Source: New Zealand Privacy Commissioner – Blog
When caught out by her employer shopping online during working hours, a woman’s attempt to claim reparations for humiliation and distress was thrown out by the Human Right’s Review Tribunal when a series of light-hearted, emoji-filled messages between the woman and her employer revealed that there was no evidence of harm.
The online shopping incident
A woman bought shoes online from Betty’s Empire Limited during work time, using her workplace address for delivery.
On receipt of the woman’s order, a Betty’s Empire employee realised he knew someone at her place of work and thought the delivery address did not match the one he was personally familiar with. He sent a copy of the invoice to his contact and asked whether the delivery address was correct.
When the woman found out her employer knew about her shopping, she contacted the online customer service team at Betty’s Empire to cancel the order and complain about the sharing of her order with her employer. Betty’s Empire ordered a courier to uplift the shoes from her. She was provided with an apology, a full refund, and offered a $200 credit. Betty’s Empire issued a warning to the employee involved.
The woman contacted the Office of the Privacy Commissioner to complain. She said she felt violated and stressed following the incident and that it had caused animosity in her workplace.
The Privacy Commissioner’s findings – no significant humiliation
The Office of the Privacy Commissioner (OPC) found that the woman’s complaint raised issues under principle 11 of the Privacy Act 1993. Principle 11 says that agencies that hold personal information about an individual must not disclose that information, unless one of the exceptions listed in principle 11 applies.
In order to find an interference with the woman’s privacy OPC had to be satisfied that Betty’s Empire breached principle 11, and that the woman had been harmed, as defined in section 66(1)(b) of the Privacy Act 1993, by that breach.
OPC found that while the woman appeared to be annoyed and embarrassed by the actions of Betty’s Empire, she was not significantly humiliated. As Betty’s Empire acknowledged the breach, took steps to ensure the mistake did not happen again, apologised, and offered the woman a $200 credit, OPC closed the file.
Following this investigation, the woman took her case to the Human Rights Review Tribunal.
The Human Rights Review Tribunal decision [HRRT 009/2019] – no interference with privacy
The Human Rights Review Tribunal did not accept the woman’s evidence of harm, which included being paranoid to shop online and that retail therapy was no longer a “thing”.
The Tribunal noted that when her employer received the receipt from Betty’s Empire, they sent her a message with a photo of her online shopping order stating, “I see your (sic) being productive at work”. This was accompanied by three emojis, two of them showing laughing faces.
Rather than embarrassment, the woman’s response to her employer was to acknowledge that while she was “snapped”, she referred to her employer as also shopping online during work hours. She also added emojis showing laughing faces to her reply.
The Tribunal was not satisfied that the breach of privacy principle 11 by Betty’s Empire caused the woman harm and ruled that there had been no interference with her privacy. The case was dismissed, and no damages were awarded.
No Costs award against the unsuccessful plaintiff
Betty’s Empire sought costs of $6,000 against the woman, on the grounds that her case had brought discredit to their business.
The Tribunal dismissed the application for costs stating that the purpose of a costs order is not to punish an unsuccessful party, and that the prospect of an adverse costs award may discourage others from bringing proceedings to ‘the inexpensive and accessible form of justice which is the hallmark and strength of a tribunal’.
As stated in an earlier case, apart from the Tribunal, there is no other forum for a plaintiff to test an agency’s compliance with the Privacy Act. In this case, the Tribunal was the only forum for her to seek a remedy for the admitted breach of privacy principle 11. While the Tribunal can make costs awards against unsuccessful plaintiffs where a claim is found to be without merit or justification, the plaintiff’s failure to properly articulate appropriate remedies did not justify a costs award.
