Damages for breach of confidence in a social media context

20 July 2015 | Daniel Forrest, Herbert Smith Freehills

Key points

• In Wilson v Ferguson [2015] WASC 15, the Supreme Court of Western Australia recently granted an award of damages for non-economic loss in an equitable breach of confidence action involving an interference with an individual's personal privacy by another through the use of the social media platform Facebook.
• This decision increases the equitable doctrine's ability to more appropriately address interferences with privacy that are not captured by current privacy legislation, specifically where the interference is committed by an individual as opposed to a private sector organisation or government agency.
• This is the first reported decision since the Victorian Court of Appeal case Giller v Procopets (2008) 24 VR 1, where it was held by the court that monetary damages for non-economic loss were an available remedy for breach of confidence actions involving the misuse of personal information.
• This case and others involving the online or other publication of sensitive personal material raise the question as to whether the incremental expansion of the equitable doctrine of breach of confidence is the most appropriate tool to address personal privacy concerns in a digital age where mobile smartphone cameras and instant social media posts are virtually omnipresent.
• In its recent report on serious invasions of privacy, the Australian Law Reform Commission (ALRC) has recommended introducing a new Commonwealth Act enabling a statutory cause of action for serious invasions of privacy. The Commonwealth legislature is yet to act on this recommendation.

Facts

Mr Ferguson posted explicit videos and images of his former partner Ms Wilson on his Facebook page. During their relationship, the couple had shared explicit images with each other via text message. Mr Ferguson also used Ms Wilson's phone, without her consent, and emailed himself a number of explicit videos. Upon realising this, Ms Wilson requested and Mr Ferguson agreed not to share the explicit videos or photos. Ms Wilson also testified that she had told Mr Ferguson not to share any of the images or videos with anyone.

The relationship between Ms Wilson and Mr Ferguson began to deteriorate and Ms Wilson sent Mr Ferguson a text message saying that she "wanted nothing to do with him".

The court found that in retaliation Mr Ferguson posted 16 explicit photos and 2 explicit videos of Ms Wilson on his Facebook page. The images and videos were shared with approximately 300 Facebook friends of Mr Ferguson including a number of Ms Wilson's work colleagues. Recipients of such posts are able to download the photographs and videos and share them with others. The court inferred that a significant number of Facebook users had access to the images and videos and an even greater number of people were aware of their existence.

Shortly after the explicit posts were made by Mr Ferguson, Ms Wilson received calls and text messages from friends asking if she has seen his Facebook page. Ms Wilson then logged in to Facebook using a friend's account and discovered the explicit posts.

Ms Wilson immediately sent Mr Ferguson a series of text messages asking that the photographs and videos be taken down. Mr Ferguson removed the photos approximately two hours after they were posted.

Ferguson did not plead a positive defence and he failed to appear at the trial. Ms Wilson gave evidence that she believed that "the photographs would be private and that other people would not see the photographs" and that the publication of the images and videos caused her to be "absolutely horrified, disgusted, embarrassed and upset".

The court found in favour of Ms Wilson and, in addition to providing injunctive relief, awarded her damages including $35,000 for non-economic loss for the significant embarrassment, anxiety and distress caused by Mr Ferguson's Facebook posts.

Decision

In the absence of a legislative instrument directed toward invasions of personal privacy committed by individuals, Ms Wilson sought to rely on the equitable breach of confidence doctrine to claim damages against Mr Ferguson. To succeed in such an action, Ms Wilson needed to establish the following three elements:

1. the information (ie, the images and video) was inherently confidential;
2. it was imparted in circumstances importing an obligation of confidence; and
3. there has been an unauthorised use, or threatened use, of the information.

Justice Mitchell found that the defendant's online conduct constituted a breach of his equitable duty of confidence to maintain the confidentiality of the images and video.

His Honour confirmed that it was clear that the equitable doctrine of breach of confidence may be applied to images of a person, even where the images were created by the defendant and held that by posting the photographs and videos of the plaintiff onto his Facebook page, which was accessible to a large number of people including the plaintiff's friends and colleagues, the defendant had breached his equitable obligation to maintain the confidentiality of the images.

Damages for non-economic loss

Ms Wilson successfully argued that equitable compensation should be awarded to compensate her for non-economic loss (being embarrassment, anxiety and distress) caused by the disclosure of her confidential information. This issue was a particularly pertinent question in this case as Ms Wilson's primary claim of loss was for the humiliation and distress caused by the publication of the explicit images and video.

Justice Mitchell confirmed that, as was held in Giller v Procopets, equitable compensation is an available remedy for a breach of an equitable obligation of confidence. His Honour held the equitable compensation in this case should include an award to compensate the plaintiff, so far as money could, for the humiliation, anxiety and distress which had resulted from the defendant's publication of the images and videos in breach of the obligation of confidence owed by him to the plaintiff.

The viral nature in which controversial material is able to be shared online means injunctive relief is often an ineffective remedy with respect to disclosures occurring online. In many cases, including this one, there will not be any opportunity for injunctive relief to be sought or obtained before the information is broadly disseminated online.

Justice Mitchell stated that an ability to award damages for non-economic loss in relation to breach of confidence actions involving the misuse of personal information was necessary and appropriate in light of recent advances in technology. His Honour noted the pervasiveness of the internet, social media and portable devices which enabled access to those platforms and the not "uncommon contemporary practice of couples privately engaging in intimate communications".

His Honour also alluded to the speed by which distress and harm could be caused by the dissemination of confidential information via the internet, on social media and on other forms of electronic communication. The judge concluded that if there was no ability to award equitable compensation for non-economic loss, there could be no real practical remedy for breaches of the equitable duties of confidence involving personal information.

Implications for privacy protection in Australia

The Privacy Act 1988 (Cth) creates a set of Australian Privacy Principles that must be adhered to by Federal government agencies and those private sector organisations with an annual revenue of greater than $3 million. It also provides a mechanism under which an individual can lodge a complaint to the Privacy Commissioner in relation to alleged interferences with privacy by such entities. It does not however protect individuals from serious invasions of their privacy that are committed by individuals or small private sector organisations.

In its recent report on serious invasions of privacy, the ALRC recommended introducing a new Commonwealth Act enabling a statutory cause of action for serious invasions of privacy. The ALRC suggests in the report that the legislative tort should cover only intentional or reckless invasions of privacy. Under the proposal, upon establishing that there was an intrusion upon either:

• their seclusion, such as by physically intruding into the plaintiff's private space or by watching, listening to or recording the plaintiff's private activities; or
• their private affairs or misuse of their private information, an individual would be entitled to damages, including damages for emotional distress.

The Commonwealth legislature is yet to act on the ALRC's recommendation.

The incremental expansion of the equitable doctrine of breach of confidence, as evidenced in the decision in Wilson v Ferguson, arguably fills part of the void left by the Commonwealth's apparent reluctance to introduce a statutory right to sue for serious privacy invasions.

Associate professor David Rolph, a well-respected media law expert at the University of Sydney Law School, recently stated in the media that while the case "indicates that breach of confidence might provide a remedy for addressing a lot of personal privacy concerns" -- but trying to apply existing causes of action to new situations does not always "neatly fit," may distort the law and may have unintended consequences. Professor Rolph's view, with which this author agrees, is that "if privacy is a value that's worth protecting, it is worth protecting directly and we should think about that in a broader, more comprehensive way".