We often get asked about how much a complaint is “worth” in settlement terms, by both complainants and respondents. To be honest, very few of our complaints settle for money. The resolution is usually non-financial, like the release of information or a decent apology.
However, we want to be helpful, and make sure our process is fair for both parties, and so we’ve put together some information on recent settlements under the Privacy Act.
As we have discussed before, our process is focused on resolving complaints but there is no easy formula for ‘valuing’ a complaint. In the past we have seen settlements including financial compensation, apologies, donations to social service agencies, arrangements for the installation of security systems, commitments to staff training, policy changes, and even a fruit basket, or restaurant vouchers. What the parties settle on is entirely up to them and will depend on a number of factors including the harm experienced by the complainant, the nature of the breach, and the willingness to resolve the complaint.
There are three kinds of harm under section 66 of our Act which can be considered when deciding whether someone’s privacy has been interfered with:
If no reasonable settlement is reached through our process, the complainant will be entitled to take their complaint to the Human Rights Review Tribunal. The Tribunal has the same monetary jurisdiction as the District Court, that is up to $350,000, and is able to award damages and compel parties to take action. It is worth noting however:
For these reasons, complaints generally settle for a ‘discount’ if settled before reaching the Tribunal.
Awards in the Tribunal vary substantially, and are fact-dependent. Again this makes it difficult to accurately assess what a complaint is ‘worth’ in money terms. In Hammond v Credit Union Baywide  NZHRRT 6, the Tribunal reviewed recent awards and summarised:
 From this general overview it can be seen that awards for humiliation, loss of dignity and injury to feelings are fact-driven and vary widely. At the risk of over-simplification, however, it can be said there are presently three bands. At the less serious end of the scale awards have ranged upwards to $10,000. For more serious cases awards have ranged between $10,000 to about (say) $50,000. For the most serious category of cases, it is contemplated awards will be in excess of $50,000.
Most of the complaints we deal with are not factually similar to the case referenced above, but the comments are useful in setting out the current state of settlements in the Tribunal where there has been a serious interference with privacy. To reach the top band, there will usually have to be some very bad behaviour on the part of the respondent agency. We haven’t seen any awards near that level since the Hammond decision.
Other recent cases in the Tribunal that discuss harm include:
Recent OPC settlements
Below is a summary of some recent settlements our Office has facilitated. As mentioned above, complaints that settle without having to go to the Tribunal usually do so for a “discount”. This is not a complete or comprehensive scale, but may help you understand what some other complaints have settled for.
As you can see, there is a range, even for similar factual circumstances. It is important to provide evidence of real costs - such as doctor’s visits and counselling sessions - as well as a described experience of significant emotional harm. The threshold is high, and requires more than a fleeting feeling of upset or distress. This is information the respondent agency will have to consider in determining what they are able to offer.
It is important to remember that when you complain to our Office, it is very unlikely the outcome will be cash in your pocket. We only facilitate financial settlements where there has been a clear breach of a privacy principle and serious harm that has flowed from that breach. It’s also relevant to note that even where we have facilitated a settlement, we have no power to enforce it, if either party fails to uphold the agreement. In the unlikely event that happened, you’d need to seek independent advice.
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