Privacy Litigation

What we do

The Director of Human Rights Proceedings (the Director) can also appear in the Tribunal in cases under the Privacy Act 1993, either as the plaintiff or as an intervener.

If the Office of the Privacy Commissioner decides there has been an interference with a complainant’s privacy, he may refer the matter to the Director for him to decide whether or not to bring proceedings. If the Director does bring proceedings, then he is the plaintiff and the complainant is usually called as a witness.

If the Privacy Commissioner decides that there has not been an interference with privacy or the Director decides not to bring proceedings, the complainant can still bring his or her own proceedings in the Tribunal. If the complainant does so, the Director has the right to appear in the case as an intervener.

Cases of interest

Hammond v Credit Union Baywide [2015] 

In March 2012, after resigning from her job at NZCU Baywide (NZCU), Ms Hammond uploaded a photo of a cake to her Facebook page that she had taken to a private dinner party.  She had made the cake for a close friend who had also recently resigned from NZCU and the top of the cake had been iced with profanities directed at NZCU. The privacy setting of Ms Hammond’s Facebook profile was such that only those accepted by her as “friends” could see her photos and other posts.

Management staff at NZCU found out about the Facebook post and coerced a junior employee to reveal the photo on her own Facebook page. The management staff then took a screenshot of the photo and disclosed it to other senior managers, before circulating the photo to several employment agencies in the Hawkes Bay area by email. In addition, they made several phone calls to potential employers warning them against employing Ms Hammond.

The Tribunal found that NZCU had engaged in a “sustained campaign… to inflict on Ms Hammond as much harm and humiliation as possible by ensuring she could not be employed in the Hawke’s Bay area (if not further afield) and to secure her dismissal by her current employer.” Accordingly, they Tribunal held that NZCU was in breach of Principle 11 of the Privacy Act 1993 (improper disclosure of personal information by agency). 

In March 2015 the Tribunal awarded damages to Ms Hammond in the sum of $98,000 for humiliation, loss of dignity and injury to feelings, $38,350 for loss of income, $15,543 for legal expenses and $16,177 for the loss of a benefit of a salary that she might have expected to obtain, but for the interference to her privacy. 


Director of Human Rights Proceedings v Crampton [2015] 

The Director of Human Rights Proceedings brought an interference of privacy claim against David Crampton following Mr Crampton’s disclosure of a damaging letter about Jeanette Chapman, the former president of Massey University’s Extramural Students’ Society, to the Massey Student magazine.  

David Crampton was a journalist and member of the executive committee at the Society. The letter served as a “written warning” to Ms Chapman from the executive committee. It contained personal and sensitive information relating to Ms Chapman’s performance as President.  An excerpt from the letter was subsequently published in an article in the Massey Student Magazine. 

The Tribunal applied the decision of Hammond and found that Mr Crampton had breached Information Privacy Principle 11 (improper disclosure of personal information by individual).

In July 2015 the Tribunal awarded Ms Chapman compensation in the sum of $18,000 for humiliation, loss of dignity and injury to feelings. The Tribunal also ordered Mr Crampton to attend, at his own expense, an “Introduction to the Privacy Act” workshop run by the Office of the Privacy Commissioner.


Director of Human Rights Proceedings v Hamilton [2012]

This case concerned an accountant, David Hamilton who over a period of four years, refused to provide personal information to former clients.

Mr Hamilton’s client made several requests to obtain her accounting records from Mr Hamilton so she could have their annual accounts reviewed and complete her tax returns. At the time of the requests, Mr Hamilton was aware that his client’s relationship had broken down, one of her sons had died and another had been hospitalised. 

The Tribunal held that Mr Hamilton’s actions had amounted to “arrogant indifference” to his client’s difficult situation when. He gave no valid grounds for his refusal to supply the information – blaming a backlog of work and a decline in business that inhibited him from giving his attention to his client’s requests. 

In November 2012 the Tribunal concluded that Mr Hamilton had breached Principle 6 as he had made no effort to comply with his obligations to supply his client with her personal information and he provided no valid grounds for his refusal. 

The Tribunal awarded the aggrieved individual $5,000 for her loss of a benefit in being able to provide information to Inland Revenue in a timely way. Mr Hamilton’s failure to provide his client with such information caused her a significant amount of stress and anxiety which exacerbated her already very fragile emotional state. Accordingly, the Tribunal also awarded her an additional $15,000 for humiliation, loss of dignity and injury to feelings. Finally, the Tribunal awarded the Director of Human Rights Proceedings $7,500 costs against Mr Hamilton and it ordered release of the requested information to the aggreived individual within 20 working days of the date of the decision.


Director of Human Rights Proceedings v NZ Institute of Chartered Accountants [2015]

Mr Newson was a Chartered Accountant working in Wellington as a member of the New Zealand Institute of Chartered Accountants (“NZICA”). NZICA has a statutory duty to regulate chartered accountants. This includes carrying out periodic review of their practices. 

Mr Newson’s practice was reviewed in March 2010 and February 2011. The contents of the reviews were summarised and sent to Mr Newson for his comments.  Following the second review, the two reviewers held a feedback session with Mr Newson to discuss the shortcomings in his practice. During the session, one of the reviewers referred to a handwritten note.

