Privacy Law and Policy Reporter
Giller v Procopets  VSC 113
Supreme Court of Victoria – Gillard J (7 April 2004) Privacy – Distribution or showing of video of intimate sexual encounters – Recovery of damages in breach of confidence for unauthorised disclosure of private matter – Recovery of damages for intentional infliction of purely mental distress – Action for breach of privacy.
The plaintiff and the defendant had been in a de facto relationship. The defendant evicted the plaintiff from the home they had been sharing. The plaintiff subsequently obtained an intervention order against the defendant, but the parties continued to have sexual relations. The defendant videoed a series of sexual encounters between himself and the plaintiff. Some of the encounters were videoed surreptitiously, while others were videoed with the plaintiff’s consent. Following altercations between the parties the defendant threatened to show the video, and photographs taken from the video, to various people, including the plaintiff’s employer. The defendant showed the video to some people, left a copy of the video with the plaintiff’s father and contacted the plaintiff’s employer. The plaintiff brought a number of actions against the defendant.
This casenote deals only with the claims concerning the videoing of the sexual encounters between the parties and the exhibition and/or distribution of the video to third parties. In relation to these events, the plaintiff sought compensatory, aggravated and exemplary damages, pleading three separate causes of action: breach of confidence; intentional infliction of emotional distress; and invasion of privacy.
Gillard J held that the plaintiff was not entitled to recover damages in relation to the distribution of the video under any of the three causes of action pleaded.
1. Breach of Confidence
Gillard J applied a conventional analysis of the action for breach of confidence to conclude that revelation of the details of the sexual encounters, in the form of showing or distributing the video, amounted to a breach of confidence. First, although the fact that the parties engaged in sexual relations was notorious, what the parties did in the course of their sexual activities was a ‘private matter’, and therefore confidential. Secondly, while the parties were not in a de facto relationship at the time of the sexual encounters, persons engaged in sexual activity in the privacy of their own home are in a confidential relationship in relation to the activity. Thirdly, showing the video without the consent of one of the parties amounted to an unauthorised disclosure. The Court therefore did not need to address complexities concerning the elements of the cause of action associated with extension or modification of the action to apply specifically to the public disclosure of private facts, as raised by Gleeson CJ in ABC v Lenah Game Meats and as accepted by the English courts.
Although there was a breach of confidence, Gillard J held that neither damages nor equitable compensation were recoverable for the breach, holding that common law damages are not available in relation to an equitable cause of action, and rejecting an argument that, to the extent that the action for breach of confidence is slowly being adapted to protect privacy, damages (or, more accurately, equitable compensation) should be recoverable for mental distress.
He held that the law does not recognise equitable compensation for mental distress in an action for breach of confidence, and that there is no entitlement in equity to exemplary damages.
These conclusions turned, in part, on complexities relating to the jurisdictional basis for awarding damages in breach of confidence actions, as discussed below.
2. Intentional infliction of mental harm
Gillard J set out the conventional elements of the action in Wilkinson v Downton as follows:
the defendant must wilfully do an act or make a threat in relation to the plaintiff; the act must be calculated to cause harm to the plaintiff; and as a result of the act, the plaintiff must suffer physical or mental injury.
He held that the action does not provide a remedy for distress falling short of actual mental injury or psychiatric harm. referring to the decision of the House of Lords in Wainwright v Home Office, that the action does not provide a remedy for mere distress. He rejected the plaintiff’s claim.
3. Breach of privacy
Gillard J rejected the claim of invasion of privacy because there is, at present, no cause of action for breach of privacy under Australian law, referring to the English decisions in Kaye v Robertson, and Wainwright .
The decision of Gillard J is significant mainly for the way in which it raises issues concerning the recovery of damages for distress in general law causes of action involving allegations of breach of privacy. A plaintiff that alleges a breach of privacy will, regardless of the cause of action pleaded, seek a remedy that reflects the harm incurred. The harm will commonly be distress or embarassment, meaning something less than mental shock or an established form of psychiatric harm. This case deals with the extent to which, in the absence of a privacy tort, damages are recoverable for distress in the two established actions of breach of confidence and intentional infliction of emotional distress. Some difficult legal issues arise in relation to each cause of action. The position in relation to the actions for breach of confidence and intentional infliction of mental harm should be compared with the recovery of damages for distress under a privacy tort.
