The Supreme Court of Western Australia has recently considered how an Australian court should respond to "the publication by a jilted ex-lover…of explicit images of a former partner" via social media (Wilson v Ferguson  WASC 15).
In finding for the plaintiff on her claim alleging breaches of confidence, the Court was required to consider how equity should respond to social and technological developments. Importantly, the Court made a monetary award in favour of the plaintiff to "compensate [her], so far as money can, for the humiliation, anxiety and distress which has resulted from the defendant's publication of the images".
The plaintiff and defendant worked together as fly in/fly out workers at a mine site in the North West of Western Australia. They had been in a sexual relationship.
During the course of their relationship, the plaintiff shared photos and videos of herself with the defendant in which she was either naked or partially naked and, in some cases, engaging in sexual activities.
The plaintiff alleged that the images provided to the defendant were "intended for the exclusive enjoyment and gratification of the defendant and the plaintiff for so long as their relationship lasted". More particularly, the plaintiff asserted that the circumstances of their relationship were such that the defendant owed her an equitable duty of confidentiality which prevented the defendant from disclosing the photos and videos to any other person.
As often occurs, the relationship between the plaintiff and the defendant came to an end over suspicions of infidelity. The plaintiff brought an end to the relationship while she was at work by way of text message.
Shortly thereafter, the defendant posted explicit photos and videos of the plaintiff on his Facebook page. In doing so, the defendant included a comment which stated "Happy to help all ya boys at home…enjoy!!". A subsequent comment by the defendant intimated that the posting of videos and photos was aimed at teaching the plaintiff a "lesson".
The plaintiff also received two text messages from the defendant. The first message was expressed in colourful terms and stated (amongst other things) that the defendant couldn’t wait to "watch [the plaintiff] … fold as a human being". The second message read "There's 2 vids so hopefully the lesson us learnt" [sic].
As a result of the defendant's actions, the photos and videos were available for viewing by 300 of the defendant's Facebook friends, many of whom worked with the plaintiff and the defendant. Within hours, the plaintiff began to receive calls about the images that had been posted.
Early in the evening on which the photos and videos were posted, the plaintiff sent a number of text messages to the defendant pleading for him to remove the photos and videos. They were subsequently removed that evening.
The Court accepted the plaintiff's evidence that she did, and continued to, feel humiliation and anxiety as a result of:
- the publication of the images;
- a belief that many of her work colleagues and friends would smirk at the thought of the photos; and
- concerns that the images may have been downloaded and forwarded to third parties.
The findings of the Court
The Court found that the defendant owed an equitable duty of confidence to the plaintiff which prevented the defendant disclosing the explicit images to third parties.
While it was clear that an injunction could be ordered to prevent the further publication of information in breach of an equitable obligation of confidence, the Court noted that a more difficult question was whether the Court could award compensation to a plaintiff for non-economic loss.
This was a particularly pertinent question in this case. While the plaintiff had lost some earnings as a result of an inability to work for a period of time, her primary complaint was the humiliation and distress caused by the publication of the relevant images.
The Court noted that there was only one analogous Australian decision which had considered whether compensation could be awarded for a breach of confidence: Giller v Procopets  VSCA 236, a decision of the Victorian Court of Appeal. In Giller, the Court had been prepared to make orders restraining the unlawful dissemination of private photos and video, albeit using much less advanced technological methods. The Court also found that equitable compensation could be awarded for non-economic loss arising from a breach of confidence.
While the Court was bound by the decision in Giller (it being the decision of an intermediate appellate court), it was noted that the decision in Giller was consistent with the development of the law in the UK.
The Court also stated that, in its view, recent technological and social developments should be taken into account in determining how the equitable doctrine of breach of confidence should be applied in particular cases.
The Court noted of the "pervasiveness" of the internet, social media and portable devices which enabled access to those platforms and the "not uncommon contemporary practice of couples privately engaging in intimate communications". Against that background, the Court concluded that the extension of the law which had occurred in Giller was both necessary and appropriate. Of particular importance were:
- the speed by which distress and harm could be caused by the dissemination of confidential information via the internet and social media; and
- the fact that, absent the ability to award equitable compensation for non-economic loss, any remedy may be (in effect) unenforceable.
Paying the price
The defendant paid a significant price for his conduct. Not only did he lose his job as a result of disciplinary action by his employer, the Court ordered the defendant to pay the sum of $48,404 to the plaintiff, made up of:
- $35,000 by way of equitable compensation for the damage suffered by the plaintiff in the form of significant embarrassment, anxiety and distress; and
- $13,404 for the plaintiff's economic loss, arising from her inability to work for a period of time.
The Court also ordered an injunction preventing the further publication of the images. Relevantly, the injunction sought by the plaintiff in this case was limited to the publication of the images posted on Facebook or images that were similar to thereto. However, partly as a result of concerns with respect to the enforcement of, and compliance with, such an order, the Court restrained the defendant from publishing any photos or videos of the plaintiff engaging in sexual activities or in which the plaintiff appeared naked or partially naked (including with breasts exposed).
The decision of the Court is significant as it confirms how courts of equity are prepared to be creative and flexible in responding to technological and social developments and in fashioning remedies.
With these types of judicial responses, there may be less impetus to recognise a tort of invasion of privacy as forming part of the Australian common law or for the legislature to create a statutory right to take action for breaches of privacy or confidentiality.
The case will also stand as a warning of the consequences that will be faced by individuals who seek to cause harm and distress to others by posting confidential information online.
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