Category: Central North Island

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The Human Rights Review Tribunal says a former Massey University extramural student society president suffered humiliation and significant injury to her feelings after a private letter addressed to her was leaked to a student magazine.

The woman was also subjected to sustained harassment from the respondent in this case, the society’s former vice president, who during a long running dispute sent her an average of 150 emails a week and made phone calls to her, forcing her to change her phone number twice in a year.

The respondent’s behaviour towards her in early 2013 became so worrying that she sought legal advice and arranged for a trespass notice to be issued against him. She also attempted unsuccessfully to remove him from his position as vice-president.

The woman described the respondent’s behaviour towards her as ‘extreme harassment’ and that his emails and phone calls often used profanities and contained threats. The harassment included an attempt by him to ‘confiscate’ her personal belongings in her university office.

In March 2013, the woman received a letter from a member of the society’s executive, purportedly on behalf of the executive. It was headed ‘Written Warning’ and contained extensive and serious allegations about her performance as president.

Shortly after she received the letter, she was interviewed by two members of the university magazine and shown a copy of the letter. One of the journalists told her it had been given to them by the respondent. The magazine later quoted excerpts from the letter in an article published in print and online in April 2013.

The woman said the impact of information in the three page letter being made public was humiliating and irrevocably damaged her reputation for hard work and ethics. Following the story’s publication, she received a deluge of emails from extramural students, many of them angry from what they assumed to be factual information in the story. She said she felt degraded by the flood of hate mail she received from strangers.

A doctor told the Tribunal that the woman suffered from stress and anxiety, including headaches and panic attacks, for which he had prescribed anxiety medication.

In her complaint to us, the woman named the then vice president and the university magazine as respondents.

We concluded that by disclosing the letter to the student magazine, the respondent had breached principle 11 of the Privacy Act. We then referred the case to the Director of Human Rights Proceedings who in turn brought proceedings before the Tribunal. The Tribunal ordered the respondent to pay the woman $18,000 and ordered him to undertake training in the Privacy Act.

Image credit: “Lettering for draftsmen, engineers and students; a practical system of freehand lettering for working drawings” (1917) Internet Archive Book Images Creative Commons Licence

IPP11 – disclosure, Human Rights Review Tribunal, complaints

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In the recent decision Taylor v Orcon Ltd, the Human Rights Review Tribunal ordered a telecommunications company, Orcon, to pay $25,000 in damages to Mr Taylor. This case sends a strong reminder to agencies to check the accuracy of personal information before using it.

Mr Taylor had a dispute with Orcon over a bill. Before the dispute was resolved, Orcon sent the debt to the collection agency, Baycorp. Baycorp then listed a payment default on Mr Taylor’s credit report with Veda Advantage.

The story has had quite a bit of media coverage, but none has yet covered the clear guidance the Human Rights Review Tribunal has given us about how to treat such cases in the future.

The Tribunal disagreed with the view we came to on the complaint and we’ve learned some important lessons.  

Mr Taylor complained to us, and we considered whether Orcon’s actions were a breach of principle 8 of the Act. Principle 8 says that agencies must take reasonable steps to make sure information it is uses is “accurate, up to date, complete, relevant and not misleading.”

We concluded Orcon had breached principle 8 by failing to take steps to ensure the accuracy of information relating to the Orcon default.

But we did not consider this breach caused Mr Taylor the harm he claimed (as required by section 66 of the Privacy Act). For an action to be an interference with privacy, there must be a breach of a privacy principle, which causes harm to the individual.

Mr Taylor claimed the Orcon default on his credit report caused him harm including:

• a finance company declined his application for a loan,
• he was unable to secure rental accommodation (because landlords do not want tenants with a negative credit rating)
• his family was significantly stressed and embarrassed.

We thought there were other contributing factors that caused Mr Taylor harm, not just Orcon’s actions. Accordingly, we concluded Orcon had not interfered with Mr Taylor’s privacy.

As part of the investigation, both the finance company and the property manager told us the Orcon default was not the sole or material reason for their decisions to decline Mr Taylor’s applications. Rather, those decisions were based on a combination of factors, of which the Orcon default was just one part.

The Tribunal agreed Orcon was in breach of principle 8 because they failed to take steps to determine whether a debt was in fact owed by Mr Taylor before the debt was referred to Baycorp.

But the Tribunal materially disagreed with the legal test we applied to determine whether the breach of principle 8 lead to interference with Mr Taylor’s privacy.

Causal connection

On the issue of ‘causal connection’ between the harm claimed by Mr Taylor and Orcon’s action in breaching principle 8, the Tribunal stated no clear causation standard has yet been established. But the purpose of the Act and the wording of the relevant provision should be considered. The causal connection standard set in section 66(1) of the Act requires evidence to show that harm has actually occurred or that it might occur.

The Tribunal disagreed with the causal connection standard we applied in our investigation, considering the threshold for harm in this case to be lower than the one we applied. In other words, it was enough that the Orcon default had “a real influence” or “more than minimal” influence upon Mr Taylor’s situation, and it did not have to be the sole or the material cause.

The Tribunal said it was sufficient for Mr Taylor to establish the Orcon’s default was a materially contributing cause leading to the complainant’s harm. Therefore the sole or the material cause assessment we followed was incorrect.

