Published on 27/06/2007

Privacy and the Media

PRIVACY, BREACH OF CONFIDENCE, INVESTIGATIVE REPORTING AND JOURNALISTS’ SOURCES

DIRECT PROTECTION AT COMMON LAW?

Starting point: Kaye v Robertson [1991] FSR 62
Facts: K was a well-known actor in the UK who was driving through the street when a piece of wood smashed through his windscreen and seriously injured him. He was taken to the hospital where he was put in intensive care, and then moved into a private room. R was the editor of Sunday Sport, which was a weekly publication with a ‘lurid and sensational style’, who was the second defendant. On February 13, a journalist from the newspaper went to K’s room and, ignoring warning signs not to enter under any circumstances, entered the room and apparently interviewed and photographed K using a flashbulb. K, however, had no recollection of the incident. R made it clear that they intended to publish an article about the events surrounding K, who subsequently brought proceedings for an injunction to restrain publication. The arguments made by K were that the article implied that K consented to give the interview and to be photographed (libel), malicious falsehood, trespass to the person and passing off.

Found (Glidewell LJ): with respect to libel, he found that the implication in the article that K had consented to the interview would have the effect of lowering K in the ‘esteem of right-thinking people’ and was clearly defamatory. Cited Tolley v JS Fry as the main authority for the finding of defamation in this instance; however, it was argued by R that in actions for defamation, the power to grant an injunction must ‘only be exercised in the clearest cases, where any jury would say that the matter complained of was libellous and where if the jury did not so find the court would set aside the verdict as unreasonable’ (William Coulson & Sons v James Coulson & Co [1887]) Therefore, the judge decided not to base an injunction on a right of action for defamation because in this case it was found that the conclusion that a jury would make a finding of defamation was not inevitable.

As to malicious falsehood: the essentials of the tort are that the defendant has published about the plaintiff words which are false, that they were published maliciously, and that special damage has followed as the direct and natural result of their publication (s 3(1) Defamation Act 1952 (UK) states that it is sufficient if the words published are calculated to cause pecuniary damage). Test (Coulson v Coulson) applied that the plaintiff must show that the words were false. In this case, the injunction was granted in respect of this tort because the test was found to be satisfied

No trespass to the person or passing off was found, and therefore an injunction was granted

•    Note Bingham J: the case highlights the failure of the common law and statute in the UK to protect effectively the personal privacy of individuals
o    See Legatt J for the development in the US: the right of privacy has been recognised there as a broad principle to protect the individual against ‘the infliction by the press of mental pain and distress through invasion of privacy
o    A ‘right of publicity’ has also developed to protect the commercial interest of celebrities in their identities

DIRECT PROTECTION AT COMMON LAW?

ABC v Lenah Game Meats (2001) 208 CLR 199 (leading authority for the tort of invasion of privacy)
Facts: L was an abattoir who killed possums. Someone broke and entered the premises and installed hidden cameras, the film of which was given to an animal-rights group, who then sold it to the ABC, who intended to broadcast the footage. L instituted proceedings seeking an injunction restraining the publication of the footage. The issue was whether there was an identifiable cause of action; what cause of action could be available to which an injunction could attach

Tasmania SC: it would be unconscionable for the ABC to broadcast the footage they received; majority decided that by general notions of unconscionability; minority of High Court found that it was possible to restrain publication by reference to some general notion of unconscionability.

High Court majority: remedies attach to identifiable causes of action and not to idiosyncratic notions of fairness; needs to be identifiable and recognised. In this case, the majority found that the TASSC erred. The next issue was whether there was an identifiable cause of action against the ABC. The issue was what cause of action L has against ABC: it is not trespass or private nuisance. Therefore there was a suggestion of potentially breach of confidence; cause of action based on IP rights at issue and also that there was a cause of action for the tort of invasion of privacy.

2nd argument: in relation to copyright it emerged from the joint judgment of Gummow and Hayne JJ. The argument was that when the Animal Liberation Group trespassed on land they took footage, which raised the question of who owned the copyright in the cinematograph film taken by the trespassers, see pg 156 for the argument that in the circumstances of the trespass, when the group created the film they held the copyright on constructive trust for L. If there is a constructive trust over the copyright, by what means would the ABC be held liable and restrain ABC for broadcast? The provision to the ABC of the tape was a breach of trust and therefore the ABC, by broadcasting this would be acting in knowing assistance pursuant to Barnes v Addy and its conscience should be constrained by an interlocutory injunction. The issue then turns upon breach of confidence or the tort of invasion of privacy

Breach of confidence (Gleeson CJ): consider developments in UK law for the effect of this judgment; see pg 1/58 of reading materials. Begins by recognising the difficulty of establishing a relationship between ABC and L (from equity in order to have an action for breach of confidence there needs to be a relationship of confidence and also confidential information that is disclosed that arises out of the relationship). The problem for Gleeson CJ is that even accepting that a cause of action could be made out; there are real difficulties in identifying the information to be disclosed as confidential. Discusses what constitutes private or confidential information; most quoted paragraph is paragraph 42 (1/60). Most important point is the difficult way/real problem that definitions of publicity and privacy pose for the purposes of definition (whether it is based on activity, exercise of power, location, some intrinsic notion of the activity itself?). Notes the multiple senses in which privacy is used and it is not useful to distinguish privacy from publicity. In examining whether information was private, G suggested that the activity occurred on private property but was subject to governmental registration. The abattoir had to be licensed and there were inspections conducted. If people came onto the property there was nothing to shield the people from looking at the abattoir. In this case the activity was not private or confidential and couldn’t be protected by a cause of action for breach of confidence. Also note the final sentence, ‘the requirement of disclosure or observation would be highly offensive to a reasonable person of ordinary sensibilities is a good test for what is private’. One of the reasons that the common law is slow to devise privacy protection is the difficulty in articulating a standard. Gleeson CJ provides a working definition for what is private and acknowledges the possibility of identifying standards/norms by which legal regulation of privacy may be achieved. It contemplates disclosure/observation of information or conduct and assesses whether that disclosure by reference to the standard of being highly offensive.

Other judgments dealt with the issue by reference to the possibility of a tort in invasion of privacy (Gummow and Hayne JJ): was important to deal with the status of Victoria Park Racing v Taylor which had been cited as an impediment for identifying a tort of invasion of privacy in Australian law. Identified what the status of the particular case was; see pg. 1/61 for the result. According to the judges, Victoria Park Racing properly understood is only authority for the proposition that the tort of private nuisance doesn’t protect privacy as an int3erest. From paragraph 107, the result of the proper recognition of the ratio was that the case doesn’t stand in the path of the development of such a course of action because it only established that private nuisance only protects privacy. Also suggested that the common law should recognise such a tort but it is unclear whether they have in fact established a tort. On the best reading of the judgment in Victoria Park Racing, because Lenah is a corporation it doesn’t have a private life and privacy as an interest to be protected is an incidence of human dignity and is therefore only for the benefit of natural persons. In this case, Gummow and Hayne JJ suggested that even if a tort can be recognised it wouldn’t be for the benefit of entities such as L. the effect of this was that the majority found that there was no cause of action L could have against ABC and in the absence of a cause of action L couldn’t have an interlocutory injunction to restrain the broadcast of the footage.

Kirby J: took a broad view and found that in circumstances where information which lacks the quality of confidence has been obtained illegally, tortiously, surreptitiously or otherwise improperly, the preservation of the confidentiality of the information may be of substantial concern and the jurisdiction of the court should be exercised in such a situation even where the possess or is itself innocent of wrongdoing.

