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Australia: Damages Awarded in Revenge Porn Case

(Feb. 12, 2015) In a recent decision, the Supreme Court of Western Australia awarded a plaintiff more than AU$48,000 (about US$37,500) in damages for breach of confidence in a case involving photographs and videos of her of a sexual nature being shared online by the defendant, the plaintiff’s former boyfriend. The judge also granted an injunction against the defendant to prevent further use and publication of the images. (Wilson v Ferguson [2015] WASC 15 (Jan. 16, 2015).)

Background

The parties in the case had been employed at a mine in Western Australia and also lived together during their time off work. The two had shared images of themselves with each other via text message, and the plaintiff gave evidence of her understanding that there was “a trust between the parties that the photographs would be private and that other people would not see the photographs.” (Id. ¶ 24.) The parties later broke up via text message, and the defendant subsequently posted 16 explicit photographs and two explicit videos of the plaintiff on his Facebook page, thereby sharing them with about 300 contacts, many of whom worked at the same mine. (Id. ¶ 27.) He removed the images later the same day, after the plaintiff begged him to take them down. (Id. ¶ 32.)

From the various text messages presented in evidence, the judge in the case inferred that the defendant had posted the images to his Facebook page because “he was angry at [the plaintiff’s] decision to terminate their relationship and because he wanted to cause her extreme embarrassment and distress.” (Id. ¶ 33.) He also found that the defendant was “well aware that the images were regarded by the plaintiff as private and that he did not have her consent or authority to show them to any other person.” (Id.) The plaintiff had not returned to work for nearly three months after the incident and “continues to feel humiliation and anxiety as a result of the defendant’s publication of the photographs and videos.” (Id. ¶¶ 40 & 42.) The defendant’s employment at the mine was terminated about ten days after he published the images. (Id. ¶ 41.)

Breach of Confidence Issue

The judge surveyed the principles of an action in equity for a breach of confidence. He noted that the essential elements of such an action are “that the information was of a confidential nature, that it was communicated or obtained in circumstances importing an obligation of confidence, and that there was an unauthorised use of the information.” (Id. ¶ 46.) In such situations, the court will exercise equitable jurisdiction in restraining disclosure, or further disclosure, of the information. (Id. ¶ 43.) The judge found that it is clear that “the equitable doctrine may be applied to images of a person, even where the images were created by the person sought to be restrained from disclosing the images.” (Id. ¶ 47.) He held that “the conduct of the defendant in posting the photographs and videos of the plaintiff to his Facebook page, from which they were accessible to a large number of people including employees at the plaintiff’s workplace, involved a breach of his equitable obligation, owed to the plaintiff, to maintain the confidentiality of the images.” (Id. ¶ 55.)

Compensation for Breach of Confidence

In addition to granting an injunction, the judge noted that equitable compensation is available in Australia for a breach of an equitable obligation of confidence. (Id. at 68.) He examined whether such compensation can be awarded for noneconomic loss comprising the embarrassment and distress caused by the breach. In doing so, he considered developments in technology and private communications, stating that the relief given in response to a breach should “accommodate contemporary circumstances and technological advances, and take account of the immediacy with which any person can broadcast images and text to a broad, yet potentially targeted, audience.” (Id. ¶ 81.) He held that, in order for the obligation to be enforceable, the equitable doctrine of breach of confidence “should be developed by extending the relief available for the unlawful disclosure of confidential information to include monetary compensation for the embarrassment and distress resulting from the disclosure of information (including images) of a private and personal nature.” (Id. ¶ 83.)

In awarding the plaintiff compensation of AU$35,000 in addition to her economic loss of AU$13,404 resulting from lost wages, the judge took into account the fact that the dissemination of the images in the plaintiff’s workplace had been done as an act of retribution intended to cause harm to her; the fact that she had not sustained a psychiatric injury; and the need for the amount of the award to not be disproportionate to amounts commonly awarded for pain and suffering in tortious personal injury cases. (Id. ¶ 85.) The award was significant because winning compensation for emotional distress under existing breach of confidence laws is difficult; usually a plaintiff must prove financial loss. (Privacy Laws Can Punish Facebook Revenge, STACKS LAW FIRM (Feb. 11, 2015).)

Implications for the Law on Breach of Privacy

Australia does not currently have a statutory cause of action for breach of privacy under federal law, although relevant amendments to the Privacy Act 1988 (Cth) have been discussed. The Australian Law Reform Commission (ALRC) specifically discussed this issue as well as possible remedies for breach of confidence actions for misuse of private information in a report published in 2014 titled “Serious Invasions of Privacy in the Digital Era.” (Serious Invasions of Privacy in the Digital Era (ALRC Report 123) (Sept. 2014), ch. 13, ALRC website.)

The Western Australian case is seen by some commentators as adding “fuel to the fire” for the establishment of either a statutory or common law tort of invasion of privacy. (Trenton Schreurs, Sexting, Facebook and “Revenge Porn”: A Cautionary Tale, LEXOLOGY (Feb. 6, 2015); Michaela Whitbourn, Facebook Sex Tape Case Has Implications for Privacy Law in Australia, SYDNEY MORNING HERALD (Jan. 25, 2015).)