SECTION B - PROTECTING PRIVACY: Traditionally no protection -> change, but no complete protection

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1 SECTION B - PROTECTING PRIVACY: Traditionally no protection -> change, but no complete protection 2. PRIVACY ACT NZ implements international standards <- handling of personal info/data - Privacy give way to public peril - Existing -> difficulty when applied to protecting ordinary/commonplace facts about individuals (e.g. shop, consumer preference) NOTE: Privacy Act vs. Breach of Confidence - Catches ALL information (unlike equitable action for confidence/tort of privacy) -> technologically neutral storage medium doesn t matter - Types of personal information: Name, photo/video, birthday, address, /mobile, bank, health records, purchase records - Act governs the collection, use and disclosure There are 12 Privacy Principles (s 6) Overseas: Information privacy law (fair information practices/data protection principles) Summary of Principles: 1. Organisation can only collect personal information relevant to its legitimate purposes (Clothing retailer can t collect about health) 2. Personal information must be collected from the subject directly (Can t ask A to provide B s ) 3. Subjects must be told information about them is being collected, by whom, why and who it is to be shared with (takes pic, intends to show in shop, MUST TELL) 4. Personal information must not be collected by unfair or intrusive means (change room photo <- not allowed) 5. Personal information must be held securely (protected from unauthorized access or loss) NOTE security breach guidelines (uni keeps marks secret) - Breach of security not automatic breach of principle 5 6. Individuals must be allowed to access their personal information 7. Individuals have the right to request correction of their personal information 8. An organization must ensure personal information is up to date and accurate before using it (Can t stop graduation if you were falsely accused of unpaid fine) 9. Personal information must not be kept for longer than reasonably necessary (Enter for competition, not kept after competition ends) 10. Personal information can only be used for the purposes it is collected for (info not used beyond competition) 11. Personal information held by an organization cannot be disclosed unless this was a purpose it was collected for (see principle 3 give information for intern ok, if tick) 12. An organization cannot assign the same unique identifier that another organization has assigned to the individual (Driver s licence number not the same as uni ID number) NOTE Privacy Commissioner can issue Codes of Practice for particular sectors varying scope and application of above principles. Several exist E.g. Health Information Privacy Code, Credit Reporting Privacy Code (3) Exclusion from Privacy Act News media excluded from the principles for news activities

2 - Must comply with Principles 6 & 7 Other exclusions: - Other exclusions include Parliament, courts & Tribunals (2) - Personal information collected/held by an individual for their personal, family or household affairs S ENFORCEMENT AND REMEDIES No access to regular courts except appeals on narrow points of legal interpretation High Court: For denial of access to information (Principle 6) by public sector agencies Complaints Procedure: Conciliation/Mediation -> PRIVACY COMMISSIONER Unsuccessful -> Remedies: injunctions/damages (no harm = no damage) (2) Hamilton v The Deanery 2000 Ltd (2003) HRRT 36/02 - Model sought max damage ($200,000) - Tribunal awarded $40,000 for humiliation, loss of dignity and injury to feelings Hammond v Credit union Baywide - Posted cake photo on her FB page (Tribunal awarded $168,000 highest ever) - Ex-employer breached privacy act & tried to stop others from employing her 2.2 EXCEPTIONS - Non-compliance necessary for purposes of law enforcement; or - Statistical research Rules and safeguards governing: 1. Data matching between Government agencies 2. Public registers 3. UNSOLICITED ELECTRONIC MESSAGES ACT 2007 (SPAM ACT) Act came into force on 5 September 2007 The UEMA does not create criminal liability. Only creates statutory civil liability events and pecuniary penalties Unsolicited message = junk mail -> Spam Section 3: - Prohibit unsolicited commercial electronic messages - Safer, more secure environment - Reduce impediments/costs - Include accurate info about authoriser of message sent - Prohibits address-harvesting The Act covers s, instant messaging, mobile phone messaging, and fax (1) First, the Act prohibits the sending of any unsolicited commercial electronic message (UCEM) (s9). Checklist: Electronic, commercial, unsolicited? (3) CEM can be sent with CONSENT from recipient

3 Consent: Express, inferred or deemed: (3) - Express = direct signal, e.g. ticking box on a site - Inferred = conduct & business & other relationship of the sender & recipient, e.g. provided , general expectation of follow-up - Deemed -> S4 o published on website o No statement you don t want UEM o Relevant to business (2) Secondly, the Act also places restrictions on practices relating to the sending of commercial electronic messages (CEM): Breaches of the UEMA A breach of any of these provisions results in a civil liability event: Act enforced by Department of Internal Affairs. - Investigates complaints on spam/acts when there are breaches of UEMA - Wide range of options to enforce provisions: IA response -> Injunction/damages

