What action can I take when a person takes a photo of themselves in my underwear while a guest of my house and I am absent?

Question Details: A guest at my house recently took a photo of themselves on a cell phone of themselves in my underwear without my knowledge while I was out of the house. I own the phone and the person who took the photo has been borrowing it. I only became aware of the photo when I went to use the phone to send a picture message. I went to the police and they said that it would only be illegal if the picture was posted to the internet from the phone. I have asked the person for an explanation but one has not been forthcoming. Is there anything I can do?

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Answers by Lawyers

Community Law Wellington & Hutt Valley

Unfortunately you do not have a strong case in privacy law.

To be liable under the "tort of privacy", the guest would need to have published the photo or, possibly, taken the photo of you. Here, the photo was not published and you did not feature in it.

To be liable under the Privacy Act, the photo taken by the guest would need to be "personal information" - information about an identifiable individual. The photo is unlikely to be personal information, because the underwear alone is not information about you. Further, the photo was never published. Considering that the person was a guest in the house, that you were allowing them to use the phone, and that the photo was of them and not of you, your guest is unlikely to have breached the Privacy Act.

Nonetheless, you may choose to lodge a complaint with the Privacy Commissioner, who can investigate and further consider whether the Privacy Act has been breached. A link to the Commission's website with the relevant form to fill out is here: privacy.org.nz

Answered 5 Feb 2013. The IMPORTANT NOTICE below is part of this answer.

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