Grosse v Purvis (2003) Aust Torts Reports 81-706
Facts: G had an affair with P and after she decided to break it off P began to engage in a course of conduct which G found to be unfounded and unwarranted. G instituted proceedings against P and consistent with Kaye v Robinson, G relied on a range of torts which relied on the specific incidents of conduct engaged in. she alleged that P had engaged in acts of trespass to land, private nuisance, battery, negligence, intentional infliction of mental harm (Wilkinson v Downton principle). Identified what causes of action would apply to each incident. She also claimed that the course of conduct overall was actionable as a tort of invasion of property derived from ABC v Lenah Game Meats or that the conduct constituted the course of harassment which she argued Australian law should recognise

Found: examined whether the incidents established the torts of which she complained and then turned to the issue of whether the conduct amounted to an invasion of privacy or the tort of harassment. He was prepared to accept that the tort of invasion of privacy was recognised from ABC v Lenah Game Meats against natural persons and that invasion of privacy had been made out on the facts of this case. Because the HC didn’t need to consider whether a tort of invasion of privacy could be made out they didn’t consider what the elements of the tort were.

In this case, the judge viewed there to be an actionable right of an individual person to privacy; see paragraph 44 (1/120) of this case where the judge thought there were 4 elements for the cause of action. Firstly, there is a willed act by the defendant (the trial judge reserved the question of whether there could be a negligent invasion of privacy). The second element was that the conduct needed to intrude on the seclusion/privacy of the plaintiff and the intrusion needed to occur in circumstances that would be highly offensive to a reasonable person of ordinary sensibilities. Lastly, the intrusion must cause the plaintiff a detriment in the causing of mental harm or distress.

In this case there was evidence that G had suffered psychological harm in the course of conduct. The trial judge was willing to acknowledge a defence of public interest to claims of invasion of privacy but found that in this case no such defence was arguable. Applying the test to the facts, the judge was prepared to find that there was a tort of invasion of privacy made out that was without defence. He was also prepared to accept that the tort of harassment formed the part of Australian law but he didn’t elaborate on this. P appealed to the Court of Appeal, but the case settled at the door of the court.

Kalaba v Commonwealth [2004] FCAFC 326
Facts: K claimed a duty of care based on the timeliness of the deliveries of the mail. He claimed that the Commonwealth had failed to deliver his letters on time and when finally went to the office his mail had been opened and it constituted an invasion of privacy. Under the Australian Postal Corporation Legislation there was complete immunity to Australia Post.

Found: the Full Federal Court suggested that ABC v Lenah Game Meats does not establish positively a cause of action for invasion of privacy in Australia and the HC would have to declare that. The court decided that the weight of authority regardless of the finding of an action for invasion of privacy in Grosse v Purvis was against the proposition. There would be difficulties in this case for K proving a causal connection from the breach of privacy and his conviction for arson

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Giller v Procopets [2004] VSC 113
Facts: G and P decided to make videos of them having sex and the male decided upon breaking up, to circulate the tapes to his colleagues. The plaintiff was not a fan of the tapes being circulated and suffered distress as a result and instituted proceedings against P. G relied on a number of causes of action; breach of confidence, action on the case for wilful injury and tort of invasion of privacy

Breach of confidence: it was clear that there was a relationship between the parties that was confidential and that the information was confidential. The final element is whether the disclosure results in a detriment to the plaintiff which was bound up with the issue as to whether any remedy could issue. The equitable remedies that issue from establishing a cause of action are account of profits; in this case, given that the circulation was gratuitous there were no profits. The other principle of equitable injunction was useless given that there had been widespread disclosure and an injunction would be a useless remedy. The plaintiff argued she should get damages for mental distress but in this case it would be in the nature of common law damages, which cannot be received for an equitable cause of action and the claim didn’t satisfy the requirements for equitable compensation. Because there was no effective remedy no remedy could be granted even though breach of confidence had been made out. Contrast with Douglas v Hello; even though the plaintiff in Giller established a cause of action she was granted no remedy

Wilful injury: evidence didn’t disclose that the plaintiff had suffered recognisable psychiatric harm and therefore she couldn’t make out an action for wilful injury.

Tort of invasion of privacy: court found that consistent with Kalaba the decision of ABC v Lenah Game Meats didn’t establish a tort of invasion of privacy for natural persons. The court found that while the merits of the case were worthy the claim couldn’t be put within some recognised cause of action. The case illustrates the limitations of the common law and equity of providing remedies in situations where there is a clear invasion of privacy that should provide protection.

•   In considering problems involving invasion of privacy need to consider the range of torts and make an argument based on whether there ought to be a direct protection of privacy; is insufficient to state that there is no tort of invasion of privacy even in cases which invasion may be obvious

Privacy protection: New Zealand
•   NZ: tort of invasion of privacy, but is limited to the public disclosure of private facts

Tucker v News Media Ownership Ltd [1986] 2 NZLR 716.
Facts: T had been convicted of various offences for indecency; years later he developed a heart condition which required a transplant. The government ended transplants in NZ because they were costly and therefore T needed to come to Australia for the transplant, which would cost money his friends and family decided he would raise money by going to newspaper, radio and TV stations. There was a media campaign to elicit sympathy to allow T to have his transplant. Given the publicity, it became apparent that there were people who knew that T was a former sex offender; they went to the Truth newspaper who threatened to publish the information. The newspaper sought a response from T, which alerted him to their intention to publish the facts and therefore sought an injunction. He sought to extend the injunction against News Media, who sought to have it dissolved. There were 2 bases upon which they sought for dissolution. They argued that there was no arguable cause of action disclosed and the injunction didn’t attach to a known cause of action in NZ law. The second issue was that another media outlet which wasn’t bound had threatened to publish details of the conviction and in fact a tabloid newspaper had already done so and so there was an issue of the efficacy of the injunction as a remedy

Found: injunction was properly granted because there was an arguable cause of action because here there was an apprehended public disclosure of private facts (knowledge of T’s spent convictions) and the Truth sought to publish those (public disclosure). Found that NZ law recognised a tort of privacy in the public disclosure of private facts that progressed naturally from the Wilkinson v Downton principle of the tort of intentional infliction of emotional distress or physical damage

In relation to the 2nd issue, it was found that given that another news outlet had threatened to publish these and they had already been published in Sydney it would be difficult to argue that News Media itself would be unable to disclose the material. Because the injunction was futile in the circumstances, the injunction was dissolved

•   Case is important because
o   It is a recognition of the tort of invasion of privacy in the form of a public disclosure of private facts
o   Indicates that there can be in NZ law for an injunction to restrain a public disclosure of private facts (query as to damages if the tort had been made good)

Hosking v Runting [2005] 1 NZLR 1
Facts: R was a paparazzo in NZ and took photographs of H, who was a NZ celebrity and his twin children who were being pushed down the street in a stroller. In this case, R was going to sell the photos to New Idea who intended to publish the photos. The Hs claimed their privacy had been invaded (the privacy of their children). The issue went to the NZCA as to whether there was a tort of invasion of privacy in NZ and if so what the form of it was. Considering what the form was, whether it could provide a level of protection in this case

Found: NZCA considered the protection afforded in many jurisdictions. Concluded that upholding the decisions, there was a tort of invasion of privacy in NZ but it was limited to the public disclosure of private facts. The court was invited to follow the UK approach (development of the equitable cause of action in breach of confidence). They refused because there was no good reason to distort the fundamental nature of the cause of action in breach of confidence because it served a defined and known purpose and the UK approach would distort that cause of action. Related to this was a view expressed that privacy and confidence, while related concepts, and are conceptually distinct. Consider an example of something that is private but not confidential (going to the bathroom). This is considered private but not confidential. If there was footage of someone going to the toilet, the publication of that would not be a breach of confidence but it would be clearly an invasion of privacy. Privacy and confidentiality are related but separate concepts and the reasoning of the NZCA was that you in fact distort a concern to directly protect privacy if you try and shoehorn direct protection of privacy into breach of confidence. Found that it is more satisfactory that privacy was distinct from confidentiality