4 SECTION C LIABILITY IN CONTRACT Agreement between two or more persons (parties) to the contract A set of promises that the law will enforce 2. ELEMENTS OF A CONTRACT The Schematic approach: ( = agreement freely made) 1. Offer 2. Acceptance 3. Intention to create legal relations 4. Consideration Other factors: (not covered in depth) - A lack of genuine consent (subjective) to the agreement (e.g., threat, blackmail) - A lack of contractual capacity (e.g., minor, but binding 18+) - The subject matter of the contract is illegal (e.g., a contract to commit a crime) - A misrepresentation/mistake, affect genuine consent 2.1 AGREEMENT Agreement: Based on analysis of offer + acceptance Offer: Indication one is willing to enter into contract on particular terms - Doesn t matter who s the buyer/seller Offeror: person making the offer Offeree: Person offer made to Offer usually identified by specific terms, which are capable of acceptance - Don t have to use the word offer - Offered to A (exclusively). A reject, B wants offer, technically B is making offer Examples: An offer can even be made to the world at large: Carlill v Carbolic Smoke Ball Company Ltd - Claims that if you catch the flu, the smoke ball will cure it - Carlill used it & got the flue, she wanted the 100 pounds - Argument: It was a bet, I don t have to pay as bets are illegal - Set aside money in bank (intention), Carlill gave consideration (use) - Shows that you can make an offer to the world, ANYONE can accept Usually ads = invitation to treat - Switch to Slingtshot free xxx = Offer, you don t negotiate - Harvey Norman advert: Wont have enough to sell to everyone, invitation to treat due to limited stock. Shop CAN refuse to sell you something - Order form = invitation to treat, you fill it in, YOU made an offer, them processing = acceptance - Sell now = offer, bid = invitation to treat Example:

5 Pharmaceutical Society of Great Britain v Boots Cash Chemist - Stock on shelf = offer, put in basket = accept <- NOT TRUE - Stock simply invitation to treat Puffs: General expression/exaggeration concerning quality of good - Opinions, not facts An offer must be communicated to the offeree An offer may be withdrawn by offeror any time prior to acceptance (revocation) E.g. offer open till X - If you want to buy it, don t have cash, need separate offer to keep offer open - Perishable, fluctuating goods offer don t last Revocation of an offer must be communicated to the offeree - Promised to keep offer open, can t withdraw Acceptance: Indication a person agrees to be bound by particular terms (Accept, reject, counter, request further information) Accept Offer: Requires Absolute Yes - Accept precise terms (otherwise counter, other person accept/reject) - Can be oral/written Communication of the acceptance of the offer - Reason = doesn t matter - Must know about offer to claim reward - COMMUNICATION OF THE ACCEPTANCE, complete when other person knows Postal Rule: 1. An offer made by post/letter is not effective until received by the offeree. 2. Acceptance is effective as soon as it is posted. 3. For revocation to be effective, it must be received by the offeree before they post their letter of acceptance - Long distance, telephoning/faxing, this doesn t apply - You can stipulate the postal rule so it does NOT apply Carlill v Carbolic Smoke Ball Company Ltd - Tried to argue no acceptance as you must communicate acceptance - Judge said: Acceptance is when Mrs Carlill used the smoke balls The offer can only be accepted by the person to whom it is directed (An agent may accept an offer on behalf of the principal provided the agent has authority to do so) The offeror cannot impose silence as the means of acceptance:

6 Felthouse v Bindley - Uncle, nephew, negotiate about a horse - Uncle: If I don t hear from you further, the horse is mine - Horse got auctioned & uncle wants to claim it - Judge says no - Silence is ambiguous -> no liability Rejection of Offer: End, cannot be later accepted, needs to be renewed Counter Offer: Precise terms not accepted, offeree wants to negotiate Hyde v Wrench - Vendor offered to sell his farm for $1,000 - Purchaser offered $900 - Vendor rejects - Purchaser agrees to buy for $1,000, it s a new offer - COUNTER OFFER TERMINATES ORIGINAL OFFER A request for further information or a counter offer? Hard to tell Example: Stevenson Jacques v McLean (1880) - Maclean: Will sell at 40% per ton open till Monday - SJ: 8am Mon Please wire whether you will accept 40% for delivery over 2 months or if not, longest limit you would give - Maclean: No response - Maclean: 1:25 pm telegrams SJ: Iron sold to 3 rd party - SJ: 1:34pm by telegram - 8am merely request for further information, so it was still capable of being accepted - Revocation MUST be communicated Harvey v Facey - Requested info for lowest price for bumper hall, defendant didn t sell - Ratio: Defendant s statement that the lowest price = $900 wasn t capable of being accepted 2.2 CONTRACTUAL INTENTION If an agreement is to have legal effect it is necessary that the parties have intended their agreement to have this quality. Exception: where there is clear evidence of a contrary intention Balfour v Balfour - Married, lives in Sri Lanka - No intention for legal intention - Mr. pays Mrs $30,000, stops, didn t win case when she sued him - Case of social/domestic arrangement

