27 Jul 2007

Privacy protection in the courts: The Jane Doe case

by John Carroll, Gretchen Bennett

A recent decision the Victorian County Court hedges its bets by following both United States and United Kingdom approaches to privacy protection.

The decision of Jane Doe v Australian Broadcasting Corporation [2007] VCC 281 is the second judgment in Australia to award a plaintiff damages for conduct that amounts to a breach of an individual's personal privacy. Doe v ABC adds a new layer to the protection of privacy in Australia because it applies common law approaches from both the United Kingdom and the United States of America. This common law remedy is of course available in addition to the protection afforded by privacy legislation. It is a reminder that the common law is flexible enough to provide remedies in innovative ways to compensate individuals injured as a result of unjustifiable conduct.

Facts of the case

The applicant (known as Jane Doe) had been attacked and raped by her estranged husband, YZ. YZ was charged and convicted with two counts of rape and one further count of common assault.

On the day that YZ's sentence was handed down, the radio news service reported on the case. The news report identified YZ by name, revealed that the offences had occurred in Jane Doe's home, named the suburb in which her home was located, described the part of Melbourne the suburb was in, and identified Jane Doe as the victim of the crimes, referring to her by name. Ms Doe claimed that she suffered a psychiatric injury as a result of the publicity. She claimed that the publicity was humiliating and distressing and caused her to withdraw from ordinary social contact for two years.

The publication of this information was found to be in breach of section 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic). Section 4(1A) makes it an offence to publish information which identifies a victim of sexual assault.

Ms Doe claimed damages resulting from the broadcasts on four grounds: breach of statutory duty; negligence; breach of privacy; and breach of confidence. Justice Hampel found in Ms Doe's favour on all four grounds and awarded her $234,190 in damages.

Protection of privacy - the law before this case

Until 2001, the often touted general legal principle was that the common law in Australia did not protect privacy. To be eligible for damages, a breach of privacy had to be able to be characterised as a civil wrong recognised by the Court, for example, assault, battery, trespass or breach of confidence.

In 2001 the High Court handed down its decision of ABC v Lenah Game Meats (2001) 208 CLR 199. The High Court did not go as far as to say that there was now a specific right to claim damages for breach of privacy. What the High Court did say, however, was that there was no bar to the development of such an action. The High Court looked at international developments in this area. Chief Justice Gleeson was seemingly impressed by developments in the law of breach of confidence in the UK which afforded protection for some classes of breach of privacy. Other members of the High Court appeared to advocate the US approach of a separate tort of invasion of privacy.

Since then, there have been very few cases in Australia which have canvassed this issue. The most daring of recent decisions was the Queensland District Court decision of Grosse v Purvis (2003) Aust Torts Reports 81-706 in which $178,000 in damages was awarded for a course of conduct analogous to stalking. Damages were awarded on the basis of a tort of invasion of privacy. By contrast, in a case decided by a single judge in the Victorian Supreme Court in 2004 (Giller v Procopets [2004] VSC 113) the Court declined to find the existence of a tort of invasion of privacy because, "the law has not developed to the point where the law in Australia recognises an action for breach of privacy".

As Justice Hampel herself commented, the decision in Doe v ABC takes "the next incremental step" in the protection of privacy at the common law level in Australia. In this decision, Justice Hampel has awarded damages to a plaintiff on the basis of breach of confidence and the tort of invasion of privacy.

Breach of confidence

Justice Hampel found that the publication of Ms Doe's personal information constituted a breach of confidence by the ABC. The doctrine of breach of confidence has received increasing attention in UK courts in recent times. It has been used by plaintiffs in a number of cases in the UK where a tabloid has published personal information about a celebrity where the information published was of a type which would be reasonably regarded as confidential. Until Doe v ABC, breach of confidence has not been found to be a cause of action available to those seeking compensation for an invasion of privacy in Australia.

The traditional common law doctrine of breach of confidence requires:

  • that a confidential relationship existed between the parties;
  • that the information is of a confidential nature;
  • that there had been an unauthorised use of the information by the defendant to the detriment of the plaintiff; and
  • the plaintiff suffered injury and as a result was entitled to damages.