1. Breach of confidence
Apart from contractual obligations, under Australian law, obligations of confidentiality are recognised and enforced in the exclusive jurisdiction of equity. Damages were historically not available as of right in equity’s exclusive jurisdiction. In 1858, Lord Cairns’ Act was introduced to provide the equity court with express power to award damages in cases where it had jurisdiction to award an injunction or specific performance. There has been considerable controversy concerning the application of Lord Cairns’ Act to exclusively equitable causes of action.
It would seem that Lord Cairns’ Act was enacted to clarify that, where the equity court had jurisdiction to award an injunction or specific performance, it could award damages in aid of a legal right. In Victoria, the equivalent of Lord Cairns’ Act is now section 38 of the Supreme Court Act 1986 (Vic). The current Victorian provision differs from corresponding provisions in other States, and the previous Victorian provision, in that it does not refer to injunctions in breach of ‘wrongs’ or ‘wrongful acts’. It is possible that the reference to ‘wrongs’ or ‘wrongful acts’ can be interpreted to extend to breaches of equitable obligations. In Victoria, however, the wording of section 38 suggests that it is clearer than in the other States that the provision applies only to allow equity to award damages in its auxiliary jurisdiction aid of legal rights, thus leaving unaffected equity’s inherent jurisdiction to award equitable compensation.
In Talbot v General TV Corp Pty Ltd, however, Harris J held that the previous Victorian equivalent of Lord Cairns’ Act was the source of the Court’s jurisdiction to award damages for breach of confidence. Moreover, a considerable number of English and Commonwealth cases have relied on Lord Cairns’ Act to award damages in breach of confidence cases. The contrary view, championed in Meagher, Gummow and Lehane’s Equity Doctrines and Remedies, is that, as the equity court has an inherent jurisdiction to award equitable compensation, there is no need to rely on Lord Cairns’ Act as the source of the jurisfiction to award damages for breach of purely equitable rights. This controversy remains unresolved.
In the instant case, Gillard J referred to the controversy over the application of Lord Cairns’ Act, but did not feel compelled to offer a view as to the source of the court’s power to award damages. Instead, His Honour denied damages (or equitable compensation) for two reasons. First, His Honour maintained that Lord Cairns’ Act could not apply as the plaintiff had not claimed an injunction. Secondly, His Honour held that equitable compensation is not available for mere distress or humiliation. There are problems with both conclusions.
On the first issue, the application of Lord Cairns’ Act depends upon whether the court has jurisdiction to award an injunction, not on whether or not an injunction is claimed. There are difficulties in determining precisely when a court will have jurisdiction to award an injunction but, in general terms, Lord Cairns’ Act will apply where an injunction would be awarded were it not for a discretionary defence. There is nothing in the facts of the case to suggest that the plaintiff could not have been awarded an injunction to prevent further dissemination of the video, leaving aside the question of ‘unclean hands’. As the plaintiff had a history of deceptive conduct, including deception in relation to obtaining the intervention order against the defendant, the defence of ‘unclean hands’ may have been relevant. In any event, the alternative view - that Lord Cairns’ Act has no application to purely equitable causes of action – may well be preferable.
On the second issue, Gillard J held that the law does not at this stage recognise damages (or equitable compensation) for ‘distress type injuries’ resulting from a breach of confidence. This conclusion was, however, reached without any consideration of the principles applicable to the award of equitable compensation. In this respect, it may be important to appreciate that the principles that apply to the award of equitable compensation differ from the principles applicable to common law damages. The equitable remedy is restitutionary, in the sense that it is intended to restore the plaintiff to the position he or she would have been in if the equitable duty had not been breached. Furthermore, the equitable remedy may not be limited by common law notions such as remoteness of damage, foreseeability or causation. Therefore, merely because damages are not available for distress in common law actions, such as trespass or negligence, should not necessarily mean that equitable compensation is similarly constrained.
