This article originally appeared on VICE New Zealand. Summer is rearing its fake-tanned, diet-riddled head, which means many of us will be heading away to holiday homes around New Zealand. And with friends and time off, letting your hair down in a variety of (possibly illicit) ways is the norm. You expect the privacy to do just that. But VICE has heard of summer good times ruined by prying landlords, like the intimate stag party kicked out of a bach after the owners caught wind—supposedly via a hidden camera—that they were snorting coke at the residence.
For all those hoping to have a bit of fun over the holidays and want to know whether it's legal for landlords to breach your privacy, withhold your bond, or whether you'll be going to jail for doing drugs, VICE spoke to Otago University public law lecturer Marcelo Rodriguez Ferrere for all the answers.
VICE: Hi Marcelo, what's the legal situation here?
Marcelo: Well, in longer term tenancy situations, there's a residential obligation on landlords to essentially ensure comfort and privacy of the tenants, under the Residential Tenancies Act 1986 . The landlord has to take all reasonable steps to ensure these rights are enforced. If anything, CCTV footage, particularly secret footage, would be a direct breach of these obligations. In long-term rentals where there is a tenancy agreement and the landlord spied on you, I'd say this was a clear breach of the law which, yes, could lead to successful action at the Tenancy Tribunal.
In the case of shorter term rentals, the Privacy Act 1993 has a really broad scope and covers landlords and people offering accommodation – Airbnb hosts, for example. So that's where your summer-house scenario might come in. When identifiable information is recorded, there are certain obligations on part of the person who collects it. I mean it would be pretty horrifying and unethical for there to be secret recordings in hotel rooms, right?
There are even criminal entry points where if you make recordings of an intimate nature, where there's a reasonable expectation to be provided with privacy (like in a home situation), you could be liable under the Crimes Act 1961.
So what does that mean for the people who were kicked out in these situations?
It's all pointing to the fact that it seems problematic and essentially contrary to the law.
Even though in the case of the party where they were engaging in criminal conduct?
Sure there's an element of criminality with the drug-taking, but the police would be hesitant to take it further, because the way in which the evidence was gathered, by way of secret recording, is such that it would be inadmissible in court. If the video was unfairly obtained, if you didn't know you were being filmed, a breach of privacy or intrusion is such that the courts would think it's against the public's interest to allow that information in a court proceeding.
So if you're kicked out or have been filmed illegally, what can you do about it?
The problem now is that there are very limited enforcing principles. You can go to the Privacy Commissioner but the principles don't confer any rights to tenants. The Commissioner can investigate, engage and monitor compliance with the Privacy Act and make recommendations—sometimes they provide some compensation, but you can't sue anyone under it, and even so, going to court is super expensive.
So the situation is illegal but it's pretty hopeless?
In the last couple of years questions have been raised as to whether situations like this could be actionable in court. But the information disclosed has to be humiliating and offensive to a person, which is quite a high standard.
There's the case of Hosking v Runting, which established the independent tort of privacy. Celebrity Mike Hosking and his estranged wife were pushing the kids in a pram down the street and a gossip magazine took photographs for publication. The court held that there wasn't a breach as it would have had to include private facts that would be considered highly offensive to the reasonable person.
What if the facts could cause reputational damage? Say the dudes at the stag do lost their jobs over the drug-taking, for example?
I don't think it would meet the element of public interest, but sure, that's an interesting application and could be a good defence if it were to go to court.
A second case illustrates the threshold. There were two flatmates in a house, one installed a webcam above the shower—totally creepy, I know—and he made recordings of a female and kept the footage on his computer. The female's boyfriend happened to find the files on the computer. So the creep is liable under the Crimes Act for unlawfully recording the flatmate, but the female also sued the guy in tort for breach of privacy. The creep in question was found to be liable. Although the footage wasn't published it was found to be "an intrusion upon seclusion". Thing is, it's still hard to prove because the impact or actual damage is unclear. So in the cases of renters or bach-goers, you might definitely have a breach in privacy, but perhaps being kicked out or potential reputational damage mightn't cut it.
The whole thing is really dodgy and could be morally heinous but this principle is very different to causing damage. Sure there might be significant monetary (if you lost your job/house) distress, but ultimately you're living in another person's house, right? There are a bunch of scenarios at New Zealand workplaces where people were recorded. There's the case involving employees having sex in front of a glass building in Christchurch. Tortious responsibility wouldn't apply because there was no expectation of privacy. It was a clear glass building, and the duo ought to have expected to have known there was a risk of being seen. The lights were on for God's sake. I can't help you get out of that one.
So what you're saying is you're sweet if you're on a lease, but if you're staying in a bach, hidden camera footage might be illegal but it's hard to prove and costly to take to court. Rather, maybe chill on the party front and limit the drugs?
Yes, let's go with that.
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