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Speaker: Sex with the office lights on: Yes, you can have a reasonable expectation of privacy in a publicly visible place

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  • Bevan,

    Asking the "hard" questions. Brilliant!

    Wellington • Since Sep 2013 • 17 posts Report Reply

  • Andrew Easterbrook,

    I’m not sure I agree with Nicole on the civil aspects.

    I agree that “just because a bunch of people in a bar happened to see two people having sex, doesn’t mean it’s okay to film them and post the clip on YouTube.” Agreed on the offensiveness part too.

    But – just because you can have a reasonable expectation of privacy even if you did a thing in public, that doesn’t mean this particular couple's expectation was reasonable. The fact the publication was “offensive” should only count towards the second limb of the test and it seems that popular opinion is conflating the two. Surely the first limb can be failed through reckless disregard for one’s own privacy. I find it hard to believe the couple involved wouldn’t lose on the “reasonableness” requirement when they left the lights on, knowing there was a bar next door. I accept given they were allegedly having an affair, they probably did not intend to be viewed – but surely they were so reckless about being seen that any expectation was not “reasonable”.

    On a separate point, is there law on whether a person has a reasonable expectation of privacy in the fact they are having an affair (as opposed to the recording of said affair)? Would the analysis be different?

    Whangarei • Since Feb 2015 • 1 posts Report Reply

  • Grant McDougall,

    All very well and good, but I suspect it'll be divorce lawyers, not privacy lawyers, that'll be acting in this case it'd appear.

    Dunedin • Since Dec 2006 • 760 posts Report Reply

  • Sacha,

    Privacy Commissioner John Edwards discusses this. Useful commenters too.

    Ak • Since May 2008 • 19745 posts Report Reply

  • Russell Brown,

    Note that I've just replaced the original with a slightly amended version sent to me later by Nicole.

    Auckland • Since Nov 2006 • 22850 posts Report Reply

  • David Haywood,

    In terms of a expectations of privacy: the glass-coatings used on most modern office buildings (to prevent excessive solar gain) mean that the public cannot see into the interior of the building during the day. It's entirely possible that the couple in question were fully aware that the office interior wasn't visible during the day, and therefore "expected" that their activities would also not be visible at night.

    Unfortunately, however, the effect is reversed at night - meaning that those inside can't see out, but those outside can see (and film) what's going on inside the building.

    Just a point that others seem to have overlooked...

    Dunsandel • Since Nov 2006 • 1156 posts Report Reply

  • Sacha, in reply to David Haywood,

    t's entirely possible that the couple in question were fully aware that the office interior wasn't visible during the day, and therefore "expected" that their activities would also not be visible at night.

    seems reasonable

    Ak • Since May 2008 • 19745 posts Report Reply

  • Bart Janssen, in reply to David Haywood,

    and therefore "expected" that their activities would also not be visible at night.

    Really?

    Do you really think there was that much thought involved?

    Auckland • Since Nov 2006 • 4461 posts Report Reply

  • Craig Ranapia,

    This is interesting, and thanks for contributing Nicole. But law aside, it's still depressing (if not exactly surprising) seeing people elsewhere taking the view that if it's isn't illegal, there's nothing wrong with it right? (Anyone who thinks that's an unproblematic position needs to Google "GamerGate" on an empty stomach.)

    I guess I'm the kind of weirdo who's less offended by consensual sex than people who, in effect, filmed and published amateur porn without the participants' knowledge, let alone consent.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Steve Curtis,

    Somehow there has been a mix up of privacy of words spoken:

    He went on to apply that law to the Andrews’ case and said that, even though the accident occurred in a public place, the couple’s** conversations** were still private:

    And privacy of images, which is the substance in this case. As well it was an office not a bedroom.
    The issue of privacy arose over the Len Brown affair, that was given short shrift, so I dont see how two anonymous people can have any expectation of privacy at their place of work

    Auckland • Since Nov 2006 • 314 posts Report Reply

  • Steve Barnes,

    The test is quite simple. Would the action being filmed and published be performed in public by a reasonable person who was aware of his/her actions, if not then we can safely assume that they had an expectation of privacy. The problem then is can a senior insurance manager be considered reasonable and that the setting of the sun is a force majeure.

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • TracyMac,

    Good summary. And yeah, I'm with Craig on the whole filming and disseminating someone engaged in sexual activity without their consent really sucks aspect.

    The law shouldn't need to be invoked.

    Canberra, West Island • Since Nov 2006 • 701 posts Report Reply

  • Sofie Bribiesca, in reply to Sacha,

    seems reasonable

    NY Post think it could be so too

    It is understood that the pair thought the tinted windows in the office would stop anyone from looking in, TVNZ reported.

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • Ian Dalziel,

    People in glass houses…
    Can a place of work be a ‘dwellinghouse’?

    Peeping or peering into dwellinghouse
    (1)Every person is liable to a fine not exceeding $500 who is found by night without reasonable excuse—
    (a)peeping or peering into a dwellinghouse; or
    (b)loitering on any land on which a dwellinghouse is situated.
    (2)In this section the term night means the period commencing on the expiration of the first hour after sunset and ending at the beginning of the last hour before sunrise.

