Privacy, damages for loss of dignity and injury to Feelings

The New Zealand Centre for Human Rights Law, Policy and Practice at the University of Auckland’s Faculty of Law analyses and discusses this well-known case from last year from a human rights perspective.

HAMMOND v CREDIT UNION BAYWIDE [2015] NZHRRT 6

Credit Union Baywide forced an employee to provide access to the Facebook page of Ms Hammond, a former employee. It then circulated detrimental material from it to four local human resources agencies.

The resulting case, Hammond v Credit Union Baywide, led to a significant review of the Human Rights Review Tribunal’s level of damages.

Ms Hammond alleged that NZCU Baywide had breached Information Privacy Principles 1 to 4 and 11. The Tribunal did not address Principles 1 to 4 because Ms Hammond failed to establish that there was a causal link between the alleged breaches and interference with her privacy in sections 66(1)(b)(i) and (iii) of the Privacy Act 1993, but went on to consider Principle 11.

The facts

Ms Hammond and Ms Gooding had resigned from NZCU Baywide. Ms Hammond then held a dinner party for ten of her friends, five of whom were still employed by NZCU Baywide, to cheer up Ms Gooding. She made a cake for the event that had been iced with the phrases “NZCU F*** YOU” and “C**T”. Ms Hammond uploaded a photo of the cake to her Facebook site, taking care to ensure the photograph could only be accessed by her “friends”.

Senior management at NZCU Baywide eventually became aware of the cake but was blocked from accessing the Facebook page with the photo. The Human Resources Manager forced one of Ms Hammond’s friends to open her Facebook page, took a screenshot of the cake and stored it on her computer. NZCU Baywide then contacted four local human resources agencies informing them of Ms Hammond’s actions.

Ms Hammond was unemployed for ten months and forced to seek employment in positions well below her experience and training, because she believed it would be unwise to seek employment through human resources agencies. She was unable to find employment in the finance field and sought employment as a receptionist, a job for which she was significantly over-qualified.

Breach of the disclosure limitation principle – Principle 11

Principle 11 requires that personal information not be disclosed for purposes other than those for which the information was obtained. NZCU Baywide formally conceded that it had breached Principle 11 but denied that there was any consequential interference with Ms Hammond’s privacy, because Ms Hammond had not established one of the forms of actual or potential harm contemplated by section 66(1)(b) of the Act.

Section 66 required Ms Hammond to establish two elements. The first was that NZCU Baywide had breached an information privacy principle – which it conceded – and the second that the action:

“(i) caused or may cause Ms Hammond loss, detriment, damage or injury; or

(ii) adversely affected, or may adversely affect, her rights, benefits, privileges, obligations, or interests; or

(iii) resulted in, or may result in, significant humiliation, significant loss of dignity, or significant injury to her feelings.”

While it was not necessary for Ms Hammond to establish all three elements, the Tribunal found all were satisfied on the facts.

Remedies

The Tribunal awarded the following remedies:

• a formal declaration under section 85(1) (a) of the Privacy Act that NZCU Baywide interfered with Ms Hammond’s privacy;

• damages under section 88(1) for pecuniary loss of $38,350 for lost income and $15,543.10 for legal expenses, loss of any benefit being $16,177.78 for “career regression” and $98,000 for humiliation, loss of dignity and injury to feelings;

• a restraining order;

• a requirement that NZCU Baywide remedy the interference by sending a retraction to the four human resources agencies and NZCU staff; and

• a training order to ensure NZCU complied with its obligations under the Privacy Act in the future.

There was no award of costs but a claim for disbursements was allowed.

The Tribunal noted that Principle 11 is about the responsibilities of the agency which has collected the personal information – it neither permits nor condones the disclosure of personal information on the grounds there has been supposed misconduct on the part of the individual. In any case, the icing was only meant in humour that was “none the worse for being somewhat direct, if not earthy in nature”.

Level of damages

The damages awarded in this case were at the most serious end of the scale. The Tribunal recounted a history of previous awards in relation to emotional harm, noting that the awards are fact-driven and vary widely. Cases can (roughly and descriptively, rather than prescriptively) be categorised into three bands:

• least serious – awards ranged upwards to $10,000;

• more serious – ranged between $10,000 to about $50,000;

• most serious – contemplated to be in excess of $50,000.

The Tribunal also identified some general principles to govern the award of damages for loss of dignity and injury to feelings. The most important of these include:

• there must be a causal connection (which may be assumed or inferred) between the action which is an interference with the privacy of an individual and the damages sought;

• the heads of damage in section 88(1)(c) are to be read disjunctively;

• the award of damages is to compensate for humiliation, loss of dignity and injury to feelings, not to punish the defendant;

• the very nature of the section 88(1)(c) heads of damages requires there be a subjective element to their assessment;

• “injury to the feelings” can include conditions such as anxiety and stress;

• in defining “loss of dignity”, guidance is given by Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497 at [53], where Iacobucci J stated: “Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits … Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued”;

• the award of damages must be an appropriate response to adequately compensate the aggrieved individual; and

• the Tribunal is not required to always take its lead from the High Court when awarding damages, especially because the Tribunal deals with a much larger number of cases.

Further, while noting the desirability of consistency in awards, the Tribunal enumerated the following countervailing principles: • each case is different;

• there is an inherently subjective element to the assessment of humiliation, loss of dignity and injury to feelings;

• the categorisation of “serious” cases will develop as society’s law develops; and

• past awards must be recalibrated in light of present day values.

This case summary was prepared by the New Zealand Centre for Human Rights Law, Policy and Practice at the Faculty of Law, Auckland University, and is reproduced here with permission.

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