In truth, the availability of damages for distress, or injury to feeling, in actions for breach of confidence is completely unresolved. It is therefore unclear whether actions for breach of confidence should be regarded, in the same light as actions for defamation, as exceptions to the general rule that damages are not ordinarily recoverable for distress or injury to feelings. Recent English decisions in breach of confidence cases, however, have found no difficulty whatsoever in awarding damages for distress. In Douglas v Hello!, for example, Lindsay J awarded Mr and Mrs Douglas an amount each for distress occasioned by the unauthorised publication of wedding photographs. At the same time, it must be borne in mind that the English decisions involve claims under the Data Protection Act 1998 (UK) in addition to breach of confidence, and that section 13(2) of that Act specifically provides for recovery of compensation for distress.
To refuse damages for distress would be to seriously undermine the utility of the action for breach of confidence in providing a remedy for the publication of private facts, the path followed by the English courts. As Toulson and Phipps point out:
... in a case where a duty of confidentiality exists to protect personal privacy, its object is to protect the feelings of the confider, and therefore it would be in accordance with principle to allow damages for injury to feelings caused by breach of that duty.
It is to be regretted that Gillard J did not explore this issue in greater depth.
His Honour would, however, seem to be on firmer ground in holding that exemplary damages are not available, under current Australian law, for an equitable cause of action. This does not, however, appear to be the position under English and New Zealand law. For example, in Douglas v Hello! Lindsay J concluded that exemplary damages (or equity’s equivalent) are available in breach of confidence actions.
As general matter, in comparing the availability of damages under Australian law, as opposed to the position in the United Kingdom and in New Zealand, it should noted that the English and New Zealand courts do not appear to be as concerned with avoiding the fusion of legal and equitable principles as the Australian courts appear to be.
2. Intentional Infliction of mental harm
In Wainwright, Lord Hoffman explained that the action in Wilkinson v Downton arose in the context of the decision of the Privy Council in Victorian Railway Cmrs v Coultas that damages for nervous shock were too remote to recover in negligence. As a result of the constraints imposed by this rule, the courts recognised an action where there was an imputed intention to cause mental harm and, as a result of the acts of the defendant, the plaintiff suffered psychiatric harm. The English courts, however, later rejected the rule that prevented recovery for nervous shock in negligence actions. This obviously left little continuing scope for the action in Wilkinson v Downton.
As Lord Hoffman explained, the only way the action in Wilkinson v Downton could have continuing vitality would be if damages were recoverable for distress falling short of psychiatric harm. This contention was rejected by the English Court of Appeal in Wong v Parkside Health NHS Trust. As His Lordship further explained in Wainwright, this left Wilkinson v Downton ‘with no leading role in the modern law’.
In Wainwright, Lord Hoffman went on to consider whether a common law action would arise where there was an actual intention (as opposed to an imputed intention) to cause distress that was less than psychiatric harm. It is important to understand that this would amount to recognition of a new intentional tort of harassment, upon analogy with criminal anti-stalking laws, and not a version of the action in Wilkinson v Downton. Furthermore, recognition of a tort of harassment would be of limited significance in the United Kingdom, as a civil remedy is available under the Protection from Harassment Act 1997 (UK). Nevertheless, the House of Lords in Wainwright did not rule out recognition of an intentional tort of harassment.
The plaintiff here did not argue for the recognition of a tort of harassment under Australian law. Nevertheless, Gillard J acknowledged that, if the plaintiff could establish that the defendant set out to cause mental distress, and that the plaintiff suffered mental distress as a result, there was an argument that the law should permit compensatory damages. His Honour did not, however, specifically refer to the action as a tort of harassment. Moreover, referring to concerns expressed by the House of Lords in Wainwright, he cautioned that allowing recovery for mere distress could well result in a flood of litigation. In the absence of authority supporting a new cause of action, His Honour was bound to reject the claim made for damages for the mental distress suffered by the plaintiff, whether based on a version of Wilkinson v Downton or a tort of harassment. In an appropriate case, however, it remains open for a plaintiff subject to a course of harassing behaviour to make a case for recognition of either a tort of harassment or a privacy tort of intrusion onto seclusion. As, in this case, the plaintiff was concerned with the disclosure of private matter, and not with intrusive behaviour, this was not the sort of case in which these sorts of arguments could be effectively made.
