Australia: Damages awarded for revenge porn - privacy or confidential information?

Last Updated: 2 February 2015
Article by Tom Darbyshire

"Sexting" and "Revenge Porn" are two terms which have entered the modern lexicon in recent years. "Sexting" involves electronically sending explicit images; usually (but not always) of oneself; usually (but not always) by mobile phone or smartphone; and usually (but not always) to an intimate acquaintance.

Sexting can result in "revenge porn" if a relationship ends acrimoniously and one party decides to publish the images in order to cause distress and embarrassment to their former partner.

These two phenomena were at the centre of a case decided in the Supreme Court of Western Australia earlier this month. The case represents a small step in the evolution of Australian law as it attempts to deal with issues of privacy and confidentiality in the Facebook age.

The plaintiff, Caroline Wilson and the defendant, Neil Ferguson, both worked as fly in fly out workers at the Cloudbreak mine site. They started dating in November 2012 and shortly afterwards began living together at the defendant's house during the times they were in Perth.

During the course of the relationship each of them took explicit photographs of themselves and sent them to the other using their mobile phones. The plaintiff also took explicit videos of herself for the purpose of showing them to the defendant.

However, when their relationship ended in August 2013, the defendant took it upon himself to post 16 explicit photographs of the plaintiff and 2 of the videos on his Facebook page. He had approximately 300 Facebook friends, of which many were his, and the plaintiff's, co-workers at Cloudbreak. The plaintiff was, understandably, horrified that this had occurred. She experienced considerable distress as a result of the posting and could not return to work at Cloudbreak until October. The defendant was sacked a week after posting the images.

In late 2013 the plaintiff commenced proceedings in the Supreme Court of Western Australia, seeking an injunction restraining the defendant from further publication of the photographs and videos and damages for the publication that had occurred.

The defendant filed a defence, simply stating that he did not admit the plaintiff's allegations. When the matter came on for trial in December 2014 the defendant did not appear.

The plaintiff's case largely rested on well-established legal principles. She claimed that the photographs and videos constitute information of a confidential nature, communicated or obtained in circumstances which create an obligation to keep them confidential, and that there was unauthorised use of the information.

The Judge had no difficulty in finding that the plaintiff had established these things and was entitled to an injunction preventing the further publication of explicit images of the plaintiff. The Judge was able to rely on cases going back to the birth of photography in the 19th century about photographs and images being created in circumstances which gave rise to obligations of confidentiality.

The plaintiff's claim for damages presented more significant legal hurdles. The plaintiff was seeking equitable compensation for the breach of an equitable obligation of confidence, but the bulk of her claim was for emotional distress, not actual economic loss. Traditionally, with a few narrow exceptions, it has been very difficult to obtain damages in Australia simply for embarrassment and emotional distress.

However, the Judge was prepared to find that the Court could award such damages in this case. To some extent he relied on an earlier decision of the Victorian Court of Appeal, Giller v Procopets, which concerned revenge porn using an old fashioned video tape. The Judge found that allowing monetary compensation in cases such as this "is an appropriate incremental adaptation of an established equitable principle to accommodate the nature, ease and extent of electronic communications in contemporary Australian society".

As a result, the plaintiff was awarded $35,000 for the significant embarrassment, anxiety and distress she suffered as a result of the dissemination of intimate images among her workmates and social group. The award took into account that the disclosure was an act of retribution by the defendant, intended to cause the plaintiff harm; but it also took into account that the plaintiff's distress did not amount to a psychiatric injury. In addition to this the plaintiff was awarded $13,404 for economic loss, being the wages she lost during her time off work.

In Australia, an individual cannot sue for an invasion of privacy, as such. Australia's Privacy Act regulates the use of personal information by Governments and organisations, rather than private individuals, and is enforced by complaints to the Office of the Australian Information Commissioner, and so was of no assistance to the plaintiff in this case. In the absence of a right to sue for invasion of privacy, the plaintiff had to rely on laws relating to the protection of confidential information.

A personal right to sue for a breach of privacy is an idea that has been debated at some length in Australia, and it is an idea whose time may yet come. In the meantime, however, the Courts apply the remedies they have at their disposal as best they can to the bewildering changes in technology and social norms which we are seeing in the second decade of the 21st century.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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