In turning to apply the limited form of the tort to the situation, they accepted that the test should be the test identified by Gleeson J in Lenah that the public disclosure of private facts is made out when there is a disclosure in circumstances where it would be highly offensive to a person of ordinary sensibilities. In this situation there was a question as to whether the facts in question were a private fact to be disclosed. Even accepting that photographs amount to private facts there is a real question as to public disclosure is highly offensive to a person of ordinary sensibilities. The NZCA found that this was not considered highly offensive to a person of ordinary sensibilities

•   Elements of the tort of invasion of privacy in NZ (from Hosking v Runting):
o   Actionable as a tort to publish information/material in respect of which the plaintiff has a reasonable expectation of privacy, unless that information/material constitutes a matter of legitimate public concern justifying publication in the public interest
o   Whether the plaintiff has a reasonable expectation of privacy depends largely on whether publication of the information/material about the plaintiff’s private life would in the particular circumstances cause substantial offence to a reasonable person
o   Whether there is sufficient public concern about the information to justify the publication will depend on whether in the circumstances those to whom the publication is made can reasonably be said to have a right to be informed about it.

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Position in the UK

Wainwright v Home Office
Facts: W went to visit relates in jail and the prison officer suspected they were smuggling drugs and so had to go through a strip search. Under the Home Office rules there were rules as to how this should be conducted. One rule stated that the strip search was to be conducted in a room that was not viewable from the outside by two persons of the person’s gender, would only be asked to remove one part of clothing at one time. The strip-searchers contravened many of the regulations in searching the Wainwrights. Both of the searches occurred in rooms fully visible to the residential block of towers next to the prison and there were more than 2 officers present and in Mr W’s case there were a number of women and both had to stand fully naked. The Ws argued Wilkinson v Downton intentional infliction of mental harm.

Found: the House of Lords argued that neither had articulated psychiatric harm and the particular tort required recognised psychiatric harm. Above this, the House of Lords found that the liability should not be recognised as a separate tort. The only remaining cause of action was a tort of invasion of privacy. The H of L found that there was no such tort recognised under English law, which is consistent with the development of UK law in breach of confidence.

Note with this case and Hosking: the possibility that in a tort of invasion of privacy one can get damages for mental and emotional distress which do not require proof of recognised psychiatric harm
•   Hosking v Runting: there was the suggestion that damages could be awarded without the proof of psychiatric harm
•   UK: people have received damages for distress for an equitable cause of action
•   Both these approaches to the issue of remedies proceeding on the basis that invasion of privacy can sound in damages even if there was no psychiatric harm so that embarrassment is sufficient

Also note the approach of the US to the issue of privacy protection: RSM Summary notes, ‘Invasion of privacy torts in American law’
•   Courts have developed the most sophisticated body of law: are 4 torts which are grouped loosely under ‘invasion of privacy’ (Prosser’s 4-fold categorisation of US torts)
•   1: public disclosure of private facts
o   Gives effect to the conception of the importance of privacy in terms of informational privacy
o   Application is circumscribed by the First Amendment (right to free speech): recent decisions have almost abolished this torts
-   Florida Star v BJF: court held that it a newspaper had immunity from publishing the name of a rape victim
•   2: unreasonable intrusion upon the seclusion of another
o   Gives effect to privacy as a territorial form of personal interest: you have a right to your own personal/private space
o   Scope of the tort is wide; but is narrowed because courts hold that there is no remedy for intrusions upon people in publicly accessible places
•   3: tort of portraying a plaintiff unreasonably in a false light
o   Can portray true facts/private facts but do so in an unreasonable way which puts the plaintiff in a false light (has overlap with defamation)
o   Overlap with defamation: has the same requirement that the plaintiff prove that the defendant published the report with knowledge of its falsity or in reckless disregard for the truth
•   4: tort of publicity
o   Appropriation of the image or likeness of a plaintiff; it is an incident of being a natural person that you should have some right over the use and deployment of your image (particular for commercial gain)
•   Interesting point: invasion of privacy is not frequently argued because while the law has recognised the 4 forms, the impact of the 1st amendment has developed countervailing defences which means that the torts are infrequently pleaded and infrequently successful

•   Under US Constitution there are guarantees as to private life and freedom of speech: the presence of these rights has encouraged courts to engage in a consideration as to how these rights can be protected and how they conflict; it is not coincidental that an interest in direct privacy protection has emerged in NZ and the UK as a result of both these jurisdiction adopting constitutional Bills of Rights with a concern to protect privacy as well as protection of freedom of speech
o   In both those countries, the common law has considered how the rights have been protected, and note that the reason why in Australia there hasn’t been privacy protection developed is the lack of the explicit statutory constitutional right to privacy and freedom of speech; Australia simply accepts these as inherent but haven’t developed a way in which these rights should be directly addressed and how they conflict with each other
o   Indicates a reason why the UK and NZ has recognised a degree of privacy protection in those countries

INDIRECT PROTECTION AT COMMON LAW

Trespass & Privacy
•   Trespass involves a direct interference with the use and enjoyment of land: action per se (without proof of damage) because it involves a direct interference
•   Private nuisance: requires proof of damage because it is an indirect interference

Trespass: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333
Facts: A lived on and operated a dirt bike track at Wyee; to build it he collected used tires. The local council became concerned about the environmental hazard that was caused by decomposing tires and organised a raid on property and invited A Current Affair to come along. ACA recorded the raid; Tara Brown, the reporter introduced herself and identified herself and A told her to get off the property. Later, one of the cameramen snuck onto the property and got footage of the dirt bike track, which they then used on the story. A instituted proceedings for trespass to land against Channel 9 and succeeded. Channel 9 argued that there was an implied license for its employees to go onto the land and to communicate with the owner of the property. There is an implied license recognised at law which allows someone to go onto property to communicate with you and unless you take positive steps to preclude that step then there is an implied license for the world to enter your property to communicate with you. In this case, the implied license wasn’t precluded because the gate wasn’t locked and there were no other positive steps taken

Found: even if Channel 9 entered pursuant to an implied license, to have the benefit you have to be acting for the purpose for which it was conferred. Here, it was conferred for communication but the purpose of Channel 9 was to obtain the footage. Because they had entered for a purpose alien to the purpose for which the license had been conferred, they couldn’t claim the implied license and their action was trespass. Channel 9 then argued that media outlets had an implied license to seek an interview with the occupiers of the property. Found that the common law sets its face against recognising special privileges for the media and there was no principled basis to discern an implied license specifically for the license. Even if there was a license implied, in this case the entry was not for the purpose of seeking an interview and it was to provide an opportunity to get footage.

The entry was trespassory from the outset; in this case, Spiegelman J made comments as to the interests protected by trespass. Trespass protects possessory interests in land; in the course of his judgment he identifies privacy as an incident of trespass of land. One incidence of possession is your right to protect your privacy when you are on the land. He recognised that the tort of trespass to land can incidentally afford a measure of protection for the possessor’s privacy and one of the functions of a possessor being entitled to let people on or exclude the outside is bound up with some incidental measure of privacy protection. He was at pains to point out that privacy protection is directly protected, but agreed it was an incident of the primary purpose which was the protection of possession.

The court awarded $100,000 in damages, but the CA halved the payout and awarded only compensatory and aggravated damages by finding that the conduct of Channel 9 was not sufficiently egregious, high-handed or contumacious to justify the award of additional damages. Compensatory damages provide remedies for actual pecuniary losses and to vindicate the plaintiff’s violation of possession of land. Aggravated damages can be awarded where the conduct of the defendant aggravated the insult to the plaintiff as a result of injury from the tort. Exemplary damages are awarded if there are additional factors.

