In the recent case of Wilson v Ferguson, the plaintiff claimed that her former partner had breached an equitable duty of confidence by posting sexually explicit photographs and videos of her on the internet.
The couple had sent each other explicit photographs over the course of their relationship. The defendant also took naked photographs of the plaintiff with her consent. On one occasion, the defendant accessed the plaintiff's phone without her permission and emailed himself videos of the plaintiff engaging in sexual activity.
Following the break-down of the relationship, the defendant posted 16 explicit photographs and two videos of the plaintiff on his Facebook page, along with offensive comments. The images were accessible to hundreds of the defendant's 'Facebook friends' - many of whom also knew the plaintiff - before they were removed several hours later.
The Supreme Court of Western Australia found that the defendant had breached an equitable duty of confidence owed to the plaintiff. The elements for succeeding in an action for breach of confidence are:
- the information in question was of a confidential nature (i.e., not widely known);
- the information was communicated or obtained in circumstances importing an obligation of confidence; and
- the information was used or disclosed without authorisation.
The Court found that where a person shares intimate photographs in the context of a relationship, it is ordinarily on the implied condition that the photographs are to be kept confidential. In this case, the plaintiff's expectation that the material be kept private was confirmed in her conversations with the defendant. The Court also found that by accessing sexually explicit videos from the plaintiff's phone without her knowledge, the defendant was placed under a duty to keep those videos confidential. The Court was satisfied that posting the material on Facebook was a clear misuse of the confidential information.
A new avenue of redress for victims?
While there are numerous criminal offences which involve breaches of privacy (such as stalking, the use of surveillance devices and the interception of telecommunications), the common law action for breach of privacy remains relatively undeveloped in Australia. As recently reported by the Australian Law Reform Commission, this means there are limited avenues of redress for persons who have suffered from serious intrusions on their privacy.
Plaintiffs have occasionally brought actions for breach of confidence, where the usual remedy is an injunction to prevent the publication, or further publication, of the confidential information. Equitable damages have traditionally been awarded for economic loss, but not for distress that falls short of a psychiatric injury. Accordingly, this cause of action has not been seen as useful for plaintiffs who suffer embarrassment, but no financial harm.
Importantly, in Wilson v Ferguson, the Court not only granted an injunction preventing the defendant from republishing the explicit images of the plaintiff, but also awarded equitable damages of $35,000 to the plaintiff as compensation for the distress caused by the dissemination of the images. The Court expressly relied upon the 2008 Victorian Court of Appeal decision of Giller v Procopets in determining that such damages were available. The defendant was ordered to pay a further $13,404 in equitable damages for economic loss, to cover the plaintiff's time off work following the incident.
As such, this case represents a potentially significant precedent on the award of equitable damages for emotional distress for the misuse of personal information. If the decision is followed, bringing a legal action for breach of confidence may become a far more attractive avenue of redress for people who have suffered from serious invasions of their privacy where there was an obligation of confidentiality.
A cautionary tale of the use of technology…
One of the Court's key reasons for expanding the award of equitable damages was the recognition that the law needs to keep pace with the use of technology on modern society. As Justice Mitchell remarked, it is not uncommon for people in relationships to use mobile phones to share intimate communications, and the internet is an easily accessible platform to disseminate those communications with the world. Although the explicit images in this case were removed from the defendant's Facebook page just hours after being posted, the damage had already been done. The award of almost $50,000 damages against the defendant comes as a timely reminder that comments and postings made online in the spur-of the-moment can have far-reaching 'real world' consequences.
For information on privacy law and related criminal offences, please contact:
Acting Managing Principal Solicitor