Today, in an important decision, the Victorian Court of Appeal
held that a plaintiff could be compensated for the distress caused
by the unauthorised showing of a private sex tape.
The decision in Giller v Procopets  VSCA 236 to
award damages for distress, in relation to a claim of breach of
confidence, has removed one important barrier to using this cause
of action to protect against the misuse of private information.
It's important to note, however, that the Court did not create
a freestanding tort of invasion of privacy, and that there are
still barriers to the widespread use of breach of confidence in
this manner in Australia.
The sex tape, breach of confidence and privacy
Mr Procopets videoed himself and his former de facto partner, Ms
Giller, having sex; at first secretly, but later with her consent.
When their sexual relationship finally ended, Mr Procopets showed
the videotapes to Ms Giller's family, friends and employer.
Ms Giller sought damages in the Victorian Supreme Court,
alleging breach of privacy and/or breach of confidence and/or
intentional infliction of mental harm.
In recent years, English courts
have expanded the action of breach of confidence in a manner
which has allowed public figures to use it to hold the media liable
for unwanted reporting of their private lives. Used in these
circumstances, it is now akin to a tort of misuse of private
At trial, Justice Gillard found the law did not recognise an
action for breach of privacy. Further, although the elements of
breach of confidence and intentional infliction of mental harm were
made out, compensation and/or damages (including exemplary damages)
were not allowed for distress-type injuries.
Ms Giller appealed.
After an extensive review of Australian and international
developments, the Victorian Court of Appeal held that there was no
reason that Ms Giller should not be able to recover damages for the
distress caused by this type of breach of confidence and awarded
her $40,000 in damages.
As the High Court did in ABC v Lenah Game Meats Pty Ltd
(2001) 208 CLR 199, the Victorian Court of Appeal side-stepped the
question of whether Australian law should recognise a tort of
privacy, stating that it was unnecessary for it to decide this
issue in light of its findings in relation to the action for breach
The effect of the case
Breach of confidence would be of little practical use in cases
involving a misuse of private information unless compensation is
recoverable for distress-type injuries; after all, distress, hurt,
humiliation, embarrassment and anger are likely to be the most
common human reactions to any misuse of private information.
Accordingly, this decision is an important development in the
Australian law relating to informational privacy. There are,
however, still a number of practical and legal barriers to using
(as occurs in England) breach of confidence as a widespread de
facto tort of misuse of private information, particularly against
the press. These obstacles include the amount of the damages
available for distress-type injuries (including the current
unavailability of exemplary damages in Australia), the existing
requirement of an "obligation of confidence" or
"confidential relationship" for breach of confidence in
Australia (the press will rarely be in a confidential relationship
with the owner/subject of the private information), and the likely
limits that freedom of the press and/or the public interest will
have on the emerging form of this cause of action.
It is unclear whether these limits will prevent the widespread
use of breach of confidence as a response to the misuse of private
information, or whether informational privacy will be dealt with by
developing a new statutory cause of action for breach of privacy as
recommended by the Australian Law Reform Commission, or by
developing a common law action for breach of privacy as in New
Zealand, or not at all. The only thing that is certain is that we
haven't heard the last word on the legal protection of private
information in Australia.
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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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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