2 Mar 2015

Ex-worker welcomes Facebook privacy ruling

8:40 pm on 2 March 2015

The Human Rights Review Tribunal has awarded record damages of $168,000 against New Zealand's biggest credit union for breaches of the Privacy Act after it accessed a private Facebook page.

Facebook, privacy, Facebook

Photo: RNZ / Alexander Robertson

Former NZCU Baywide employee Karen Hammond has been awarded damages for harm the credit union caused by taking an image of a cake iced with swear words about the company from her private Facebook page and distributing it to employment agencies.

Read the full decision by the Human Rights Review Tribunal

Karen Hammond

Karen Hammond Photo: SUPPLIED

In March 2012, Ms Hammond uploaded to her Facebook page a picture of a cake made by her for a private dinner party for a close friend of hers, Jantha Gooding. Both Ms Hammond and Ms Gooding had recently left NZCU Baywide.

In its decision, the Human Rights Review Tribunal said what would otherwise have been an unexceptional set of circumstances was transformed by two factors. First, the top of the cake had been iced with the words "NZCU F**K YOU". The privacy setting on Ms Hammond's Facebook page meant only those accepted by her as "friends" had access to the photograph.

Second, the Tribunal said NZCU Baywide gained access to the Facebook page by forcing a young employee to provide access to the page and then taking a screenshot of the cake.

That screenshot was then distributed to multiple employment agencies in the Hawke's Bay area by email which, along with contemporaneous phone calls from NZCU Baywide, warned against employing Ms Hammond.

At the same time an internal email was sent by NZCU Baywide chief executive Gavin Earle to staff disclosing information about the circumstances in which Ms Hammond had earlier resigned. NZCU Baywide also placed severe pressure on her new employer to terminate her employment.

Ms Hammond said she was relieved and elated the tribunal had found the credit union committed a gross breach of her privacy.

She said it had confirmed what she had been saying for three years - that NZCU Baywide acted maliciously and unlawfully.

She said she lost employment opportunities, the case caused major grief for her family, and the financial impact meant her partner had to leave the region to find work.

NZCU Baywide said in a statement that it accepted the ruling and was genuinely sorry.

It said it would comment in more detail once it had digested the decision.

Credit union's actions 'shameful'

The tribunal said the humiliation, loss of dignity and injury to feelings in the case were at the serious end of the spectrum, making the damages of $168,000 both appropriate and necessary.

NZCU Baywide apologised to Ms Hammond during the hearing, but the tribunal dismissed this as insincere.

"That apology was delivered without any detectable note of sincerity. The tribunal was struck by the somewhat mechanical manner in which it was given," it said.

The tribunal said it saw few, if any, mitigating circumstances for NZCU Baywide.

"On the credibility findings we have made the actions of the senior executives ... were shameful. There was a gross over-reaction to news that Ms Hammond had made a cake for a private party held for Jantha Gooding," it said.

It said, had chief operations officer Grant Porter's personal animosity towards Ms Hammond been reined in and had more mature counsel prevailed, NZCU Baywide could have avoided the enormous harm inflicted on Ms Hammond and, eventually, upon itself.

"The entire episode was marked by personal animosity against Ms Hammond and an apparent desire on the part of some or all of the senior management team to exact revenge for what was in truth an act of kindness on the part of Ms Hammond for a close friend."

NZCU Baywide

Photo: RNZ / Peter Fowler

The tribunal members - chair Rodger Haines QC, Wendy Gilchrist and Brian Neeson - said they felt bound to draw attention to the lack of awareness, at senior management level, of the obligations and duties of NZCU Baywide under the Privacy Act.

It said warnings from then-chief financial officer Peter McAuley that privacy issues were raised by the proposed acquisition and dissemination of the photograph of the cake were ignored by other members of the management team including chief executive Gavin Earle.

"We acknowledge Mr Earle stated in his evidence that NZCU Baywide takes its obligations under the Privacy Act seriously. The short answer, however, is that on 12 and 13 April 2012 there were multiple failings at senior management level, failings which were inexcusable," the tribunal said.

The financial damages are the largest the tribunal has ordered. In addition, NZCU Baywide has been ordered to send a retraction to the employment consultancies it sent the Facebook image to.

Mr Earle has also been ordered to forward to all members of NZCU Baywide staff a retraction of his email to staff, together with an apology to Ms Hammond.

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