Craftsman Homes Australia Pty Ltd v TCN Channel 9 Pty Ltd [2006] NSWSC 519
Facts: a viewer of ACA phoned them about dodgy practices of C. ACA decided to do a story on this and investigated and found at least 4 incidences where they claimed that C had done a substandard job. To get footage, they had a researcher act as a customer. During the meeting she had with C her mobile phone rang because her husband was going to come and join her because he was interested in being part of the process. The head of C went to let in the husband who was not in fact a husband of the researcher but was a reporter of ACA. The reporter had a Handicam on his person and sat down to converse with the head and during the course of which he got up and declared he was Ben from ACA to confront C about dodgy building. C instituted proceedings for defamation and trespass to land. The imputations are that C performed substandard building work. The case is interesting because here Channel 9 managed to justify the imputations and relied on 4 different contracts in the course of which the court was satisfied that C did in fact engage in substandard building practices. In this case, there was a complete defence to a claim in defamation. The balance of the judgment is taken up with the defence of justification which was pleaded under the old s 15 which required public interest as an element of the defence and C argued there was no public interest because there were purely contractual matters.

Found: building standards are a matter of public interest and it was an unduly narrow construction of the facts to argue that it was a private matter of contract law. Channel 9 had a complete defence but they had no defence tow hat was a clear trespass to land. There was a direct interference with the use and enjoyment of land and it was clear that both the researcher and reporter went onto the property for reasons that were wholly alien to the implied license.

Exemplary, compensatory and aggravated damages were awarded ($230,000) for trespass to land. Significant damages may be awarded in such circumstances and even if the claim for defamation cannot be made out, if there is a direct encroachment on land then you can always argue trespass

Wallis v Wallis (1995) 13 SR (WA) 218
Facts: W2 was excommunicated from the Exclusive Brethren. The plaintiffs were other members who had remained in the EB. W2 took his story to Channel 9 and a story was done about the EB. As part of it, the employee of Channel 9 and W2 went to W1’s house. The proceedings against Channel 9 were settled.

Found: the district court of WA awarded damages against W2 being in the way of compensatory damages and exemplary damages. Discussed the types of damages to be awarded in actions for trespass; exemplary damages may be awarded if it appears that, in the commission of the wrong, the conduct of the defendant had been high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff’s rights. Aggravated damages are awarded by way of compensation for injury to the plaintiff resulting from the circumstances and manner of the defendant’s actions. Exemplary damages, however, are awarded to ‘punish and deter’ and are punitive in character. The same set of circumstances may justify either exemplary or aggravated damages, however.

Whiskisoda Pty Ltd v HSV Channel 7 Pty Ltd Pty Ltd, unreported, Supreme Court of Victoria, 5 November 1993, McDonald J
Facts: Channel 7’s employee went to a venue operated by W; at the premises there was nude tabletop dancing where Channel 7 wanted to explore this issue of public interest and therefore asked the employee to video the dancing. W claimed that there were signs which informed patrons that no photography or cameras were to be permitted to be used. The employee of Channel 7 claimed he saw no such signs but nevertheless concealed the camera because he thought W wouldn’t be amenable to him openly filming on the premises. The footage was taken and a story was to be mounted when W became aware of the events. They sought an interlocutory injunction to restrain the broadcast of the footage.

McDonald J: had to determine whether an interlocutory injunction should be issued. Required consideration of whether there was a serious question to be tried and where the balance of convenience lay. Refused to grant injunction; in this case there was a strong case of trespass to land which would result in non-insubstantial damages which were regarded as being an adequate remedy for W and also given the fact that there was a significant dispute as to a question of fact (whether there were signs in place).

As a general rule, as Channel 7 is the trespassor; the video taken in the course of the trespass is considered to be the ‘fruits of the trespass’. The issue here was whether the plaintiff was able to restrain the defendant who was both trespassor and broadcaster from using the fruits of the trespass. As a general rule, because trespass is a tort the principal remedy is an award of damages; but there may be circumstances in which it can be argued that an interlocutory injunction should be granted to ameliorate the effects of the trespass. This can occur where the defendant broadcaster is engaged in a continuing trespass on the plaintiff’s property or as in this case, in circumstances where the plaintiff wants to restrain the defendant’s use of the fruits of the trespass.

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ABC v Lenah Game Meats Pty Ltd (2001) 185 ALR 1 (fruits of the trespass)
•   Per Gleeson J: the law of breach of confidence provides a remedy where the nature of the information obtained by the trespasser was such as to permit the information to be regarded as confidential. But, if that condition was not fulfilled, then the circumstance that the information was tortiously obtained in the first place was not sufficient to make it unconscientious of a person into whose hands that information later came to use it or publish it
•   Compare this case to Lincoln Hunt v Willessee where the camera crews entered premises with cameras rolling and whose conduct amounted to a trespass, but in this case the ABC was provided with the footage which was obtained by a separate party
o   In this case the party publishing the material (ABC) was not a party to the trespass; if they were then the court would have to consider the question postulated by Young J in Lincoln Hunt where he held that prima facie, if a film is taken by a trespasser, made in circumstances involving private premises in respect of which there is some evidence that publication of the film would affect goodwill, then the case is one where an injunction should be seriously considered
•   Per Gummow and Hayne JJ: in Lincoln Hunt Young J stated that the court has power to grant injunctions to prevent the publication of footage taken by a trespasser even though no confidentiality is involved. The court will only intervene if the circumstances make the publication unconscionable.
o   Held that the maker of the film may be regarded as a constructive trustee of the copyright of the footage for the benefit of the plaintiff conferred by s 98 of the Copyright Act and as a result it would be inequitable for the maker of the film to broadcast the footage against the wishes of the plaintiff and the broadcast would be subject to an interlocutory restraint

Private nuisance
•   Occurs where the defendant does not directly go onto the property but through their indirect conduct they cause an interference with land

Victoria Park Racing v Taylor
Facts: the plaintiff operated a race course business at Victoria Park where they charged patrons a fee to go onto the property where they put up billboards which informed patrons of upcoming races. Mr Engles owned property adjacent to VP where he entered into a contract with T to build a viewing tower that faced the property. Every day, E went up the tower and provided a commentary which was broadcast by the Commonwealth Broadcasting Corporation. VP decided they wanted to stop the broadcasts and they brought proceedings against all defendants. They argued a number of bases; that a tort of unfair competition ought to be recognised (refused), that there had been copyright infringement (refused), the principle cause of action argued was whether the conduct of the defendants amounted to the tort of private nuisance. In this case, there was a division of opinion between the majority and minority as to the types of interests protected by tort.

Found: in order to make out a claim, the interest must be recognised at law to be protected by the tort of private nuisance and not every incidence of protection is recognised and protected by the tort. One of the most obvious examples of an unprotected interest is that sought to be protected in this case. The majority stated that the common law doesn’t recognise that freedom from view/inspection and privacy are interests protected by private nuisance. The law has been that nuisance does not protect freedom from view or inspection or privacy. If someone can look into your property from their property they commit no nuisance because freedom from view/inspection and privacy are not legally recognised interests for the purposes of private nuisance. The majority took an absolute view of the particular issue and because they did so they stated that there was no cause of action that VP could have against T.

Minority: took a less absolute view and accepted that the starting point was that generally private nuisance doesn’t protect against freedom of view/inspection or invasion of privacy but this was not an absolute prohibition. They went through the cases and noted examples in which conduct which was of the nature of infringement of freedom of view etc gave rise to liability in private nuisance (resulting in interlocutory injunctions to restrain the conduct). However, there may be circumstances where the quality of the defendant’s conduct is such that the general rule should be derogated from.

