Hammon v NZCU Baywide  NZHRRT 6 (2 March 2015)
The Human Rights Review Tribunal’s recent decision on the Privacy Act 1993 (“the Act”) raised the bar on damages that may be awarded for “severe” breaches of the Act. In particular, the Tribunal specifically focuses on compensating for humiliation caused when private information is used for an unintended purpose.
The alleged breaches of the Act arose out of a cake prepared by the plaintiff, Ms Hammond, for her former colleague, Ms Gooding which was posted on Ms Hammond’s facebook page. The features of the cake were a central part of the case, as it had been iced with the words “NZCU F*** YOU”, and on the side of the cake read the word “C***”.
To give the situation context, at the time the cake was made, Ms Gooding and Ms Hammond had recently left NZCU Baywide (“NZCU”) in Hawkes Bay. Although Ms Hammond was still being paid out for her notice period, she had ceased work. During their time as employees at NZCU, both women had experienced tensions and frustrations with the executive team members. This led to Ms Gooding being criticised harshly for her work, and after attending mediation, a settlement was reached and she resigned. Shortly after, Ms Hammond resigned on her own accord, not being able to see a future with NZCU.
Both Ms Gooding and Ms Hammond were well liked at NZCU, and staff were surprised by their departures. Ms Gooding had been particularly affected by the situation, being uncertain about her future career path. In order to try cheer her up, Ms Hammond held her a small dinner party. It was at this dinner party the cake was presented, and a photograph was taken by Ms Hammond and uploaded to her Facebook page. About 150 Facebook “friends” had access to the photo.
A couple of weeks later, the executive team at NZCU became aware of the photo. In order to obtain a copy, NZCU human resource manager Louise Alexandra, approached a junior member of the staff who was Facebook friends with Ms Hammond. After advising the staff member it was law and policy under her employee contract to allow Ms Alexandra access to the photo, she was granted access and took a screenshot of the cake.
Ms Alexandra then proceeded to send the photo out to at least four recruitment firms in the Hawkes Bay area, and warned them about employing Ms Hammond. When it was discovered Ms Hammond already had a job with a company called FinancePoint, the NZCU CEO sent the photo to the CEO, and also advised him that he had the right to dismiss Ms Hammond. When FinancePoint continued to employ Ms Hammond, the NZCU CEO ceased providing NZCU work to FinancePoint, which eventually resulted in Ms Hammond resigning.
Ms Hammond was unemployed for the next 10 months, and remains unable to find employment in her preferred field of finance. She has suffered humiliation in having to apply for jobs well below her skill set, and is constantly fearful of NZCU contacting prospective employers. NZCU’s actions also affected Ms Hammond’s relationship with her family and friends, as she has suffered the embarrassment of asking them for money to make ends meet.
Human Rights Review Tribunal Decision
In assessing whether there had been a breach of the Act by NZCU, the Tribunal focused on Privacy Principle 11. In summary, this Principle stipulates that personal information should not be disclosed for purposes other than those for which the information was obtained. It was conceded by NZCU that their disclosures of the photo breached this Principle.
As there had been a clear interference with Ms Hammond’s privacy under s 66(1) of the Act, the Tribunal went onto assess the remedy awarded to Ms Hammond under section 88(1) of the Act, damages may be awarded for pecuniary loss, loss of any benefit, and humiliation suffered by the plaintiff. While the Tribunal ultimately awarded sums for loss of income, legal expenses and career regression, their assessment of damages largely focused on the humiliation, loss of dignity, and injury to feelings suffered by Ms Hammond.
The Tribunal held the “sustained campaign” by NZCU against Ms Hammond which set out to cause as much humiliation and harm as possible meant their offending was at the serious end of the spectrum. When taking a holistic assessment for the severe humiliation and loss of dignity inflicted on Ms Hammond’s feelings, an award of $98,000 was deemed appropriate. This brought the total amount of damages to a record sum of $170,000.
This was a marked increase from previous awards made for humiliation, loss of dignify and injury to feelings. For example, in 2003 for a “serious” case an award of $40,000 was made. The Tribunal held there was a need to update awards to present day values, and the decision sees a significant deterrent being brought to bear on breaches of the Privacy Act which have a humiliating effect.