A law professor says it’s possible that a freedom camper recently photographed defecating amongst the rocks of a pristine beach may have had their privacy rights breached.

The story that was first published on Stuff describes how a woman photographed another woman, who armed with a handful of toilet paper, was squatting on the rocks at Waikawau beach, along the Thames coast. The photographer (also a freedom camper) allegedly showed the picture to a Thames – Coromandel District Council camping officer who issued the freedom camper with a $400 fine.

In recent years, there has been no shortage of anger from locals living near public recreational areas throughout New Zealand, outraged by rubbish and human waste being left in places of national significance.

Few people would have any sympathy for someone who defecates on or near a public beach. But no one would enjoy being caught on camera in the middle of such an act which begs the question - was this person’s right to privacy abused?

As Victoria University Law School Professor Nicole Moreham explains, there are two aspects of the torts in relation to that type of behaviour which could be interpreted differently.

“Do you have a reasonable expectation of privacy and whether the publication or intrusion is offensive? There is also the defence - whether the publication or taking of the image is justified because of legitimate public concern,” she says.

It’s strongly arguable, she says, in relation to the freedom camper, that ‘reasonable expectation of privacy’ is there.

Lawyers, she says, still have to ask themselves though whether even if there is a prima facie right to privacy, it is outweighed in these particular circumstances.

“We need to be a bit nuanced about whether there is a reasonable expectation of privacy with regard to what this person was doing. The fact that she was in a public place is not the end of the matter.  But maybe people’s feelings of disgust and current public concern about freedom camping, and the fact that this photograph doesn’t identify the woman, would be enough to persuade courts that there is a legitimate public interest in publishing it to draw attention to the seriousness of this issue,” she says.

Professor Moreham cites the example of trampers who might use the bush as a place to go to the toilet when there are not Department of Conservation toilets available. She says that a person photographed in those circumstances would probably have their privacy breached.

She says Courts in New Zealand and other comparable jurisdictions such as England and Wales have come up with factors to consider in relation to the expectation of privacy in a public place.

“Location is the first one. Was it a publicly accessible place and how accessible was it? Did the person duck behind the bushes or did the person conduct the activity in reasonably plain view, as appeared to be the case at the beach along the Thames coast,” she says.

The next question, she says, relates to what the person was doing and whether it was an extreme situation.

"For example; the case of broadcaster Mike Hosking’s children being photographed as they were being wheeled down the street by their mother many years ago was not found to be a breach of privacy, despite a case arguing that it was. But England’s top court held that it was a breach of privacy to publish photographs of model Naomi Campbell as she left a Narcotics Anonymous meeting. In both cases, the celebrities were being targeted by photographers but in Campbell the fact that the publication concerned sensitive information about her addiction tipped the balance.  New Zealand courts have said that the same would probably happen here," says Professor Nicole Moreham.