Chapter 6: Protecting privacy

Privacy interests of children

In the issues paper we asked whether the privacy withholding ground should provide any express protection for the privacy interests of children.210 There was some degree of support for specific protection for children’s interests, such as through a “best interests of the child” withholding ground. However the level of opposition to further legislative provision was higher.

Two submissions, including one from the Children’s Commissioner, supported further guidance about the special position of children. The Media Freedom Committee suggested that the relevant Press Council guideline may be instructive. This guideline requires an exceptional public interest to outweigh the interests of the child.

The Ombudsmen confirmed that requests for personal information about children can be very complicated, citing issues such as the status of the requester (i.e. custodial parent, non-custodial parent, legal guardian, relative, caregiver), the age and capacity of the child (i.e. whether able to act for themselves or not), any court decisions about custody and access and whether there are safety issues.

The Ministry of Social Development gave examples of problems with the misuse of released information. In chapter 10 we note that one option could be the placing of conditions to control the re-use of information that is released, to address the risk that it is inappropriately posted on the internet.211

We do not recommend any change to the privacy withholding ground to deal specifically with the privacy interest of children. However, given the particular vulnerabilities of children and young people where privacy is concerned, we think that guidance about the issues that can arise, including consideration of public interests, would be valuable in highlighting the interests to be taken into account and their respective weight. This would be consistent with the approach taken in other contexts where the special position of children in relation to privacy issues is highlighted. For example, as well as the Press Council guideline, one of the privacy principles of the Broadcasting Standards Authority provides:212

Children’s vulnerability must be a prime concern to broadcasters, even where informed consent has been obtained. Where a broadcast breaches a child’s privacy, broadcasters shall satisfy themselves that the broadcast is in the child’s best interests, regardless of whether consent has been obtained.

As another example, in the review of the Privacy Act 1993, the Law Commission recommended that the special interests of children be taken into account in an amendment to information privacy principle 4 so that a person’s age would be taken into account in considering whether the collection of personal information is unfair or unreasonably intrusive, and that the Privacy Commissioner develop guidance about this new development.213

In developing guidance about children’s privacy interests under the official information legislation, consideration could be given to the Press Council guideline and reference should be made to New Zealand’s international obligations concerning the rights and best interests of the child. The Children’s Commissioner should be consulted in developing guidance in this area.

R21Guidance on the privacy withholding ground should deal with public interest considerations where the privacy interests of children are involved.

Issues Paper at Q24.

Chapter 10 at [10.131].

Broadcasting Standards Authority, Privacy Principles, principle 6.

Law Commission, above n 208, at R120.