Raciti v Hughes (1995) 7 BPR 14, 837
Facts: R lived in a property and H lived on an adjacent property. This was an ex parte case and so have to take R’s allegations with a grain of salt. R argued that H had engaged in an irregular form of conduct. H had set up floodlights and video cameras which were directed at R’s backyard and had attached to them motion sensors such that when anyone moved in R’s backyard the lights would come on and the cameras would start. R wanted an interlocutory injunction to restrain H and Young J had to decide whether there was an actionable private nuisance

Young J: freedom of view are not protected by the tort but the reasoning of the minority judges suggested that there may be circumstances in which the quality of the defendant’s conduct could transform the case to where relief could be granted. In this case, he accepted that the conduct suggested that they had engaged in the crime of ‘watching and besetting’ and the quality of the defendant’s conduct in the circumstances took it outside the general view that freedom of view etc was protected and issued an ex parte injunction.

Limitations of trespass and private nuisance as a means of privacy protection
•   The tort has to occur in relation to land in which you have a possessory interest; if not on your land at the time the trespass occurs then both of the torts will be useless.
•   The torts are land-based causes of action and founded on you having a possessory interest in the land and the tort occurring with respect to the land

Defamation and Privacy
•   Not as important because the requirement of public interest is not required for a defence. If defamatory imputations can be extracted from the publication then would have a cause of action for defamation.
•   Compare Ettingshausen with a Canadian case in which a politician sued a newspaper for a photograph and indicated that the politician was balding and there was commentary which exposed politician to ridicule. He instituted proceedings against the newspaper claiming defamation and the newspaper successfully defended this on the defence of substantial justification on the fact that it was substantially true and had photos to prove it. This may have been differently decided if it had occurred in NSW

Privacy: overlaps with negligence and defamation

“GS” v News Limited (1998) Aust Torts Reports 81-446 (overlapping of privacy with negligence and defamation)
Facts: GS was a witness before the medical tribunal of NSW in which her former psychiatrist was being disciplined. A photo was taken of GS on the arm of her husband outside the Tribunal. When the photo was published the face of GS was pixelated but her husband’s was not which she claimed allowed for the disclosure of her identity. GS relied on a range of causes of action: defamation would not be useful because it was noted that what GS was complaining about was not false statements but true statements which disclosed her identity which should have been statutorily protected.

Levine J: found that the Medical Practice Act 1992 didn’t confer a private cause of action on the part of GS and therefore breach of statutory duty was unarguable. In the circumstances, GS was allowed to plead a cause of action in negligence but the other cause of action relied upon was a tort of invasion of privacy. GS claimed that under the relevant legislation she had been guaranteed anonymity as a witness and this had been undermined by the effective disclosure of her identity and amounted to an invasion of her privacy.

Found that there wasn’t an arguable case for invasion of privacy. The case needs to be read in light of ABC v Lenah Game Meats and also another case where the ABC is being sued by a woman who was named as the victim of sexual assaults in 3 instances which the reporter ought to have recognised that is strictly forbidden. The woman is arguing a tort of invasion of privacy that she has been deprived of anonymity which the legislation guarantees and she has a cause of action as a natural person. GS would therefore be decided differently today in light of ABC v Lenah Game Meats

Covert surveillance and images obtained under a search warrant

Donnelly v Amalgamated Television Services Pty Ltd Pty Ltd (1998) 45 NSWLR 570
Facts: cameras were taken on a raid; D was taken in his underwear and Channel 7 broadcast the footage on one of their current affairs programs. D sought an interlocutory injunction restrain the broadcast of this.

Hodgson J in Eq: granted the injunction on the basis that the police footage and the disclosure of the footage suggested an abuse of power on the part of the police and the knowing participation of that abuse of power by Channel 7. There are arguments made by H which are useful to note in passing. There was an issue of whether the footage was in the nature of confidential information or whether it should be viewed as private. The distinction is vital because the approach in England is to treat invasions of privacy by reference to breaches of confidence. Suggested that there is more than a nuance of difference between privacy and confidentiality as concepts and not everything described as private in confidential. Also, H notes what could be considered ‘private’. It is consistently recognised that what is really subject to the injunction is that which is not observable from the street and anything in terms of the footage reflecting what could in fact be observed is not private and what was private was the footage taken inside the house in areas not exposed to public view. H’s reasoning in this case reinforces the restrictive nature of what can be characterised as private, which is taken up by Gleeson J in ABC v Lenah Game Meats. When looking at a case for invasion of privacy, must consider the various tortious causes of action a plaintiff could possibly have.

BREACH OF CONFIDENCE

•   See Coco v Clark for the classic modern statement for the elements of the cause of action for breach of confidence:
o   Needs information which is confidential in nature
o   Must be imparted by the plaintiff tot the defendant in circumstances where the defendant is known of the knowledge of the fact of the confidentiality
o   The defendant then needs to disclose the information to the detriment of the plaintiff
•   Can breach of confidence be deployed to protect information that may be disclosed through the press
o   Leading case: Argyle v Argyle
-   Duke and Duchess were getting divorced and duchess decided she would disclose information about her ex-husband in the newspapers
-   Court accepted that the disclosure of marital secrets had the quality of confidence about it; parties would be aware that they were under an obligation of confidence and the disclosure of secrets was detrimental in this case to the Duke of Argyle
-   Indicates that there is the possibility for the application of breach of confidence in media cases; also note, from this case, that here it was clear that the nature was confidential (because the nature of the relationship was marital); the less stable the relationship is, the less likely courts will find that the information was imparted in circumstances where both parties should be fixed with knowledge that the relationship imparted confidence

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PERSONAL SECRETS

Stevens v Avery [1988] Ch 449
Facts: S was a woman and her husband was accused of murdering another woman. The first defendant was a close friend of the plaintiff; the plaintiff disclosed to the 1st defendant that she had been engaged in a lesbian relationship with the murdered woman. This was unknown to the police. The plaintiff told the 1st def. that she was telling her this in confidence; whereby the 1st def. went to the Sun newspaper and told her the story. The plaintiff sought to restrain publication of the disclosures.

One of the issues was whether the information was confidential; imparted in situations that gave rise to a relationship of confidence; and whether there was detriment through the disclosure. One argument raised was that equity shouldn’t be relied upon to protect confidential information in relation to grossly immoral conduct and an adulterous lesbian affair was grossly immoral conduct so that there was no air of confidence.

Found: the Vice-Chancellor accepted that this evidence could attract the necessary quality of confidence; wasn’t such that public policy suggested it should be unprotected. Also, the relationship between S and the deceased was more than a casual affair so that the information could be considered confidential. There was found to be an obligation of confidence and there was detriment suffered. A cause of action for breach of confidence was found to be made out

Barrymore v News Group Newspapers Ltd [1997] FSR 600
Facts: B was a TV presenter on UK TV and was happily married. He was a closet homosexual and started seeing a man called Paul. The relationship ended badly and P was employed as his personal assistant and B fired P. P, who was put out, went to the Sun newspaper and sold them the love letters written between them and gave an interview about B’s sexual orientation. The Sun called B for a response and alerted him to the possibility of a publication and B sought an injunction to restrain publication. The issue in this case was whether there had been a confidential relationship between the parties

Jacob J: accepted that there was something more than a casual affair, although this was considered the ‘outer extremities’ of the relationships that would be considered confidential. Therefore P should have realised that the information was received in circumstances of confidence and it was clearly to the detriment of B to disclose the information. After the letters, there was a contract signed between B and P under which he agreed not to disclose personal information; the judge found that didn’t need to rely on contractual terms and equity would recognise a confidential relationship.

