Equitable damages for breach of confidence, tortious invasion of privacy, breach of statutory duty: privacy legislation

In Jane Doe v ABC [2007] VCC 281, the County Court’s Judge Felicity Hampel granted a cool quarter of a million dollars in damages for the tort of invasion of privacy, for breach of the statutory duty in s. 4(1A) of the Judicial Proceedings Reports Act not to publish identifying details about victims of sex offences, and for breach of an equitable duty of confidence the ABC was found to have owed to the complainant in a rape trial it reported on. This is an important decision in the law of confidential information, 22,000 words long and the product of 10 months’ work by her Honour. I cannot confess to having read it carefully yet, but Blakes have helpfully written a little note of it. I wonder whether Alan Jones’s lawyers have read this decision yet. Further, I wonder whether the child witness’s parents have read it. Just for the sake of having links to them on this blog, the other decisions on privacy as a cause of action post-ABC v Lenah Game Meats (2001) 208 CLR 199 (see the MULR commentary here) are:

  • Grosse v Purvis [2003] QDC 151 (a 6 year pattern of stalking exacerbated by intimidation); and
  • Giller v Procopets [2004] VSC 113 (where Justice Gillard said, in a case about a covertly recorded home made sex tape’s misuse after the end of the relationship):
  1. ‘Although it has been advocated from time to time that there should be a cause of action based on failure to respect the privacy of a person, both English law and Australian law have not recognised a cause of action based upon breach of privacy. In Kaye v Robertson[110] the English Court of Appeal held that there was no cause of action based upon personal privacy. This has been recently confirmed in Wainwright v Home Office[111]. In ABC v Lenah Game Meats Pty Ltd[112], the High Court was concerned with the grant of an interlocutory injunction where the claim was based on an invasion of privacy. The High Court recognised that the cause of action in privacy is in a process of development but held there is no authority at present which recognises such a cause of action in Australia. There is a degree of encouragement from the views expressed by Gummow and Hayne JJ[113].
  2. In my opinion the law has not developed to the point where the law in Australia recognises an action for breach of privacy[114]and[115].
  3. In my view the plaintiff cannot succeed on a cause of action based on breach of privacy.’
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