offensive” threshold.
- The Court treated freedom of expression as a required consideration and accepted some legitimate public interest in the human‑interest story about well-known individuals.
- Dissenting judges objected to recognizing a new tort through judicial development and favored legislative or existing doctrinal routes; they were also cautious about granting relief on the facts.

## Legal Principles

- A tort of public disclosure of private facts requires:
  - facts in respect of which there is a reasonable expectation of privacy; and
  - publicity that would be highly offensive to an objective reasonable person.
- Even where the elements are met, publication may be justified where there is legitimate public interest, requiring a balance between privacy and freedom of expression.
- Privacy and breach of confidence are distinct; privacy liability does not depend on a preexisting confidential relationship or obligation.
- Privacy protection is not categorical for children; a child claimant must still satisfy the reasonable-expectation and highly-offensive requirements, with the child’s vulnerability treated as a relevant consideration.

## Conclusion

The Court of Appeal recognized a tort for public disclosure of private facts but denied injunctive relief because photographs of children taken in an ordinary public street setting were not private facts and their publication would not be highly offensive, particularly when weighed against freedom of expression and the limited public interest in the accompanying story.


Hosking v. Runting, [2004] NZCA 34 (N.Z. Ct. App. 2004)