Beware of posting photos of others without permission on Facebook as it could be expensive!
The Australian Law Reform Commission’s (ALRC) Final Report, Serious Invasions of Privacy in the Digital Era (Report 123, 2014) was tabled in Parliament on the 3rd September 2014. This report makes
recommendations for a tort contained within a new Commonwealth Act that would strengthen people’s privacy in the digital environment. The act would provide a remedy for invasions of privacy that are serious, committed intentionally or recklessly and that cannot be justified as being in the public interest — for example, posting sexually explicit photos of someone on the internet without their permission or making public someone’s medical records.
The recommendations in the Report also recognise that while privacy is a fundamental right that is worthy of legal protection, this right must also be balanced with other rights, such as the right to
freedom of expression and the freedom of the media to investigate and report on matters of public importance.
The Report was commissioned by the former Labor Government and in an article in ‘The Australian’ of the 4th April 2014 the current Attorney-General announced that the Abbott Government was not in favour of such a Commonwealth Act.
Traditionally the Judiciary has held the stance that there is no right to privacy. However, more recently the majority of the High Court held that previous case law forms no impediments to the tort of invasion of privacy and that under the right circumstances, such a tort could exist.
In the UK, breach of privacy has been wrapped up in a breach of confidence action. A breach of confidence exists where information is confidential, and is imparted in circumstances importing an obligation of confidence, whilst there has been unauthorized use of the information to the detriment of the party communicating it or unauthorized use to that effect has been threatened. However, case law now suggests that the majority of Claire Storace High Court justices support the protection of
confidential information obtained outside a relationship of confidence where the recipient knows, or has reason to know, that the information is confidential.
Superior UK Courts followed the Australian High Court in two cases involving damages awarded for the
unauthorised publication of photos, namely that of the wedding of film stars Michael Douglas and Catherine Zeta-Jones, and that of supermodel Naomi Campbell leaving a rehabilitation clinic. A breach of confidence was extended to include surreptitious means of acquiring and then publicising private information, which essentially forms an invasion of privacy.
One pioneering Queensland Judge in the District Court in 2003, Senior Judge Skoien, recognised a civil action for damages based on the actionable right of an individual person to privacy outright, and in 2007 the Victorian County Court also recognised a tort for invasion of privacy and awarded damages accordingly.
However, Superior courts in Australia still feel they are lacking an action for invasion of privacy,
and have used a breach of confidence action instead, particularly as a means of compensation for emotional distress upon the publication of sexually explicit material.
In 2008 the Victorian Court of Appeal awarded compensation to a woman for emotional distress after
her ex-partner distributed copies of sexually explicit video tapes of them both in 1996. More recently, at the beginning of this year, a West Australian woman was reportedly awarded $48,404 in compensation, of which $35,000 was for emotional distress, when her ex-boyfriend, also a work colleague at the same mine site, posted sexually explicit videos and photos of her on Facebook for all their workmates to see. West Australian Supreme Court Justice Robert Mitchell followed the Victorian Court of Appeal in awarding compensation as well as an injunction and granted the compensation based on the humiliation, anxiety, and distress the plaintiff had suffered because of the publication of the images.
Justice Mitchell said that due to technological advancements, and the invasiveness of social media, it had only become easier and faster to spread similar content to a broad audience all over the world, sometimes in a matter of seconds.
As such, there is no time for injunctive relief to be sought and/or obtained before the images are distributed, and therefore compensation was required.
Essentially though there may not yet be an Act in place protecting the right to privacy, the High Court has not ruled it out, and the lower courts are paving the way for compensation regardless. The
superior courts are following suit, at least with regards to compensation for emotional distress even though it is presumed to arise out of a supposed breach of confidence. As such, posting embarrassing photos of people on the internet without their permission may result in costly payments in damages.