    I think a similar case of some one using a device to look into an office came up on PA some years ago…

    and then again there is this:

    Indecent exposure
    (1)Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, in or within view of any public place, intentionally and obscenely exposes any part of his or her genitals.
    (2)It is a defence in a prosecution under this section if the defendant proves that he or she had reasonable grounds for believing that he or she would not be observed.

    ends up as reasonable grounds for divorce possibly…

    Though I do feel there was a huge lack of empathy on the part of those who posted the videos in the public domain – smacks of self-righteous vigilantism or lack of thought about consequences (well, all round on that one)….

    It’s the old ‘don’t be a dick’ rule really – technology allows us to do stuff too easily that a little a thought might preclude…

    Christchurch • Since Dec 2006 • 7953 posts Report Reply

  • Ian Dalziel, in reply to Steve Barnes,

    The problem then is can a senior insurance manager be considered reasonable and that the setting of the sun is a force majeure.

    It could just be their mindset, insurance companies are f**king lots of people in Chchch, one way or another - perhaps it is just a case of karma running over dogma
    (or possibly dogme in this case)

    Christchurch • Since Dec 2006 • 7953 posts Report Reply

  • Paul Paul,

    A bit of a by-the-by, but does the fact that sex in public (let us say) was observed and no-one -- of many -- complained about indecent behavior ... does this fact mean that the bar for what is 'offensive' has been raised?

    Taranaki • Since Dec 2011 • 10 posts Report Reply

  • Craig Ranapia,

    It’s the old ‘don’t be a dick’ rule really – technology allows us to do stuff too easily that a little a thought might preclude…

    Absolutely. You can soundly argue that the law can’t anticipate technology, and how people will (ab)use it, and whenever legislators try they create more problems than they solve. Just look at the Copywrong PAS thread that refused to die, and is twitching occasionally. Already knotty copyright and intellectual property law is still playing catch-up with the very complex ways people use new(-ish) technology that was pure science fiction not so long ago. Maybe it always will.

    All that said, if you need to get a legal opinion before deciding to be an arsehole anyway? There should be a law against people like that. :)

    Of course, there’s another option: Plenty of things are legal but socially sanctioned. But in this particular instance, that might be a very long game indeed.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Geoff Lealand,

    ... and there may be just a touch of envy in the proceedings?

    Screen & Media Studies, U… • Since Oct 2007 • 2562 posts Report Reply

  • Sofie Bribiesca, in reply to Ian Dalziel,

    Though I do feel there was a huge lack of empathy on the part of those who posted the videos in the public domain ...

    Pam Corkery penned her dislike of the Pub patrons actions and the comments section indicates just how uncaring some people are.
    Also as noted in some comments, the bloody Harold cant get enough of posting the pic above her article that condemns just that.

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • Craig Ranapia, in reply to Sofie Bribiesca,

    Being in total agreement with Pam Corkery is not a natural or comfortable position for me but she's right. Fairly or not, The Carlton isn't getting anywhere near my "places to go in Christchurch" list.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Murray Cameron,

    In the immortal words of Ronnie Barker...

    "People who live in glass houses... shouldn't."

    Auckland • Since Feb 2015 • 1 posts Report Reply

  • Bart Janssen,

    What strikes me about this is the willingness of people to judge.

    They were bad to have sex in the office - I would never do that
    They were stupid to ... - I would never do that
    They filmed the couple having sex ... - I would never do that
    The posted photos etc ... - I would never do that

    And yet most of us do screw up. It turns out some of the behaviours might even have been illegal. Some of the behaviours could be classed as "being a dick". But honestly how many folks can say they have never been a dick or screwed up. Can Ms Corkery claim to have never gossiped, because frankly that's about all the patrons of the pub did, gossiping with today's technology is a bit different than it used to be, but it still isn't much more than "I saw Mr Smith snogging the CFO at the Xmas party".

    Best thing about the whole episode seems to have been that most folks don't consider sex an indecent act. Worst thing is the amount of sanctimonious preaching going on from people who at some time in their lives have almost certainly "done that" in some form or another.

    Of course here I am judging all those so quick to judge ...

    Auckland • Since Nov 2006 • 4461 posts Report Reply

  • Lilith __,

    Imagine if no one had got their phone out. Imagine if the pub-crowd had merely had a giggle and a good story to tell their families when they got home.

    Dunedin • Since Jul 2010 • 3895 posts Report Reply

  • Ian Dalziel, in reply to Murray Cameron,

    People who live in glass houses…

    a spooner full of sugar!

    Once there was an Hawaiian king whose hobby was collecting thrones, which he stored in the attic of his hut. Unfortunately, this hobby became an obsession, and greed got the better of him, when the weight of the thrones in the attic caused the grass structure to collapse. The thrones ended up falling upon the king, killing him instantly.
    The moral of this story: "Those who live in grass houses shouldn't stow thrones."

    Once again I originally heard this on one of Dennis Norden's radio shows...

    Christchurch • Since Dec 2006 • 7953 posts Report Reply

  • mark taslov,

    Imagine if no one had got their phone out. Imagine if the pub-crowd had merely had a giggle and a good story to tell their families when they got home.

    …has the makings of a winning tourism advertisement targeting those planning a trip to the 1970s

    Te Ika-a-Māui • Since Mar 2008 • 2281 posts Report Reply

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