Mr Newson made a formal request for the note under Privacy Principle 6 (access to personal information). NZICA refused to disclose the document by relying on s 29(1)(b) of the Privacy Act 1993, which states that an agency may refuse to disclose personal information where the information comprises evaluative material and there was an express or implied promise that the information would be held in confidence.

The Tribunal found that the information comprised evaluative material to determine whether Mr Newson should continue to receive the benefits afforded by his membership with NZICA, namely his ability to provide accounting services using the designation “Chartered Accountant”.

In addition, there was an implied promise to the reviewers that the information would be held in confidence, so as to allow them to submit their views regarding the firms’ strengths and weaknesses in an inhibited and frank manner. 

Accordingly, in December 2015 the Tribunal dismissed Mr Newson’s claim on the basis that NZICA had provided valid reasons for refusing to disclose the information to Mr Newson, in accordance with the exceptions under the Privacy Act 1993. 


Taylor v Orcon Limited [2015]

On 27 July 2012, Orcon, a telecommunications company, instructed Baycorp, a debt collection agency, to recover a disputed debt from Mr Taylor. This had an immediate effect on Mr Taylor’s credit rating, making it impossible for him to find rental accommodation for him and his family. This caused him immense stress because as a soldier in the New Zealand army, he was frequently transferred from one army base to another.

Given that no debt actually existed, the Tribunal found that Orcon was in breach of Privacy Principle 8 by providing personal information to Baycorp that was inaccurate and misleading.

In May 2015 the Tribunal ordered Orcon to pay Mr Taylor $25,000 for loss of a benefit and emotional harm. It also ordered Orcon to provide privacy training to its staff in relation to its obligations under the Privacy Act 1993. 


Director of Human Rights Proceedings v Shubach [2015]

The defendant, Juergen Schubach, a German lawyer trading as Schubach: the German Law Firm in New Zealand, overcharged for access to personal information.

After terminating Mr Schubach’s services, the complainant initially attempted to uplift his files without success. Subsequently, his new lawyer requested access to all of the complainant’s personal information, whereupon Mr Schubach required payment of NZ $800 for selecting and printing the complainant’s papers. The complainant refused to pay what he regarded as an unreasonable charge.

The Director brought proceedings in the Tribunal against Mr Schubach alleging the charge of NZ $800 for the complainant’s personal information was not reasonable and breached Information Privacy Principle 6.

Mr Schubach applied to strike-out the proceedings on the basis that the Tribunal lacked jurisdiction. He relied on documents signed by the complainant which stated the venue for all legal disputes between them was a Regional Court in Germany. The Tribunal dismissed the strike-out application stating that the Privacy Act does not permit an agency to contract out of its statutory obligations.

The Tribunal affirmed that under the Privacy Act any charge for meeting an information privacy request had to be “reasonable” and noted that the Ministry of Justice charging guidelines were a useful reference point or measure of what a reasonable charge will be.

Mr Schubach did not attend the hearing or give evidence. Having regard to the cost of labour and materials required to make the information available, the Tribunal concluded that the $800 demanded by Mr Schubach was clearly an unreasonable charge.

The Tribunal declared that Mr Schubach had interfered with the complainant’s privacy and awarded damages of $1,374.25 for pecuniary loss for legal expenses, damages of $5,000 for loss of a benefit, damages of $5,000 for injury to feelings, and ordered Mr Schubach provide access to the personal information and pay costs of $3,750 in favour of the Director.

News

Immigration NZ to introduce a new policy for amending personal information following case settlement

July 1, 2016

Following settlement of a case with the Director of Human Rights Proceedings (The Director), Immigration New Zealand (INZ) has confirmed it is working on a policy for dealing with requests to amend personal information. 

In August 2015, the Privacy Commissioner upheld a complaint by a former Ethiopian refugee against Immigration New Zealand (INZ) that INZ refused to correct the refugee’s date of birth information.  

Through no fault of his own, the complainant arrived in New Zealand with travel documents that incorrectly stated his age as being at least three years younger than his actual age. This meant the complainant was unable to earn the adult minimum wage, access financial assistance or get a drivers licence – the types of things anyone of his actual age should be able to do.

Subsequent bone density scans and dental examination confirmed the discrepancy. The complainant provided this and other evidence to INZ and asked it to alter its records, but it did not do so.

The Privacy Commissioner held that INZ had interfered with the complainant’s privacy in breach of Information Privacy Principles 7 and 8 and referred the case to the Director. 

The Director and INZ have since settled the case on a confidential basis that will avoid the need to take the case to the Human Rights Review Tribunal. 

INZ acknowledged that it breached Principle 7 of the Privacy Act 1993 (which deals with the requirement that agencies correct personal information upon request) and confirmed that it has undertaken work on a policy to deal with requests for personal information amendments - including the evidence required to amend a date of birth.  

INZ will consult with the Privacy Commissioner about the intended policy and suitable training about it will be provided to INZ staff who deal directly with requests made under the Privacy Act.  

Any new policies will be made publicly available.  

The Director, Robert Kee, was assisted by barrister, Simon Judd. “I am grateful for Mr Judd’s assistance and INZ’s constructive approach in bringing this matter to a sensible conclusion without the need for costly litigation”, Mr Kee says. 

“Not only was this particular complaint addressed, but there is also the promise of a better Immigration New Zealand policy for other migrants facing similar difficulties.”

For information on the case presented to the Director, see Case Note 264435 [2015] PrivCmr 8: Immigration, which is available here.