A v B (a company) [2003] QB 195
Facts: A was a premier league footballer who was caught sleeping with a flight attendant and his children’s nanny unknown to his wife. They were both offered ₤30,000 to tell their stories to a newspaper. The newspaper sought a response from A, who sought an injunction and suppression orders

Found: at first instance, both were awarded and the newspaper appealed. From Barrymore, the decision was made before the Human Rights Act where courts must consider the impact of the common law and equity of various rights which are enshrined in the Human Rights charter. In this case, the UKCA found that the right of the flight attendant and nanny to freedom of expression prevailed over the right of the footballer to privacy.

Reasons for judgment: the nature of the relationship was a casual one; it wasn’t a marital or de facto relationship which didn’t give rise to an obligation of confidence. In addition, there was recognised a notion of the public interest and the media should be allowed to write for the Public Interest and also because footballers serve as role models and are in the prurient Public Interest.

Hitchcock v TCN Channel 9 (2000) Aust Torts Reports 81-550
-   Hitchcock accused Page of stealing her car, cash and underwear. Page then pursues an AVO against Hitchcock – which was not unusual given her past (she had done it to a previous employer). Hitchcock paid her 23K and under the agreement placed her under a duty of confidence in a confidentiality agreement.
-   In March 2000 the SMH got hold of the story and threatened to publish the story. They then got in contact with Hitchcock [under DAs22(2A)].
-   She then sought an injunction but the only interlocutory injunction the judge was prepared to give was for those matters that specifically related to the AVO proceedings between them.
       Equitable restraint for wrongful disclosure:
-   The court looked to the test in Coco v AN Clark but did not think that the plaintiffs had conceded that Page’s testimony was not of sufficient gravity. Austin J did allow that the agreement would prevent her from disclosing information about her employment and court actions but said that it did not follow that the action for breach of confidence from the signed contract extended to domestic matters and secrets.
-   The court in this instance did not find that the Defendant was under a duty of confidence and the judge makes a distinction between a live-in butler and an employee – so the confidence would be related to that information that the employment involved. So she was not under a ‘special duty of confidentiality, and the mere employer/nanny relationship is not sufficient to protect them from disclosure’ (65 and 67 - 80) for those matters that she revealed about her employ within the household.
-   Note: After this, Hitchcock appealed and was successful in maintaining that she was employed under a duty of confidence: she won on the basis that the there was an implied duty of confidence – Spieglman CJ and Mason J, applying the (first, discussed above) second and third limbs of the test in Coco v AN Clark: ‘that it must have been imparted in circumstances importing an obligation of confidence’.

Campbell v MGN Ltd [2004] 2 AC 457
[Post Douglas v Hello!]
-   Naomi Campbell had disclosed her issues with anger and alcoholism  but not her battle with narcotics
-   Daily mirror got this information – got photos of her leaving an Narcotics Anonymous meeting and a publication was soon published
-   C instituted proceedings for BOC to the invasion of privacy
-   The House of Lords, by 3-2, found in favour of the supermodel who sought damages for the publication by the Daily Mirror of articles and photographs concerning the fact that she was receiving treatment by Narcotics Anonymous for her drug addiction.
-   The model had publicly denied that she was addicted to drugs, and the Court of Appeal had held that by mendaciously asserting to the media that she did not take drugs, she had rendered it legitimate for the media to put the record straight. The House of Lords nevertheless held that she was entitled to compensation.
-   Awarded $8000 pounds for emotional stress
-   Issue: whether there was a cause of action for the invasion of privacy and BOC?
-   HOL: personal privacy should be protected through BOC.
-   Lord Nicholls expressed a strong preference for a test based on whether in regard to the disclosed facts ‘the person in question had a reasonable expectation of privacy.’ He rejected Gleeson CJ’s formulation in Lenah Game Meats that asks whether the disclosure ‘would be highly offensive to a reasonable person.’ This test, according to Lord Nicholls, is stricter than his proposed ‘reasonable expectation’ test.
-   Personal information about her health is highly confidential and it is up to C to disclose this information and she has the ultimate say on what she discloses
-   The premise of the NA group is the anonymity of the group – hence public knowledge is a breach of Confidence
-   The publication destroyed her anonymity- her presence in her narcotics group is now common knowledge
-   It is therefore, unknown as to whether the courts would favour this test in Australia as the ‘highly offensive’ test goes ‘more properly to issues of proportionality; for instance, the degree of intrusion into private life, and the extent to which publication was a matter of proper public concern. This could be a recipe for confusion.’
-   Yet the court added that this test of reasonability once the information is identified as ‘private’ in this way, the court must balance the claimant's interest in keeping the information private against the countervailing interest of the recipient in publishing it. Very often, it can be expected that the countervailing rights of the recipient will prevail.’

Giller v Procopets [2004] VSC 113
P had been in de facto relationship and recorded a sex tape. Tried to get damages but did not bring evidence of psychiatric illness or damage. Examined the tests in Moorgate tobacco: “obtaining and using to the detriment” It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. The court also said that the plaintiff had to establish the tests in Talbot v General TV Corporation to show:
a.   A confidential relationship
b.   The portrayal of confidential info
c.   An unauthorised use
d.   The suffered injury and entitlement to damages drawing from that
The court points out [160] that damages are a common law remedy and breach of confidence is Equity: you can get restitution or an account of profits but here there were no profits generated by the display of those videos.
The court then [161] said that apart from the exceptions in defamation, trespass to land or person, you cannot get mental distress damages for common law. Where you have physical injury you may get mental distress that is parasitic to the primary physical harm: so you need some sort of negligence occasioning nervous shock: Wilkinson v Downton (bad broken leg joke).
Note the three part test: (i) that the defendant wilfully did an act or made a threat in relation to the plaintiff (ii) at the time the act was done it was calculated to cause harm to the plaintiff (iii) as a result of the act the plaintiff suffered physical or mental injury – that has to be more than simply ‘annoyance and distress’.
Traditionally breach of confidence in Equity cannot be used to get damages and the courts would be loathe to open the floodgates in this case; the court said at 186 that ‘to allow such a cause of action may result in a flood of litigation’.

VISUAL IMAGES

Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804
**The taking and publication of photographs using invasive forms of photography can be treated as a form of breach of confidence**
While Mr Hellewell was taken into custody he was photographed under the Police and Criminal Evidence Act. Later on, local shop owners had arrangements with the Police to give them photos of convicted criminals.
-   There was recognition of visual images and that photos can constitute confidential information. A breach of confidence can be an unauthorised use and disclosure of that confidential information. “If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgement, as surely amount to a breach of confidence...
-   “In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. It is of course, elementary that, in all such cases, a defence based on the public interest would be available.”Constructive relationship: that they were put on notice that it was confidential – that it was intended to be private – that there was an expectation of privacy. The Police had obtained the photo under statutory powers but limited to using them for statutory proceedings – and that preventing crime was pursuant to that statutory aim.

