Breach of confidence and defamation are two different causes of action that are to be pleaded in a Statement of Claim separately. Both actions give rise to the remedies of damages and injunctions. This article describes the action of breach of confidence, however, for further information on the elements of defamation please see our article entitled “Elements of Defamation”. We also have more detailed articles on the individual elements of defamation.
Actions for breach of confidence also raise questions of the level of privacy that should be afforded to a Plaintiff. We have written an article entitled “Privacy and Defamation” which states that there is an emerging tort of invasion of privacy in Australia, unlike in the United States of America and New Zealand where it has been confirmed that there is a tort of invasion of privacy recognised by the Courts.
Also, English Courts of Law have recognised the tort of invasion of privacy. As George states1, “[i]f English law is followed, the law of confidentiality would be extended to include information for which the media either knows or ought to know that the plaintiff can expect his or her privacy to be protected.”
We have also written an article entitled “Photographs and Filming of the Public – What is Legal?” which may be of interest to readers of this article.
Breach of Confidence
The elements of a breach of confidence claim are as follows2:
- The information itself must have the necessary quality of confidence about it;
- The information must have been imparted in circumstances importing an obligation of confidence; and
- There must have been an unauthorised use or misuse of that information to the detriment of the party communicating it.
In Giller-v-Procopets3, the parties had lived in a de facto relationship. During the relationship, the Defendant videotaped their sexual activities. Following the breakdown of the relationship, the Defendant sent a copy of the videotape of their sexual activities to the Plaintiff’s father and threatened to send it to her friends and employer. The Victorian Court of Appeal awarded her $40,000 for breach of confidence, including $10,000 for aggravated damages. The Court declined to recognise a right to privacy even though the Plaintiff had pleaded invasion of privacy.
In Wilson-v-Ferguson4, the Defendant published sexually explicit photographs and videos of the Plaintiff via Facebook, following the breakdown of their relationship. The photographs and videos were distributed to some 300 Facebook friends of the Defendant, some of whom worked at the same place that both the Plaintiff and Defendant worked. The Plaintiff sought an injunction as well as damages for mental harm, distress, humiliation, loss of self-esteem, and embarrassment. The Court held that the Defendant had breached his equitable obligation to the Plaintiff to keep the photographs and videos confidential and in finding that, granted an injunction and awarded damages of $35,000 plus economic loss of $13,404, and the Defendant was ordered to pay the Plaintiff’s costs.
In both of the above cases, the parties were in intimate relationships so the elements of breach of confidence were easier to establish. If the parties are not known to each other, it may be difficult to prove that the information that was published was imparted on the basis of an obligation of confidentiality.
Unlike in claims for negligence the Plaintiff need not prove that they have suffered a psychiatric injury. Damages can be awarded for hurt and distress.
In Campbell-v-Mirror Group Newspapers Ltd5, famous supermodel, Naomi Campbell, brought an action against a newspaper for publishing an article and photographs of her stating that she was receiving treatment for a drug addiction, even though she had previously stated in interviews that she did not take drugs. The trial judge awarded her damages for breach of confidence. The matter was appealed to the House of Lords which upheld the trial judge’s decision. The House of Lords held that “…the law imposes a ‘duty of confidentiality’ whenever a person receives information he or she knows or ought to know is fairly and reasonably to be regarded as confidential” 6.
Carr argues that although breach of confidence is an equitable cause of action, that should not preclude a Court from awarding exemplary and aggravated damages7. In the New Zealand case of Aquaculture Corporation-v-New Zealand Green Mussel Co Ltd8, the Court held that there is no reason why the full range of remedies should not be available for breach of confidence, including exemplary damages.
Douglas-v-Hello! Ltd9, was a claim in the English Courts made by famous actors Michael Douglas and Catherine Zeta-Jones. When they married at the Plaza Hotel in New York they had signed a contract with OK! Magazine for the exclusive use of their wedding photographs. An unauthorised paparazzo somehow infiltrated the wedding ceremony and took photographs which he sold to Hello magazine. Douglas and Zeta-Jones sought an injunction restraining Hello magazine from publishing the unauthorised photographs. In the initial proceedings, the Court refused to grant the injunction stating that privacy at a wedding of 250 guests could not be expected. However, they appealed to the Court of Appeal which held that the wedding was confidential and that the unauthorised photographs were a breach of confidence. Douglas and Zeta-Jones obtained their injunction and an award of damages.
In Cruise and Kidman-v-Southdown Press Pty Ltd10, celebrities Tom Cruise and Nicole Kidman sought an injunction restraining the publication in the women’s magazine New Idea photographs of their adopted children taken at a small family gathering by an unidentified source. Cruise and Kidman argued breach of confidence, defamation, and breach of copyright. The Court refused to grant the injunction, but Gray J expressed his great sympathy for the Applicants in attempting to maintain their privacy. Gray J determined that a general right of privacy was not recognised by the law in Australia.
Likewise, in Australian Broadcasting Corporation-v-Lenah Game Meats Pty Ltd11, an application for an injunction by Lenah Game Meats Pty Ltd failed on appeal to the High Court of Australia. In that case, unidentified trespassers broke into the Respondent’s abattoir and installed hidden cameras, in order to film the processing and slaughtering of brushtail possums for human consumption. A film was made using footage from the hidden cameras and provided to the Applicant, the ABC, which sought to broadcast it on national television. The Appellant argued that there was no legal or equitable basis upon which the Respondent was entitled to final injunctive relief and, there being no serious question to be tried between the parties, therefore, the Respondent was not entitled to interlocutory relief by way of an interim injunction. The majority of the Court, 5:1, agreed with the Appellant. Gleeson CJ made the following comment12:
“But equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence. And the principle of good faith upon which equity acts to protect information imparted in confidence may also be invoked to “restrain the publication of confidential information improperly or surreptitiously obtained.” The nature of the information must be such that it is capable of being regarded as confidential.”
Defamation law seeks to protect and uphold reputations. Actions for breach of confidence seek to maintain confidentiality of information and in that way ensure privacy is afforded to a Plaintiff. It may be that in some cases a Plaintiff is able to bring an action for both defamation and breach of confidence. Until such time as an Australian appellate Court recognises the tort of invasion of privacy, it will be left to the equitable action of breach of confidence to afford some privacy to Plaintiffs.