In Hoskings and anor v Runting and anor [2004] 2 LRC 65, the New Zealand court dismissed an action for publication of photos of plaintiff’s children taken in a public space without consent and held that freedom of expression outweighed right to privacy. It is apparent that the Hoskings case and Welter case are at odds, an indication that there is 150 still some doubt on whether the publication of private information obtained in a public setting is an infringement of the right to privacy. Given our close proximity to English law, I am inclined towards the Weller precedent. It was the contention of counsel for the defendant that there is a gap in our law regulating the use of public space by the media, advertising agencies and whether there is need for 155 consent of an individual where the portrayal is not offensive , humiliating or defamatory. While this jurisdiction does not have substantive legislation that regulates the use of private information in the public space within the framework of freedom of speech and expression, article 27 of the Constitution read together with article 17 of the ICCPR provides the legal framework to adjudicate disputes based on infringement of the right to privacy in a public 160 space. Of course there is need for substantive legislation to further clarify on the enjoyment of this right relative to freedom of speech and expression. The facts in the instant case An examination of the photographs reveals that the plaintiff is clearly visible . There are three other people in the picture including a car with a number plate. The target of the 165 photographer was to capture a scene in a public place and it happened that the plaintiff and others were part of that scene. The plaintiff was just part of the scene which also included cars and motor cycles. Counsel for the defendant submitted that the plaintiff assumed a risk of being photographed as he was in a public place. Voluntary assumption of risk is a concept in the law of 170 negligence which will defeat an action for negligence . The test is whether the claimant had knowledge of the risk and agreed to the risk . In Murray v Hurringay Arena [1951] 2, AAL.E.R 533 , a six year old was hit by a puck as he watched an ice hockey match, the court held there was no liability on the batsman as the claimant took the risk. This case is discussed at page 787 of Winfield and Jolowicz , 19th edition, Sweet & Maxwell. 6