Douglas v Hello! Ltd [2003] EWHC 786

-   Catherine Zeta Jones and Michael Douglas wanted to sell the rights of their wedding and entered into a contract with OK! magazine
-   D had security imposed on the wedding in terms taking photographs and people entering the wedding
-   Paparazzi took photos – tried to sell them to some magazine in Spain
-   Photos were published by Hello! to pre-empt the official photos
-   Courts: BOC possible due to breach of personal privacy
-   D took steps to restrict who could take photographs, as was their right
-   Trial judge awarded damages of 3750 pounds though they wanted 500,000
-   Also awarded 7000 pounds in relation to the profits lost due to sale to OK! magazine
-   OK! magazine was awarded greater cost as they were the greater loser financially
-   English CoA – in England there are 2 causes of action of BOC:
o   1. Proprietary sense action – traditional analysis - to protect commercial confidences
o   2. BOC in relation to breach of personal privacy – the test here is rather the offensive conduct test in Lenah Game Meats – protects personal confidences
-   Courts found that the trial judge was correct in terms of OK! magazine in they were the biggest loser
-   Also found that the Trial Judge had erred – Trial Judge had accepted that the wedding was a private wedding and that they had entitlement to control elements of it
-   Trial Judge was correct that the photos were an invasion of privacy
-   BUT erred in the sense that they had allowed both Commercial loss and Private lose – commercial being loss of contract and private being distress
-   You cannot have both breaches of confidence at the same time i.e. either your privacy has been invaded or that your commercial prospects have diminished
-   Commercial Interests of Images and Privacy: the Court accepted that the Douglas’s’ privacy are commercial interests and are essentially, trade secrets. The value of that depends on the control of published pictures of their commercial interests.
-   Commercial Loss: the loss to OK! Was obvious and that it affected the contract between OK! And the Douglas’s: both by being forced to re-arrange their plans for photo approvals, incurring extra expenses and loss of syndication receipts.
-   Constructive Notice: the Court said that the defendant’s consciences were tainted [equitable principle of clean hands] and that they did have constructive notice and that the security measures should have made these patently obvious: ‘these Defendants kept their eyese shut lest they might see what they undeniably knew would have become apparent to them. Breach of confidence apart, had the Hello! Defendants opened their eyes they would have seen that the taking of the photographs which they bought had involved at least a trespass.’
-   Control: the court noted that the Douglas’s wanted to have control and that control was not an improper objective of the law of confidence: ‘that certain information should not be published or that copies of certain documents should be destroyed or returned or that abuse of a trade secret should be barred to a person are all both familiar aspects of the law of confidentiality and aspects of control.’ The court said that control was ‘another factor in the overall balance between confidence and freedom of expression.’

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Theakston v MGN Ltd [2002] EMLR 22
-   T was a celebrity in England – gave interview in relation to private life and sexual details
-   visited a brothel – on drugs and drunk
-   2 prostitutes – and interacted with them in a variety of sexual acts
-   Pimp took photos of him and blackmailed T – wanted a large amount of money – said they would leak to the media
-   Sold the photos to a Sunday newspaper – who contacted T and in turn sought an Injunction to the story
-   Issue: information – what was the information being conveyed here?
o   Issue of characterising the information
-   Issue: objective
-   Court issued an Injunction
-   1.    There are two types of information here: written word and photographs
o   Written word – statement of basic facts, and detailed exposition of what had occurred
o   Photographs: they convey information much more readily and with much more impact then the written word – different typed of information then the written word – more provocative
o   Different consideration apply – what was written was hardly offensive
-   2. Was this offensive to an ordinary person?
o   Equity- as a general rule treats as confidential information in relation to marriages and de facto relationships ( sexual )
o   They didn’t view the information as confidential – was unable to establish a relationship of confidence between the parties
o   Conflict between T and the Prostitutes – who want to express there freedom of expression
-   3.Injuntions
o   Withheld the photos as they were most detailed and offensive
o   However allowed the detailed account of what happened in the publication
o   Draws a fine line between photographic representation and written representation.

Creation Records Ltd v News Group Newspapers Ltd (1997) 39 IPR 1
-   Rock band oasis – how much control can you have over the photos of a location – Oasis were filming a cover for their new album with a Rolls Royce in the bottom of the pool. At the time a photographer [Seeburg] booked in as a guest and although guests were allowed to take photos, they were not allowed to take photos of the stage setup – it was surreptitiously taken. Seeburg was an invitee of the hotel and presumably had an implied licence to walk around the hotel and he said that there was no real attempt to stop him from taking photos. The magazine had said that there was a ring of security around him but that they had managed to get the photo.
Surreptitious acquisition of confidential information
-   ‘Mr Seeburg must have been aware of the efforts to prevent people taking photographs of the shoot and can only have succeeded in doing so but being surreptitious and far from being as open as he himself deposes… By evading the security efforts by luck or guile he nevertheless acted in breach of the confidentiality to which the scene was subject.’ P.2-40 or para 40 of p.7\
-   See also Shelley Films v R Features [1994] EMLR 134 that ‘Shelley considered these signs necessary for some good reason connected with filming and the filming of Mrs Shelley’s Frankenstein in particular, which he was not unilaterally at liberty to impart to others’ at 148-9.
-   Unconscionability is the basis for the action but does not breach of confidence make: the action itself: information of a confidential quality, acquired in circumstances that impart confidentiality.
-   So it was the security around the hotel and the probability that Mr Seeburg would have to be surreptitious – ‘he did so because he knew that photography was not permitted and that he was being allowed to remaiin in the restricted area only on the basis that photographs would not be taken of the actual shoot.’ Para 30, p.9

IDENTITY

Falconer v ABC [1992] 1 VR 662
   The ABC wanted to broadcast the identity of a former witness – the Police (Falconer) wanted to prevent that from happening. Note that the Police had not sought an injunction against the publishing of the information at the trial in which the informant was used.
At 208 the court applies the American Cyanamid principle to ask whether there is a serious question to be applied and test the balance of convenience: note that this is NOT applicable in Defamation law. Standing: The Police were given standing because they owed a duty of confidence to the witness [another example may be where Doctors can sue on behalf of their patients].
•   The argument of the parties;
o   ABC argued that the information had lost confidentiality by being revealed in the court case.
o   The Police argued that the information itself was not confidential but the current whereabouts of the witness was confidential and the photo would enable people to identify the witness.
•   The Court said that the photos were part of court exhibit and the litigation had long past, none of the photos were published in the press at the time [1980s]…that is a far cry form the circulation achievable by a nation TV current affairs article in 1991. [Ashley J]
•   Justice Ashley at 212: “where confidentiality attaches to information such that equity would prevent the unauthorised disclosure, equity may also protect that information form disclosure by means of the use of non-confidential material.”
So the courts will be willing to impose that duty of confidence and injunct parties from making use of that information to their detriment:
•   If the information is private and would never be given voluntarily, then the court may impose a duty: ‘The basis for equitable intervention to protect onfidentialty is that it is unconscionable for a person who has received information on the basis that it is confidential subsequently to reveal that information.’ Stephens v Avery, Browne-Wilkinson VC [482 at e]
•   The basis for the balance lies in Stephens v Avery (483 at c); ‘To my mind this case undoubtedly does raise fundamental difficulties as to the relationship between on the one hand the privacy which every individual is entitled to expect, and on the other hand freedom of information.’
   A breach of confidence can be very wide – in both the use and disclosure of that information.

GOVERNMENT INFORMATION

AG v Guardian Newspapers (No.2) [1990] 1 AC 109
-   AG took action to refrain the spy capture publication
-   Many media outlets tried to cover the story and all outlets were prosecuted through contempt and BOC
-   Issue:
o   Indicates a relaxation of the 2nd limb of BOC
o   Person receiving the information knows its confidential
o   Must be relationship between the person disclosing and imparting the information
o   The information itself must be confidential
o   There is an obligation of confidence
o   HOL: there might be certain types of information that is so clearly confidential that the nature of the information does not require a relationship to exist – eg state secrets – any circumstance would allow the express realisation that the information is confidential
o   The information itself fixes a liability to anyone discloses such information
-   even if you accept that there are some types of information that are self confidential in nature there needs to be a different standard of disclosure for governmental secrets
-   The protection of official secrets – equitable principles require there be a sufficient detriment due to the disclosure – there needs to be a higher threshold then normal due to the nature of information
-   The spy capture book had already been published in the US
-   I.e. the information was already available to anyone in the US
-   Courts held that injunction was futile as a result