The Tribunal clearly articulated the need to consider the connection between the harm and the defendant’s action in the broad sense. It was sufficient the Orcon default was considered as a contributing factor by the finance company and the property manager when declining Mr Taylor’s applications. The fact that other adverse information was present on Mr Taylor’s credit file is irrelevant.

The Tribunal does not address the degree to which the Orcon default was a contributing factor to Mr Taylor’s harm, simply stating that in this case it was “more than minimal”, which was sufficient to establish an interference with Mr Taylor’s privacy. The decision is clear that the consequences on Mr Taylor were significant – specifically, the loss of a good credit rating and the fact that Mr Taylor and his family were caused “considerable anxiety and stress”.

While not every disputed debt would be in breach of principle 8, the Tribunal’s decision makes it clear agencies must take adequate steps to check the accuracy of the information before referring it to a debt collection agency.

The Tribunal is also clearly focused on ensuring adequate protection of an individual’s privacy by setting the causation standard at an attainable level.

Future implications

From now on, we will be applying the law in the way interpreted by the Tribunal. This means we will be getting tougher on respondents who have breached one of the principles.

Looking at the case from a slightly different point, it also has implications for credit reporting agencies that continue holding information about disputed debts, contrary to the Credit Reporting Privacy Code. We intend to take this up with credit reporting agencies and to focus on it in our 2016 annual review of those agencies’ reports on compliance with the Code.

IPP8 – accuracy, Human Rights Review Tribunal, Credit reporting, complaints

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In an earlier post, we discussed the Human Rights Review Tribunal decision in the case of Andrews v Commissioner of Police. The Police had successfully defended a Privacy Act case that Mr Andrews brought against them. They applied for $7,500 to $10,000 costs, but the Tribunal declined to award any costs at all.

The Police appealed this ‘zero costs’ decision to the High Court, on the basis that the Tribunal’s approach was wrong on several counts. For instance, they argued:

• that this Tribunal, under its current Chairperson, was taking a different approach to costs from previous Tribunal decisions, and was not entitled to change its mind in the way it had
• that the Tribunal’s approach was inconsistent with existing High Court authority and the Tribunal was bound by that authority
• that while preserving access to justice was important, the starting point should be the usual presumption that a successful litigant will get a reasonable contribution to their costs
• Mr Andrews’ ability to pay costs should not have been treated as significant.

In a carefully considered decision, Justice Mallon has dismissed the Police appeal.

She agreed the existing High Court authorities had tended to accept the earlier Tribunal’s approach that costs are generally available for a successful litigant. However, those High Court cases were different from Mr Andrews’ case in many respects. In particular, none of them involved an individual (especially a vulnerable individual) taking a claim against the State. None had been claims involving an important and novel point of law. None had involved a prisoner whose ability to pay and rehabilitation needs should be considered.

Justice Mallon found that the Tribunal was entitled to revisit its previous approach to costs. The Tribunal was not behaving unreasonably or unpredictably. It had clearly signalled its intention to reconsider the issue of costs (Heather v IDEA Services Ltd and Holmes v Ministry of Social Development) and had also clearly stated the reasons why it wanted to do so.

Even more than that, Justice Mallon expressed support for the different approach the Tribunal had taken. To summarise some of the main points:

• statutory tribunals are meant to be quick, cheap and accessible, and large awards of costs could undermine their ability to do that job
• section 105 of the Human Rights Act makes it plain that the Human Rights Review Tribunal’s jurisdiction is different from that of the ordinary civil courts because Parliament has given the Tribunal a great deal of latitude and flexibility
• Public or constitutional issues arise when, for example, individuals who are potentially vulnerable can challenge the exercise of State power over them in the Tribunal. The discretion to award costs must promote the protection of human rights, not negate it, particularly when claims against the State are involved
• Many things affect costs and one size does not fit all. A range of factors may be relevant. The  motivations and behaviour of the parties are particularly important – indeed, “… in the case of an individual asserting a breach of important rights by a state agency, a possible starting point might be that no costs are to be ordered unless the claim (or the conduct of it) is frivolous or vexatious, or was activated by improper motives”.

Mr Andrews had brought a claim that was important to him and about which he was genuine. Unlike litigants in the previous High Court authorities, the proceedings were not hopeless, he was not vexatious, and he had not unnecessarily prolonged proceedings or unreasonably rejected a settlement offer

The Tribunal was correct to have regard to Mr Andrews’ situation, his ability to pay, and the impact on his rehabilitation that a costs award would have

The claim also involved a novel and important point of law (how the Criminal Disclosure Act interacts with the Privacy Act).

It was always going to be difficult for the Police to persuade the Court to reverse a highly discretionary Tribunal decision. But the High Court’s decision is especially welcome because it provides real support for the new way in which the Tribunal approaches the question of costs in human rights cases, particularly for cases involving individuals and State agencies that are exercising power over them.

It will be interesting to see how questions of costs play out in cases brought against private sector agencies, where the ‘constitutional’ element is less obvious. I suggest that the motivations of the parties, and the way in which they conduct the proceedings will be particularly important in those cases.

Human Rights Review Tribunal, law enforcement

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