- Damages are now available for pure mental distress for breach of confidence claims, where the essence of the claim is that there has been a misuse of private information. This could have important consequences for the media in Australia.
- In this case, the Victorian Court of Appeal chose to adapt the existing action of breach of confidence rather than recognise a novel action for breach of privacy.
Last week, it was reported that the Victorian Court of Appeal awarded damages for the distress caused by the unauthorised showing of a private sex tape. Today, we look at the decision in Giller v Procopets  VSCA 236, and its potential consequences, in more detail.
In Giller v Procopets, the Victorian Court of Appeal declined to decide whether a common law action for breach of privacy currently exists in Australia. However, it is the first Australian appellate decision to follow a line of English authority allowing damages for emotional distress for breach of confidence, in cases where that action is akin to a tort of “misuse of private information”. These cases have most commonly involved the tabloid media publishing surreptitiously obtained photographs of celebrities.
Accordingly, the decision is important for both its impact on the approach taken to developing privacy law in Australia, and its consequences for Australia’s media and others who have the power to disclose “private information”.
The parties and the relationship of confidence
Mr Procopets and Ms Giller were in a de facto relationship. After they ceased living together, they continued to have sex. Mr Procopets filmed a number of these sexual encounters on a hidden video camera. At first, Ms Giller was unaware of the filming but later she acquiesced in it. After the relationship deteriorated, Mr Procopets attempted to show the videos to several of Ms Giller’s family and friends. Although several refused to watch it, he did show the video to the mother of one of her friends. Further, he phoned her employer and said that he had a video of her engaging in sexual activity, in circumstances where (he said) it was unethical for her to do so.
Shortly thereafter, Mr Procopets was arrested and a restraining order (which included a restraint on the distribution of the videos) was taken out. However, six months later Mr Procopets showed the video to another woman he was in a relationship with and his bail was revoked.
Ms Giller sought damages for publication of the videos as part of a broader civil action (including a de facto property dispute and civil claims for assault). Ms Giller relied on three causes of action: breach of confidence; breach of privacy; and intentional infliction of mental harm. We deal only with the actions for breach of confidence and breach of privacy.
Breach of Confidence
The Court of Appeal overturned the trial judge’s decision that damages could not be awarded for “mere distress” not amounting to psychiatric injury. Justice Neave, with whom President Maxwell agreed, said that because “the Australian position [was] at large on this issue” the Court could, in line with one suggested approach in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, develop the action for breach of confidence by following the English decisions in Campbell v Mirror Group Newspapers Ltd  2 AC 457, Douglas v Hello! Ltd  QB 125, and Cornelius v De Taranto  EMLR 12. While acknowledging these decisions were based in part on the right to privacy in Article 8 of the European Convention and the Human Rights Act 1998 (UK), Justice Neave thought that to find damages were not available, “in circumstances where no other substantial remedy is available, would … illustrate something was wrong with the law”. Accordingly, she held that damages for distress should be available “where the essence of the plaintiff’s case is that he or she has been embarrassed by the exposure of private information.”
Justice Ashley agreed, citing amongst his reasons the lack of any conflicting authority, the anomalous situation of an injunction being obtainable where damages were not, and the fact that similar damages would be recoverable in an action for defamation.
Justice Neave and President Maxwell awarded damages of $40,000, including $10,000 in “aggravated damages” because Mr Procopets had acted with the “deliberate purpose of humiliating, embarrassing and distressing Ms Giller”. However, Justice Ashley would have awarded no more than $27,500, including $7,500 for aggravation. None of the judges awarded exemplary damages, citing both the decision in Harris v Digital Pulse (2003) 56 NSWLR 298 and the fact that Mr Procopets had already been punished by the criminal law, as a bar to doing so.
