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10 Dec 2008

Victorian case a next step in protection of private information

Today, in an important decision, the Victorian Court of Appeal held that a plaintiff could be compensated for the distress caused by the unauthorised showing of a private sex tape.

The decision in Giller v Procopets [2008] VSCA 236 to award damages for distress, in relation to a claim of breach of confidence, has removed one important barrier to using this cause of action to protect against the misuse of private information. It's important to note, however, that the Court did not create a freestanding tort of invasion of privacy, and that there are still barriers to the widespread use of breach of confidence in this manner in Australia.

The sex tape, breach of confidence and privacy

Mr Procopets videoed himself and his former de facto partner, Ms Giller, having sex; at first secretly, but later with her consent. When their sexual relationship finally ended, Mr Procopets showed the videotapes to Ms Giller's family, friends and employer.

Ms Giller sought damages in the Victorian Supreme Court, alleging breach of privacy and/or breach of confidence and/or intentional infliction of mental harm.

In recent years, English courts have expanded the action of breach of confidence in a manner which has allowed public figures to use it to hold the media liable for unwanted reporting of their private lives. Used in these circumstances, it is now akin to a tort of misuse of private information.

At trial, Justice Gillard found the law did not recognise an action for breach of privacy. Further, although the elements of breach of confidence and intentional infliction of mental harm were made out, compensation and/or damages (including exemplary damages) were not allowed for distress-type injuries.

Ms Giller appealed.

After an extensive review of Australian and international developments, the Victorian Court of Appeal held that there was no reason that Ms Giller should not be able to recover damages for the distress caused by this type of breach of confidence and awarded her $40,000 in damages.

As the High Court did in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, the Victorian Court of Appeal side-stepped the question of whether Australian law should recognise a tort of privacy, stating that it was unnecessary for it to decide this issue in light of its findings in relation to the action for breach of confidence.

The effect of the case

Breach of confidence would be of little practical use in cases involving a misuse of private information unless compensation is recoverable for distress-type injuries; after all, distress, hurt, humiliation, embarrassment and anger are likely to be the most common human reactions to any misuse of private information.

Accordingly, this decision is an important development in the Australian law relating to informational privacy. There are, however, still a number of practical and legal barriers to using (as occurs in England) breach of confidence as a widespread de facto tort of misuse of private information, particularly against the press. These obstacles include the amount of the damages available for distress-type injuries (including the current unavailability of exemplary damages in Australia), the existing requirement of an "obligation of confidence" or "confidential relationship" for breach of confidence in Australia (the press will rarely be in a confidential relationship with the owner/subject of the private information), and the likely limits that freedom of the press and/or the public interest will have on the emerging form of this cause of action.

It is unclear whether these limits will prevent the widespread use of breach of confidence as a response to the misuse of private information, or whether informational privacy will be dealt with by developing a new statutory cause of action for breach of privacy as recommended by the Australian Law Reform Commission, or by developing a common law action for breach of privacy as in New Zealand, or not at all. The only thing that is certain is that we haven't heard the last word on the legal protection of private information in Australia.

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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.