Breach of Privacy
In contrast to the decision of Skoein DCJ in Grosse v Purvis, His Honour’s comments are a correct statement of current Australian law. He did, however, point out that there was a ‘degree of encouragement’ for the development of a cause of action in privacy in the joint judgment of Gummow and Hayne JJ in ABC v Lenah Game Meats. While this interpretation of the joint judgment is generally accurate, the statements of Gummow and Hayne JJ on a privacy tort are perhaps better characterised as cautious, rather than encouraging.
In Hosking v Runting the New Zealand Court of Appeal recognised a privacy tort, being a tort of public disclosure of private facts. In the instant case, Gillard J stated that neither English nor Australian law have recognised a cause of action based upon breach of privacy. In doing so, His Honour referred to the decision of the House of Lords in Wainwright. The Wainwright decision is, however, more properly seen as deciding against recognition of a tort of intrusion onto seclusion under English law. It says little about recognition of a tort of public disclosure of private information. Subsequently, in Campbell v MGN, the House of Lords clearly preferred to develop the action for breach of confidence to protect against dislosure of private information over recognition of a new tort. As this casenote has illustrated, however, there are considerable uncertainties under Australian law regarding the award of damages in breach of confidence cases for distress or injury to feelings. These uncertainties would not exist in relation to a tort specifically tailored to deal with offensive disclosures of private information which, like defamation, would provide a remedy for injured feelings. Unless some fundamental uncertainties under Australian regarding the application of the action for breach of confidence to the protection of private facts are resolved, its usefulness as a privacy remedy may be doubted. l
 Referring to Argyll v Argyll  Ch 302 and Stephens v Avery  Ch 449.
 Gillard J characterised the obligation of confidence as ‘a relationship of mutual trust and confidence which is to be shared between the persons but is not to be divulged to others without the consent of both parties’:  VSC 113, para .
 (2001) 208 CLR 199.
 The decision of the House of Lords in Campbell v MGN Ltd  UKHL 22 (6 May 2004) appeared after the instant case.
  2 QB 57.
  UKHL 53.
  FSR 62.
 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2)  HCA 73; (1984) 156 CLR 414, 438 per Deane J.
 See, for example, Nocton v Lord Ashburton  AC 932.
 See Meagher, Heydon and Leeming , Meagher Gummow and Lehane’s Equity Doctrines and Remedies (4th ed, 2002) paras [23-035], [23-105] (hereafter ‘MGL’).
  VicRp 26;  VR 224.
 See, for example, Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) RPC 203; Seager v Copydex (No 2)  RPC 250; Malone v Metropolitan Police Commissioner  1 Ch 344; Aquaculture Corp v New Zealand Green Mussel Co Ltd  3 NZLR 299; Attorney-General v Guardian Newspapers (No 2)  1 AC 109.
 MGL, para [23-040].
 See, for example, Re Dawson (dec’d) (1966) 84 WN (Pt 1) (NSW) 399.
  EWHC 2629 (7 November 2003) para .
 See, for example, the award of damages for distress, including aggravated damages, by Morland J in Campbell v MGN  EWHC 499 (27 March 2002), affirmed by the majority of the House of Lords in Campbell v MGN  UKHL 22 (6 May 2004).
 Toulson & Phipps, Confidentiality ((1996) para [10-13].
 See, for example, Harris v Digital Pulse Pty Ltd  NSWCA 10; (2003) 44 ACSR 390; MGL para [23-020].
  EWHC 786 at para . For the New Zealand position see Aquaculture Corporation v New Zealand Green Mussel Co Ltd  3 NZLR 299.
 (1888) 13 App Cas 222.
 For the Australian cases rejecting Coultas see Luntz and Hambly, Torts: Cases and Commentary (5th ed, 2002) paras [7.11.1] – [7.11.13].
  EWCA Civ 1721.
  UKHL 53 para .
 An intentional tort of harassment was recognised in Singapore in Malcomson v Naresh Kumar Metha  4 SLR 454.
  QDC 151 (16 June 2003).
 (2001) 208 CLR 199.
  NZCA 34 (25 March 2004).
  UKHL 22 (6 May 2004).