Is covert photography legal? Parliamentarians, advocates mull law change

Monday, 9 June 2025

Politicians appear open to potential law changes that could broaden what constitutes a crime when creating or holding intimate images of others.

That’s in light of the prime minister’s deputy chief press secretary resigning over allegations he covertly recorded audio during sessions with sex workers and took photos of women without their knowledge.

Those included close-up images of women at the gym and supermarket, but also women at private addresses taken through a window from a distance.

Police spoke to Michael Forbes after a Wellington brothel complained, but didn’t charge him - only advising he should get help. He admitted he had made the recordings, police said, and has since publicly apologised and resigned from his top job at the Beehive.

Police said Forbes’ actions didn’t meet the threshold for prosecution - which has aghast advocates.

But consensus is lacking over exactly what law could change and how to do it.

Prime Minister Christopher Luxon was asked if he was considering any law changes, having said he had zero tolerance for any behaviour that made women feel unsafe.

“I think many Kiwis will be incredibly concerned with this issue, as I am too,” he said.

“I'm open to looking at our settings. We have a series of… laws, whether it's the Harmful Digital [Communications Act], whether it's privacy laws, whether it's new stalking laws, but obviously… we're open to looking at that further.”

Labour, too, was open to it, Barbara Edmonds - answering questions in Parliament in the leader Chris Hipkins’ absence - said their caucus would have a discussion.

The Green Party thought privacy laws should be strengthened, with co-leader Marama Davidson saying during her time as the former violence prevention minister, “these sorts of issues around privacy and consent across public spheres have long been a conversation”.

But Justice Minister Paul Goldsmith told RNZ criminalising the making of intimate audio recordings without consent would be a significant change.

“We can ask some questions about that but I wouldn't underestimate that that's a big change.”

Falling through the legal cracks

Canterbury University senior law lecturer Dr Cassandra Mudgway said Forbes’ actions were an “example of behaviour that really has fallen between the cracks”.

“What’s so awful and disturbing about this is that it’s so unknowable - that you can just be out in public, doing your everyday thing, going to the gym, and not realise that somebody is… invading a part of you.

“… how awful that is to then turn all the public spaces that you enjoy into potential places of danger or exploitation that you didn’t expect before.”

Victims were being confronted with the fact “that it’s not criminal in any way, that it’s legal, but it’s so intrusive”.

Mudgway said the case highlighted that as technology develops, there were new ways to cause gendered harm.

“We do need to really think much more carefully about technology-facilitated violence more broadly, and how our criminal law responds to that, but also our other laws.”

Does the Harmful Digital Communications Act need to change?

Former Labour MP Louisa Wall, who introduced specific legislation to crack down on the non-consensual sharing of intimate images, said the “issue here is that the current Harmful Digital Communications Act (HDCA) primarily criminalises the posting of digital communications with intent to cause harm — not the covert collection or possession of such material”.

“For Forbes’ actions to meet the threshold for a criminal offence, a new offence would need to be legislated: Non-Consensual Creation or Possession of Intimate or Intrusive Digital Content.

“This would address a clear gap in the current law.”

Wall said it would criminalise the creation and possession of intimate or intrusive content without consent.

That would recognise that such actions can cause significant harmand bring New Zealand in line “with emerging global standards”.

Or is it the Crimes Act?

Tika (a sexual harm charity) board member and online harm legal expert Arran Hunt said the impact on people who find out intimate content has been taken of them non-consensually can be extreme.

“… Once you find out and not knowing what's been done with it, that's the biggest fear. And people won't just go, ‘Well, I can't see it. I'm going to ignore it’.

“Where's the image gone? Who's it gone to? Where's it been seen?… You'll go looking for it and hunting for it, trying to find where this can be.

“You'll always imagine the worst case scenario. You're always wondering, who else has it gone to, and it can be devastating.”

Hunt thought the current definition of “intimate recording” in the Crimes Act could be broadened and extended to cover an intrusion into privacy.

“That there should be an expectation that you are in a private place, and you shouldn't be expecting people to have photographs through the windows, looking at you in your private place, or in your backyard, over a fence.”

When it came to changing the law, it was often about what was easiest to do. Privacy Act changes could be possible, but the Crimes Act “is the most obvious place just to tweak that legislation”.

What about the Privacy Act?

The Privacy Act regulates collecting, use and disclosure of personal information which includes audio and images.

A spokesperson from the Privacy Commission said in a statement that affected parties could contact its office if they wished to make a privacy complaint.

“The Privacy Act doesn’t limit the information people collect in their personal capacity unless their conduct reaches a threshold of being ‘highly offensive’,” the spokesperson said.

“Covert photography and recordings of intimate activity may qualify as ‘highly offensive’ due to the intrusion on dignity to the person being recorded.

“It’s not always illegal to record a conversation to which you are a party, but there are reasonable limits on that, and an agreement to have sex is not agreement to have that recorded.”

The spokesperson said outside of the Privacy Commission’s complaints process, highly offensive photography can also be a form of civil wrong - a privacy tort.

“A victim can also seek legal advice about bringing court action against a perpetrator for the tort of intrusion into seclusion.”