The battle over what is public and what is private has always been a difficult one but it's become even more so with the introduction of the internet and camera phones, says district court judge David Harvey.
Speaking at a meeting of the Internet Safety Group in Auckland yesterday, he said the right to privacy in a public place is limited compared with an individual's expectation of privacy at home behind closed doors.
"There is no prohibition against taking photographs on a public street. Indeed, there is no prohibition against taking a photograph of a private property from a public street and I would think most New Zealanders would be quite unhappy if they were told they couldn't take a photo under such circumstances."
The question before law makers and courts however, is not so much how or where the photograph was taken, but what is done with the photograph.
One of the attendees at the meeting, InternetNZ's former vice president and IT lawyer Rick Shera, pointed to the reach and "permanence" of the internet as being a different medium to what has gone before.
"If I'm on the street and someone takes a snap of me I'm not too worried about that. What I am concerned about is what they then do with that picture." Shera discussed the idea of having the photo published in a newspaper.
"That's all right because I might be unhappy about it for a bit but it's tomorrow's fish and chips wrapper. But the internet is a permanent entity and that photo could be there for a long time to come."
Harvey warns that anyone taking a photo for the purposes of displaying it on a website is, in effect, becoming a publisher and is no different in that regard from a media outlet publishing a photograph.
"That's when motive and context become highly relevant in my opinion."
Harvey says current laws are already quite firm in regard to privacy.
"There are wide ranging amendments to definitions in the Films, Videos and Publications Act on the way. Deliberate and repeated misconduct by a photographer could be challenged under the Harassment Act and there are instances when the Privacy Act will also be deemed to be breached."
However, Harvey says no single law will ever be able to be absolute.
Harvey raised the difference between sitting in full view of the street in your front garden, where expectations of privacy are low, and swimming naked in your pool which is in the back garden behind a very high wall where privacy expectations could be quite high. But it was still not possible to be completely private. As Shera pointed out, the local council could be conducting a rates assessment of your area and have had hired a camera and a plane to photograph each house on the street while you were naked in your pool.