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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