7 2.3 CONSIDERATION The concept of consideration is most easily thought of as the price paid by one party for the other s promise to do something. - Promise =/= performance - Promise/benefit must be paid for Concept of quid pro quo Consideration is the price paid for a promise or benefit - Mowing lawn =/= consideration, consideration = promise Consideration may be a benefit to the person against whom the promise is to be enforced or a detriment to the person enforcing the promise - It s real, has value (doesn t have to be economical) Peppercorn principle: Unconcerned with how adequate promise is - Buy a galleon of oil + a token, it still is part of the contract - Past consideration is not valid consideration: Re McArdle - In consideration of your carrying out certain alterations & improvements to the property shall repay you the sum of $488 - Promise given AFTER improvements made, past consideration isn t consideration Deeds Avoid need for consideration, but enforceable obligation <- created by deed - Written agreement + person involved to witness - Formal legal document, signed, witnessed - Enforceable due to formal structure - Witness = IMPORTANT - Undertaken -> shows seriousness of consideration Deeds: Ensure promise/obligation met without need proving contract 3. FORMS OF CONTRACTS Doesn t have to be in a particular form (written, oral), as long as 3 factors met Exception: Property Law Act 2007 MUST BE IN WRITING Any contract for the sale or other disposition of land which must be in writing or its terms recorded in writing - Contract/written record = signed by the party against whom the contract is sought to be enforced (i.e. defendant) (Section 24) guarantees = Contract where one agrees to answer to another person for the debt/default/liability of 3 rd party -> in writing, signed by guarantor - Guarantees, mortgages, contract for sale of land, lease for 1 year +, others don t worry for now

8 4. TERMS OF CONTRACT Obligations = terms of contract Expressed or Implied Express Terms: Thought about expressly agreed upon & incorporated into contract - Doesn t have to be in writing Implied Terms Didn t discuss, should ve been in terms Implied by: i. The courts: Later date, find non-expressed terms, gives effect to them - Examples: Looks to a model contract, (e.g. employment contract) - Imply a term the parties had forgotten/not foreseen, presumes intention & implies the term would ve been agreed IF thought about - Basis such term ought to exist in contract (e.g. reasonable skill/care<-service) ii. Statute - Examples: S16 Sale of Goods Act 1908: Fit for purpose (buyer s intent), use them provided that use was made known to seller/clear to sell Section 6 Consumer Guarantees Act 1993: Guarantees goods = acceptable quality 5. BREACH OF CONTRACT Doctrine of Privity: Only parties to a contract can enforce contract Mostly performed correct, some not but NO liability for either party - NO liability example: Paid to paint mum s house -> didn t -> mum can t really sue Wrongfully performed -> breach -> innocent party has legal redress Minor: Damages Serious: End + claim damages Damages: Make good of damages suffered (compensatory) - Expectation loss: Put innocent party -> same financial position if performed right - Reliance loss: Compensate for cost incurred (NOT punish, just recover) - CANNOT get BOTH reliance + expectation (Reliance: don t know profit, but know loss) - Emotional/reputation compensation not allowed Principles of awards of damages: Normal loss: Loss likely foresee if contract breached (extraordinary loss -> shouldn t have known) AND loss defendant should ve contemplated; was in defendant s contemplation due to defendant s knowledge of special circumstances (price risk into contract) Hadley v Baxendale - Miller: Dry shaft (operates mill) - Courier takes to London to fix, breach by late delivery (no profit) - Failing to deliver -> loss <- courier didn t know (extraordinary loss) therefore can t claim, but if it was made known to them, then they CAN

9 2. Damages are compensatory: Possible problem with quantification Jarvis v Swan Tours - Switzerland for holiday, bad holiday - Rights broken, claimed damages - Got to be able to show amount to sue, did, hence got compensated Chaplin v Hicks - Chaplin: Beauty contest - Newspaper choose 50 most beautiful, 12 gets interview - Chaplin in 50 but didn t get interview - Lost out on chance, court will compensate you Anglia TV v Reed - Def. pay for $ plaintiff incurred before contract - Reed was to appear in TV, done previous script work etc., Reed withdrew, Anglia TV incurred loss - Loss incurred prior to contract (reliance loss), therefore Reed liable 3. Plaintiff s duty to mitigate - Try reduce damages themselves, if not -> won t reward as much damage 4. Agreed damages: Penalties/genuine pre-estimate loss? - Broken deadline -> pay <- good faith loss estimation - Can be terminated IF contracted entered into under misrepresentation Contractual Remedies Act Innocent party may be entitled to terminate AND seek damage Termination (or cancellation) if: - Repudiation (party in breach -> won t perform contract MUST BE DEFINITE) - Serious breach: Terms essential to innocent party = breached OR effect of breach substantially alter distribution of benefits/burden MUST LIST IF ESSENTIAL - Cancellation: Most give notice, Remedy = cancellation and/or damages Non compensatory remedies Specific performance for: - Sale of land (land is irreplaceable) - Unique, individual items Injunction: - Prevent someone breaking contract (rare) - Usually can exit, if you pay for damages - E.g. stop peopling selling in a place CONSUMER LAW PART A: FAIR TRADING ACT 1986 Purpose provide environment where: (1) Interest of consumer = protected (2) Businesses compete effectively (3) Consumers/businesses participate confidently