In a series of decisions over the last five years, UK courts decided that the doctrine was ripe for change. These decisions discarded the need for a pre-existing relationship of trust and confidence, stating that an obligation of confidence arises "whenever a person receives information who knows or ought to know is fairly and reasonably to be regarded as confidential" (Campbell v MGM Ltd [2004] 2 AC 457). This change, said the courts, reflects the need to protect human autonomy and dignity - "the right to control the dissemination of information about one's private life" (Campbell). This expansion of the concept of breach of confidence beyond pre-existing relationships of confidentiality such as employment and trade secret situations and has allowed UK courts to apply the doctrine to one-off situations of publications of personal information.

Justice Hampel followed the UK authorities and Gleeson CJ's comments in Lenah Game Meats and concluded that:

"... it is no longer necessary for there to be a relationship of trust and confidence in order to protect confidential information. The obligation of confidence extends to a wider range of people, and is defined by the reference to the circumstances, not a relationship." [110]

In the present case, Justice Hampel found three factors which imported an obligation of confidence into the circumstances surrounding the relevant publications:

  • the nature of the information;
  • the circumstances whereby ABC became aware of the information; and
  • the effect of section 4(1A) of the Judicial Proceedings Reports Act.

Justice Hampel found that the information regarding the sexual assault was clearly private information. ABC only became aware of this information from the remarks of the judge during YZ's sentencing. The effect of section 4(1A) of the Judicial Proceedings Reports Act was again to give the information a private character. Justice Hampel found that each factor alone created an obligation of confidence but the three in combination created "powerful circumstances importing an obligation of confidence" [128]. Ms Doe therefore had a reasonable expectation of privacy in relation to this information. Justice Hampel found that in the circumstances Ms Doe's conduct in revealing the relevant information to a number of people close to her was not inconsistent with this expectation of confidentiality. The publication by ABC was therefore in breach of the obligation of confidence which it owed to Ms Doe.

Invasion of privacy

Justice Hampel also found that the publication of Ms Doe's personal information constituted a tortious action of invasion of privacy by the ABC. She reviewed the UK cases and noted that the UK had rejected the development of such a cause of action (see Wainwright v Home Office [2003] 3 WAR 1139), instead protecting privacy by the expansion of the doctrine of breach of confidence. After examining the comments made about a tort of the invasion of privacy in Lenah Game Meats and the subsequent Australian cases of Grosse v Purvis and Giller v Procopets, Justice Hampel took a different approach to the UK courts. She took what she describes as the:

"bold step ... to respond, although cautiously, to the invitation held out by the High Court ... to award damages for the tortious action of invasion of privacy."

Justice Hampel decided to take a similar approach to that taken in Grosse v Purvis. Justice Hampel declined to state what the limits of the doctrine were or define what defences would be available. She held, applying general tortious principles, that ABC's conduct constituted an actionable wrong because:

  • personal information had been published which was clearly of a private nature;
  • there was a prohibition on the publication of that information (section 4(1A) of the Judicial Proceedings Reports Act); and
  • there was no public interest in the publication of the information.

Importance of section 4(1A)

It is noteworthy that Justice Hampel justified both of these actions, in part, by virtue of the prohibition on publication contained in section 4(1A) of the Judicial Proceedings Reports Act. Justice Hampel repeatedly commented that the prohibition in section 4(1A) strengthened the private character of the information published and the expectation that the information should have been treated as confidential. By being able to uncontroversially characterise the published information as being of a private nature, Justice Hampel did not have to delve into a complex balancing act to determine whether publication was justifiable in a society which advocates free speech. This balancing act has a major role in media cases in both breach of confidence in the UK and invasion of privacy cases in the US.

Implications of the decision

There will be a host of interesting developments to come in this area. Two jurisdictions have now taken up the challenge laid down by the High Court in Lenah Game Meats. Damages for psychiatric injury have now been awarded in Queensland and Victoria resulting from invasion of a person's privacy. In Queensland the invasion of privacy was a physical invasion by an individual while in Victoria it was a publication of highly personal information by a corporation.

This case suggests that damages claims for actions constituting the invasion of privacy of individuals are here to stay. For officers in the public service it is important to be aware that this remedy is available to individuals in addition to the remedies available under relevant privacy legislation for breaches of privacy.

This case does, however, leave us with a host of unanswered questions about the scope of protection of private information that will be available in Australia at common law. We still do not know what "private" information is. We don't know what defences will be available and whether Australian courts will be sympathetic to arguments of freedom of speech. We also don't know whether the tort of invasion of privacy will continue to develop in tandem with an expanded doctrine of breach of confidence. We do know that this case provides a cautionary tale for all organisations and government agencies which publish personal information about individuals.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.