Breach of privacy
At first instance, the trial judge had held that the common law had “not developed to the point where the law in Australia recognises an action for breach of privacy” ( VSC 113 per Justice Gillard). Just as the High Court did in ABC v Lenah Game Meats Pty Ltd, the Court of Appeal sidestepped the issue, stating that it was unnecessary for it to decide this point in light of its findings in relation to the action for breach of confidence. In doing so, Justice Ashley commented that “the development of such a tort would require resolution of substantial definitional problems… which might contraindicate such a development”. Justice Neave simply commented on the divergent approaches which had been adopted in England and New Zealand, the two Australian first instance decisions which have recognised an action for breach of privacy, Grosse v Purvis  Aust Tort Reports ¶ 81-706 and Doe v ABC  VCC 281, and the recommendation of the Australian Law Reform Commission to develop a statutory cause of action.
The significance of the decision
In a legal sense, the decision is important because it is the first time an Australian appellate court has accepted the High Court’s invitation to adapt a recognised form of action to “identify and protect interests of a kind which fall within the concept of privacy”1 Whether the courts continue with this approach, or whether either a senior level court or the legislature bites the proverbial bullet and develops an action for breach of privacy remains to be seen.
The key aspect of the decision was the willingness of the Court to award damages for emotional distress, falling short of a recognised psychiatric injury. In a practical sense, this is important because it removes a major obstacle to individuals suing for this type of breach of confidence; after all, distress, hurt and embarrassment are likely to be the most common human reactions to the misuse of private information. This is particularly important for Australia’s tabloid media, who now risk damages awards for the distress caused by publishing long-lens photographs, footage from hidden cameras or other “private information”. This is in addition to the potential damages they had previously faced for trespass or defamation, albeit using these causes of action had some considerable difficulties. This decision represents an important swing back of the legal pendulum, from freedom of the press to an individual’s right to privacy, following several years of increased reporting powers (eg. the removal in some jurisdictions of the need to show publication was in the public interest for a truth defence in defamation).
Although the decision removes the major legal obstacle to the use of breach of confidence as a de facto tort of misuse of private information, it should be noted that there are still a number of practical obstacles to its widespread use in Australia, particularly where the media is concerned.
One barrier is likely to be the relative cost of bringing such a claim, compared to the potential damages; particularly given that it appears that exemplary damages will not be available.
A second potential barrier might be the need for an initial confidential relationship. In reality, it is unclear whether an initial confidential relationship is still required to found the action for breach of confidence in Australia, or whether we have already taken, or will in the future go down, the English path of imposing “a ‘duty of confidence’ whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential” (Campbell v MGN  2 AC 457). If an initial confidential relationship is still required, this will often act as a practical barrier to claims made against the media, who will rarely be in such a relationship with the subject/owner of the information (although sometimes they may have received the information from someone who was). If an initial confidential relationship is not required, as Justice Hampel found in the Victorian County Court case of Doe v ABC, then the implications of this case for the media could be significant.
Finally, if the Australian courts do continue to develop breach of confidence to deal with the misuse of private information, in cases where it is applied to the media it is likely they will try to balance the often competing rights of privacy and freedom of the press. In England (and other jurisdictions such as New Zealand and the USA), this has resulted in allowing the publication of otherwise private information, if it is of legitimate public interest (eg. the publication of details of an affair of a politician who had run for office on a platform of family values).
1 Such an approach was advocated by Justices Gummow and Hayne, and Chief Justice Gleeson, in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. The previous two Australian decisions on the issue were at a county/district level: See Doe v ABC  VCC 281 and Grosse v Purvis  Aust Tort Reports 81-706.
2 For a discussion of this issue, see Peter Keel & Norm Lucas, ‘Managing Reputation – An Industry’ in The Sydney Papers¸ 20(1), Summer 2008, 13.
3 In Grosse v Purvis $30,000 was awarded for wounded feelings following stalking and harassment. In Doe v ABC, $25,000 was awarded for distress, after details of a rape victim’s identity were published by the ABC.
4 Because this case clearly involved a confidential relationship (ie. a private sexual relationship), the Court was not required to analyse whether an initial confidential relationship is still a necessary element for a breach of confidence in Australia. The English position was noted in footnote 391 of Justice Neave’s judgment.
5 Such a requirement was removed in England in AG v Guardian Newspapers Ltd (No 2)  1 AC 109.
6 Justice Hampel relied, at least in part, on the comments of Chief Justice Gleeson in ABC v Lenah Game Meats to support her view.