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New Zealand: OPC releases blog post on awarding damages for emotional harm caused by a privacy breach

The Office of the Privacy Commissioner ('OPC') issued, on 4 August 2021, a blog post relating to how damages are calculated when a claim based on emotional harm, caused by a privacy breach, is brought to the Human Rights Review Tribunal. In particular, the OPC highlighted that as damages are compensatory rather than punitive, the aim for the Tribunal is to compensate individuals for specific harm rather than punish a defendant's bad behaviour. Furthermore, the OPC noted the Tribunal can award damages if, as a result of a privacy breach, the complainant:

  • suffered a pecuniary loss;
  • reasonably incurred expenses;
  • lost a benefit that they might reasonably have expected; or
  • suffered humiliation, loss of dignity, and injury to feelings.

In addition, the OPC stated that an award will likely be higher depending on the severity of the breach and the amount of harm caused. Moreover, the OPC noted that because damages are compensatory, complainants are less likely to be awarded damages if they cannot show that their harm was a direct result of the privacy breach. Finally, the OPC highlighted that the Tribunal will consider exacerbating and mitigating factors, in relation to the conduct of the defendant, when assessing the amount to award to the complainant, alongside the conduct of the complainant. For example, the Tribunal has considered that one mitigating factor they will consider on behalf of the defendant, is the presence of an apology.

You can read the blog post here.