05 Mar 2015

Is invasion of privacy actionable? The rise of breach of confidence

by Caroline Bush, Amanda Graham

Breach of confidence is a remedy individuals can use to protect their personal information and recover substantial compensation.

Although there is some legislative protection for Australians' personal information, it doesn't extend to every instance of what might be considered as an invasion of privacy. Courts in the United Kingdom have found that the cause of action of breach of confidence may provide a remedy for people who are seeking to protect their privacy in the absence of a statutory cause of action – and Australian courts are beginning to follow them, as the recent Western Australian decision of Wilson v Ferguson [2015] WASC 15 highlights.

Existing privacy remedies

Under the Privacy Act, a person can make complaints to the Privacy Commissioner for interferences with their privacy by entities regulated by the Act (ie. government agencies and organisations with an annual income of greater than $3m). If the Privacy Commissioner determines that an interference has occurred he may determine that the complainant is entitled to compensation for loss or damage suffered, including for economic and non-economic loss. The Commissioner's preparedness to do so has generally resulted in moderate determinations for compensation.

To close this gap in privacy remedies, the Australian Law Reform Commission has twice recommended that the Commonwealth create a statutory right to sue for serious invasions of privacy, which may provide a remedy to individuals who suffer interferences not regulated by the Privacy Act, but so far no government has indicated it would do so.

Separately, there have been some developments of a common law tort since such an avenue was left open in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, including by the District Court of Queensland in Grosse v Purvis [2003] QDC 151 and by the Victorian County Court in Doe v Australian Broadcasting Corporation [2007] VCC 281. However, the existence of the tort has not otherwise been confirmed by any higher courts.

Equitable actions filling the void

The English Courts have expanded the action of breach of confidence to address interferences with personal privacy in cases involving celebrities such as Naomi Campbell and Max Mosley. The Australian development of such an action was first recognised by the Victorian Court of Appeal in Giller v Procopets [2008] VSCA 236, but has since received little attention. However, the recent Western Australian Supreme Court decision of Wilson v Ferguson, (handed down in January) may provide a new impetus for this action to be used to redress what might be described as an interference in privacy in the absence of a fully developed privacy remedy.

Wilson and Ferguson were both employees of Cloudbreak Mine and in an intimate relationship. During the course of their relationship Wilson and Ferguson shared sexually explicit photos and videos of each other. On one occasion Ferguson also surreptitiously accessed Wilson's phone to obtain photos and videos which she had not voluntarily shared with Ferguson. When Wilson learned that Ferguson had accessed her phone for this purpose, she requested that he ensure that the photos and videos remain private (this request was reiterated by text message).

The relationship subsequently soured and Ferguson took the opportunity to post the photos and videos of Wilson on his Facebook page, which was accessible by some 300 Facebook friends including mutual work colleagues of the parties.

Wilson brought an action against Ferguson on the basis of a breach of confidence. She alleged that the posting of the images to Ferguson's Facebook page humiliated and distressed her, which led to her need to see a counsellor and being unable to sleep. She also made a claim for loss of wages on the basis that she was unable to work for a period of approximately two and a half months from the anxiety and embarrassment she suffered as a result of her work colleagues having viewed the images.  

The Court extrapolated the following elements of the action and found they were satisfied:

  • that the information was of a confidential nature, which was clear from the nature of the images;
  • that it was communicated or obtained in circumstances importing an obligation of confidence, and some of the images where obtained by Ferguson without Wilson's consent; and
  • that there was an unauthorised use of the information, namely posting the images on Facebook so that it was viewable by hundreds of people, including Wilson's work colleagues.

As a result, the Court found that Ferguson had breached his equitable obligation of confidentiality owed to Wilson. When considering remedies, it found that both injunctive relief and equitable compensation to Wilson for a breach of an equitable obligation of confidence were available, and awarded $35,000 for pain and suffering, and $13,404 for lost wages.

Where to now for breach of confidence in privacy claims?

This case is an affirmation of the Giller decision which extended the use of the cause of action for breach of confidence to provide for monetary compensation for misuses of personal information.

It is a further significant development in relation to the remedies which may be utilised by individuals to protect their personal information and shows that an invasion of privacy is actionable, and that in the right circumstances substantial compensation can be recovered by a plaintiff.

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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.