Minister for Mineral Resources v Newcastle Newspapers Ltd (1997) 40 IPR 403

-   Mrs Christenson received information about ministerial minutes.
-   She then gave them in the media which published it. Justice Young said the law regarding the government and public interest is different because the government must show positive detriment to the public interest – not just embarrassment [406]. In Commonwealth v John Fairfax & Sons Ltd & Ors Justice Mason said: “It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government…Unless disclosure is likely to injure the public interest, it will not be protected”.
-   A court will 'restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged' (Fairfax at page 50). The plaintiff must show that there will be an unauthorised use of such information to the 'detriment' of the plaintiff. In relation to what constitutes 'detriment' to a government in this context, Mason J said in Fairfax (at pages 51-52): 'The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.
-   This means that a real prejudice needs to be shown.
-   Such an example may be where the government is involved in claims for compensation being made against it. Justice Young goes on to say that he does not want to “encourage disloyalty” but to consider the “often overriding public interests which mean the that the court will not give its aid by injunction to prevent public discussion of public issues.” [408]

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DISCHARGING INJUNCTIONS

   Getting an Injunction:
•   To obtain one you must have a ‘serious question to be tried’; Megarry J’s test in Coco v AN Clark that it not be ‘trivial tittle-tattle, however confidential’ [at 48]
1.   that the information in dispute retains its confidential quality
2.   that the defendant acquired the information in circumstances imposing a duty of confidence
3.   that the defendant has, or proposes to disclose or use it in breach of confidence
•   Balance of convenience: Whiskisoda, But it would be much easier to use the American Cyanamic principles.

Westpac Banking Corporation v John Fairfax Group (1991) 19 IPR 513
-   foreign exchange transaction matters
-   letters that were prepared was leaked to Fairfax
-   Fairfax threatened to print them
-   Westpac got interlocutory injunction to restrain publication of the letters
-   Extracts of the letter were read in parliamentary proceedings and SA press disclosed this in the media
-   F wanted the injunction to be discharged due to this disclosure. They said that the information was in the public domain and that publishing the information was in the public interest. (A 3rd party may not owe a duty of confidence if the information has entered the public domain and so has lost its confidential quality).
-   “The Tribune” – reproduced the letters in their entirety and sold them in Queens Square
-   Issue: Whether the information had passed into the public domain to such an extent that interlocutory injunction was futile and should be discharged
-   Did the publication in SA and Queens Square amount to this issue?
-   The Tribune – only 2 copies were sold – hence was not sufficient enough to amount to public knowledge – the rest of the copies were destroyed
-   The court made the point that rarely will an injunction be reused or discharged on the basis of the public domain defence; because if they make a mistake they will effectively destroy the plaintiff’s cause of action.
-   The Fair and accurate reports that were reported in the parliament – only gave readers the general nature of the allegations and not the details that were encapsulated in question
-   In order to destroy the confidential nature of the information – needs to be a detailed account of the information
-   Hence the interlocutory was maintained and held to be not futile

THE PUBLIC INTEREST DEFENCE

-   Exsits in English law – freestanding public interest defence ( PID)
-   The narrow approach – encapsulated in the ‘iniquity rule’
-   Iniquity rule
o   Can be used either in Liability or Defence
o   In Aus is not so expansive as in England
-   No PID in Australia

   The Courts have consistently said that the public interest is not always in the public interest

   X v Y [1998] 2 All ER 648
This case illustrates the approach of the UK courts to the question of the public interest in disclosure of HIV status. In this case a newspaper company obtained information that two practicing doctors in one particular hospital were HIV positive but were allowed to continue their practice. Upon knowledge of this information leakage, the hospital sought and obtained an injunction restraining the newspaper from using that information. The newspaper went on to publish the information in a number of articles.
The plaintiff brought the matter to court, seeking a further injunction from disclosure of the names of the doctors. The Court held that the public interest in preserving the confidentiality of hospital records identifying actual or potential AIDS sufferers outweighs the public interest in the freedom of the press to publish such information. Justice Rose ruled in this case that; ‘the public interest in preserving the confidentiality of hospital records identifying actual or potential AIDS sufferers outweighed the public interest in the freedom of the press to publish such information, because victims of the disease ought not to be deterred by fear of discovery from going to hospital for treatment, and free and informed public debate about AIDS could take place without publication of the confidential information acquired by the defendants.’ [653]
Thus, preservation of confidentiality is the only way of securing public health; otherwise doctors will be discredited as a source of education, for future individual patients 'will not come forward if doctors are going to squeal on them'. Consequently, confidentiality is vital to secure public as well as private health.
The court basically said that there is a primary duty to the patient to keep medical information confidential, which may only be overridden by a doctor when it is in the public interest. Rarely, is it legally advisable to breach confidentiality to serve the wider public interest of protecting others. Only when there was a clear infection risk could a doctor be legally liable for failure to disclose: see W v Egdell [1990] 1 All ER 835:
The psychiatrist in this case believed that it was imperative that the patient be kept in secure conditions [serial killer]. The psychiatrist released his report to the authorities with the intention that, in any later application by the patient for discharge, the tribunal would see it. An action was brought against him for breach of confidentiality. The claim was dismissed and the Court of Appeal dismissed the appeal. It was held that Dr Egdell was clearly justified in his actions.
   ‘A consultant psychiatrist who becomes aware, even in the course of a confidential relationship, of information which leads him, in the exercise of what the court considers a sound professional judgment, to fear that such decisions may be made on the basis of inadequate information and with a real risk of consequent danger to the public is entitled to take such steps as are reasonable in all the circumstances to communicate the grounds of his concern to the responsible authorities.’ Bingham LJ

   Where a doctor, in the exercise of her or his professional judgment, fairly and reasonably believes that a person's life is immediately endangered and that urgent action is required, she or he must act unhesitatingly to prevent injury or loss of life even if there is to be a breach of confidentiality.
Australian Cases such as Finch v Sparrow (1986) 11 FCR 102 have restated professional breach in the public interest:
‘Solicitors, like doctors, have a duty of confidence to their clients. However, when they believe that the life or safety of others is threatened, they are entitled in the public interest to disclose information confided to them by their clients in any way that they consider to appropriate.’ Brolga J

Sullivan v Sclanders (2000) 77 SASR 419
   The public interest defence arose from Gartside v Outram: “that there is no confidence as to the disclosure of iniquity. You cannot make me the confidant of a crime or a fraud, and be entitled to close up my lips upon any secret”.
   This is also known as a “clean hands” principle reflected in Stephens v Avery where the court examined the criminality of the grossly immoral conduct of the plaintiffs v that of the defendants [482 J]: ‘The sexual conduct of the plaintiff was not so morally shocking in this case as to prevent the third defendant…from spreading the story all over its front and inside pages.’
   There is essentially no duty to keep such affairs confidential – ‘
   Australian Approach: Kirby referred to a wider interest in saying that merely because there is an element of unclean hands does not automatically give rise to a defence;
•   “It is simply an instance of the wider category of the public interest in disclosure which may sometimes, even if rarely, outweigh the public interest in confidentiality.” A v Hayden (No 2) at 545
•   Gibbs in the same case said ‘I prefer to deal with this publication by reference to a general principle of ‘public interest’ rather than by reliance upon a narrower defence, developed for specialised cases, to justify the publication of particular iniquities.’ [ibid.] So for now, unclean hands as a defence is a rare event.
•   But note that Australian law is still ambivalent as to whether it will adopt Justice Gummow’s narrow view, or whether it will adopt a broader balancing approach of the public interest and the confidentiality as sought out in Campbell.
•   As for Goveernement Information, because the government's ability to restrain disclosure of information depends on a balancing of the public interest, a court may not restrain disclosure of 'things done in breach of national security, in breach of the law (including fraud) and ... matters which involve danger to the public' (Commonwealth v John Fairfax & Sons Ltd at page 57).